Citation Nr: 1304869 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-39 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a left shoulder disability. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a left hip disability. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a chronic neck strain. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for a left shoulder disability. 7. Entitlement to service connection for a left hip disability. 8. Entitlement to service connection for a right hip disability. 9. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to October 1988. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Winston-Salem, North Carolina, maintains jurisdiction over the Veteran's appeal. Additionally, the Veteran's January 2009 claims included a claim for service connection for "neck with secondary headaches." The July 2009 rating decision on appeal found that new and material evidence had not been submitted to reopen a claim for service connection for residuals of a neck strain, noting that the Veteran was now characterizing his neck claim as one for headaches. In his August 2009 notice of disagreement, the Veteran appealed the denial of service connection for headaches, but did not mention his neck strain. Nevertheless, the July 2010 statement of the case listed the issues on appeal to include whether new and material evidence had been submitted to reopen a claim for residuals of a neck strain with headaches. In his substantive appeal, the Veteran indicated his desire to appeal all issues listed on the statement of the case. Thereafter, in a subsequent September 2011 rating decision, service connection for headaches was granted as directly related to service. Accordingly, the issue of service connection for headaches, to include as secondary to a neck strain, is no longer on appeal. Nevertheless, because the Veteran filed a timely substantive appeal regarding the issue of whether new and material evidence has been submitted to reopen a claim for service connection for residuals of a neck strain, that issue remains before the Board. Next, since the issuance of the most recent September 2011 supplemental statement of the case, VA medical records and VA examination reports have been associated with the Veteran's virtual VA claims file. The newly submitted evidence was not accompanied by a waiver of RO consideration. Nevertheless, the Board finds that, except as otherwise discussed below, those VA medical records and VA examination reports do not relate to or have a bearing on the issues on appeal and therefore, do not constitute additional pertinent evidence. Accordingly, an additional remand to the RO specifically for consideration of that evidence is unnecessary. 38 C.F.R. § 20.1304 (2012). As a final introductory matter, the Board observes that through at least June 2011, the Veteran was employed. The Veteran has not contended, and the record does not otherwise suggest, that he his unemployable due to his service-connected right knee disability on appeal. Accordingly, such a claim has not been raised by the record and, thus, need not be further addressed at this time. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to service connection for a low back disability and a left shoulder disability and an increased rating for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran's claims of entitlement to service connection for a low back disability, residuals of a chronic neck strain, a left shoulder disability, and a left hip disability were denied by an April 1990 RO decision. 2. The evidence presented since the RO's April 1990 rating decision raises a reasonable possibility of substantiating the Veteran's claims for service connection for a low back disability, a left shoulder disability, and a left hip disability. 3. The relevant evidence submitted since April 1990 is either cumulative, does not relate to an unestablished fact, or fails to raise a reasonable possibility of substantiating the Veteran's claim for service connection for a neck disability. 4. There is no competent or credible evidence that the Veteran currently suffers from a left hip disability or that his claimed left hip disability is related to his active service. 5. There is no competent or credible evidence that the Veteran currently suffers from a right hip disability or that his claimed right disability is related to his active service. CONCLUSIONS OF LAW 1. The prior RO decision of April 1990 is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been presented to reopen the Veteran's claims for service connection for a low back disability, a left shoulder disability, and a left hip disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has not been presented to reopen the Veteran's claim for service connection for a neck disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 5. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2009 - prior to the initial RO decision in this matter - that addressed the notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, as the Board has determined that the Veteran has submitted new and material evidence with regard to his claim for service connection for a low back disability, a neck disability, a left shoulder disability, and a left hip disability, an extended discussion of the duties to notify and assist particular to a claim to reopen is not necessary. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (outlining the notice requirements for claims to reopen). Regarding the Veteran's claim to reopen his previously denied service connection claim for a neck disability, the February 2009 letter informed the Veteran of the reason his claim was previously denied, as well as the new and material evidence necessary to reopen his claim, thereby complying with the mandates of Kent v. Nicholson, 20 Vet. App. 1 (2006). Neither the Veteran nor his representative has asserted that the Veteran has been prejudiced by the manner of the notice provided. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA medical treatment, and records of his post-service private medical treatment. The Veteran was offered but declined an opportunity to testify at hearings before the RO and Board. The Veteran did not undergo a VA compensation and pension examination for any of his service connection claims being denied in this decision. Such examinations, however, are not required in this case. The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2). If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, with respect to the Veteran's claims for service connection for left hip and right hip disabilities, the Board has found that there is no competent evidence that the Veteran currently suffers from any specific disability. Further, with respect to those service connection claims, the Board notes that there is no competent indication that any of his claimed conditions are related to his active service. The Board acknowledges the Veteran's contention that each of his claimed conditions are directly related to service. However, the Federal Circuit has held that such conclusory generalized statements, absent any supporting evidence, do not necessitate examinations on their own. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). As there is no indication beyond the Veteran's generalized statements that his claimed conditions are related to his active service, the Board may consider the medical records already in the file without requiring a VA examination. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. New and Material Evidence The Veteran contends that the RO erred in refusing to reopen and grant his previously denied claims for service connection for a low back disability, a neck disability, a left shoulder disability, and a left hip disability. He asserts that on the basis of evidence he has now submitted, he meets the legal and factual criteria for service connection. For the reasons that follow, the Board finds that new and material evidence has been submitted to reopen claims for service connection for a low back disability, a left shoulder disability, and a left hip disability. However, the Board finds that new and material evidence has not been submitted to reopen the Veteran's neck service connection claim. The Veteran first sought service connection for low back, neck, left shoulder, and left hip disabilities in September 1989, shortly after his separation from active service. Following a November 1989 VA examination, the RO denied the Veteran's claims in an April 1990 rating decision. Specifically, the RO determined that there was no evidence that the Veteran had current or chronic disability of the low back, neck, left shoulder, or left hip. The Veteran did not file a Notice of Disagreement with the April 1990 rating decision and no additional evidence pertinent to the issues was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 1990 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The Veteran sought to reopen his claims in January 2009. In its July 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen the Veteran's claims for service connection for low back, neck, left shoulder, and left hip disabilities. The Veteran filed a timely Notice of Disagreement with this decision. The RO issued a Statement of the Case in July 2010, and the Veteran filed a timely Substantive Appeal. A previously denied claim will be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a). If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. New evidence is defined as evidence not previously submitted to agency decision makers, and material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Under this framework, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen his low back, left shoulder, and left hip service connection claims. Again, the Veteran's claims were initially denied because the RO found that there was no evidence of current or chronic residuals related to low back, left shoulder, or left hip disabilities. Since that time, new evidence has been added to the claims file, including VA treatment records, private medical treatment records, and statements made by the Veteran. Most significant are statements made by the Veteran during June 2010 VA treatment that he has experienced low back pain and shoulder pain since his military service. Also at that time, the Veteran's low back and shoulder ranges of motion were noted to be limited by pain. Regarding the Veteran's left hip claim, during November 2009 VA treatment the Veteran reported chronic hip pains, and in his August 2010 substantive appeal, the Veteran asserted that he was treated in service for hip conditions that had continued since that time. Accepting the Veteran's statements at face value, the Board finds that, in conjunction with the June 2010 VA treatment note indicating limited range of motion of the lumbar spine and unspecified shoulder, his statements raise the possibility that he currently suffers from low back disability and left shoulder disability related to his active service. Similarly, the Veteran's statement that he has current hip pain and has experienced hip problems since service, when presumed credible, raises the possibility that he currently suffers from a chronic left hip disability that manifested in service. As that evidence was not available at the time of the Veteran's initial denial, it is new. As it speaks to the reasons for the previous final denials, it is also material. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his low back, left shoulder, and left hip claims. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In contrast, the Board finds that new and material evidence has not been submitted to reopen a claim for service connection for a neck disability. The relevant evidence added to the record since the RO's April 1990 denial of service connection for residuals of a chronic neck strain consists of a February 2003 private treatment note showing that, while seeking treatment for right shoulder pain, the Veteran complained of a slight aching in the neck. Physical examination at that time revealed full neck motion and no evidence of tenderness along the paracervical or scapular areas. The Veteran was diagnosed with right shoulder tendinitis, but no diagnosis was made relating to the cervical spine. Significantly, at that time, the Veteran did not report ongoing neck pain, a history of neck pain since service, or otherwise attribute any neck pain to service. Furthermore, the Board notes that the February 2003 isolated complaint of slight aching of the neck predated the period on appeal by nearly six years, and therefore, is not evidence of a current neck disability. Indeed, VA and private treatment notes dated during or proximate to the period on appeal are negative for complaints or clinical findings related to any cervical spine disability. In fact, VA treatment notes dated in February 2010 and June 2010 indicate that routine physical examination of the neck revealed no evidence of cervical abnormality. Accordingly, the newly submitted evidence is not material, and the Veteran's appeal of the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a neck disability is denied. III. Service Connection Having reopened the Veteran's left hip service connection claim, the Board must now determine whether service connection is warranted. The Board will also address service connection for the right hip in conjunction with the left hip claim. For the reasons that follow, the Board finds that his claims must be denied. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Here, the Board questions whether the Veteran currently suffers from chronic right and left hip conditions. A review of the Veteran's private treatment records dated from February 2003 to January 2009 are silent for complaints or treatment related to the hips. In April 2004, the Veteran reportedly "enjoy[ed] good health" and had no complaints referable to any of his systems. Further, during February 2006 treatment for low back symptoms, the Veteran exhibited full hip motion. Significantly, during a July 2008 annual physical, the Veteran did not report any hip symptoms. It was noted that he remained active and had few to no complaints. Similarly, VA treatment records dated from September 2009 to December 2010 are negative for treatment or diagnoses related to the hips. The Board acknowledges the isolated report of chronic hip pain made by the Veteran during November 2009 VA mental health treatment. However, the record does not show that the Veteran was found to have any disability associated with his claimed hip pain, or that the Veteran has received treatment related to any hip disability. The Veteran's own statements do not explain the particular conditions from which he believes he suffers. In an August 2010 substantive appeal, the Veteran stated that his service treatment records "clearly have indications in the records concerning my hips. This condition has continued since getting out of the military." The Veteran did not specify any symptoms related to his claimed current bilateral hip conditions, nor did he report a current diagnosis or treatment for his claimed hip conditions. In this regard, the Board notes that the Veteran was treated for left hip pain in January 1973, thought to be tendinitis or myositis, and complained of right hip pain in May 1987. However, separation examination in September 1988 was negative for complaints, clinical findings, or diagnoses related to any hip disability. Similarly, a November 1989 VA examination failed to diagnose a hip disability. To the extent that the Veteran's statements can be construed as claiming that his current hip symptoms are attributable to the diagnosis of tendinitis or myositis noted in service, the Veteran is not competent, as a lay person, to relate any hip complaints to an actual hip disorder, as the etiology of his hip pain is a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues); c.f. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (distinguishing situations in which a layperson is competent to identify the medical condition). Given the lack of treatment records confirming that the Veteran suffers from a chronic left hip or right hip condition, the Board finds no competent or credible evidence that the Veteran currently suffers from any hip disorder. It is axiomatic that "in the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Board finds that the Veteran does not currently suffer from a chronic left hip condition or right hip condition, this alone precludes service connection. Even if the Board were to read the Veteran's statement broadly, however, and concede that he currently suffers from a right or left hip condition, service connection would still not be warranted. With respect to a direct basis, there is no evidence that the Veteran's claimed hip conditions are causally related to his active service. The record does not show that any medical professional has ever found a link between the Veteran's claimed right or left hip condition and his active service. Further, to the extent that the Veteran's statements could be read as providing such a causal link, the Board finds that he is not competent to offer such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Moreover, the Board finds that the Veteran's reports of chronic hip pain and his assertion of hip symptoms since service to lack credibility. Indeed, the Veteran's November 2009 report of chronic hip pain is belied by his own statements made during VA treatment both prior and subsequent to that report. For example, during his September 2009 initial VA primary care visit, just two months prior to reporting chronic hip pain in November 2009, the Veteran complained of knee pain and specifically denied any other complaints on review of systems. Similarly, the Veteran did not report hip pain or hip symptoms during subsequent VA treatment in February 2010 and June 2010, despite generally reporting other orthopedic complaints. Further, as previously noted, private treatment records dated prior to November 2009 show that the Veteran was active, exhibited full range of motion of the hips and, when prompted as to complaints on review of systems, did not report hip symptoms. The Board is cognizant of the Veteran's report of bilateral hip pain during a November 1989 VA examination, at which time no hip disability was found. However, the Board finds it likely that, had the Veteran been experiencing chronic hip pain or symptoms since that time, he would have sought treatment for his symptoms or, at the very least, reported symptoms in conjunction with his July 2008 annual physical, when establishing VA care in September 2009, or when prompted for complaints on review of systems. In summary, the Board finds that there is no competent or credible evidence that the Veteran currently suffers from a chronic right hip condition or a chronic left hip condition. The Board further finds that, even if the Veteran is considered to be suffering from such conditions, the competent and credible evidence does not show that they are directly related to his active service. Accordingly, the Board concludes that the criteria for service connection for a right hip condition and a left hip condition have not been met. ORDER As new and material evidence has been received, the Veteran's claim for service connection for a low back disability is reopened; to this extent only, his appeal is granted. As new and material evidence has been received, the Veteran's claim for service connection for a left shoulder disability is reopened; to this extent only, his appeal is granted. As new and material evidence has been received, the Veteran's claim for service connection for a left hip disability is reopened; to this extent only, his appeal is granted. Service connection for residuals of a neck strain is not reopened, and this aspect of the appeal is denied. Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. REMAND The Board finds that further development is warranted with regard to the Veteran's right knee increased rating claim, and his service connection claims for a low back disability and a left shoulder disability. The record reflects that the Veteran was last afforded a VA examination to evaluate his right knee disability in June 2009. Since that examination, the Veteran has reported a worsening of his right knee disability. Specifically, the Veteran reported worsening knee pain during October 2011 VA treatment and was subsequently fitted for a right knee brace in January 2012. Thereafter, VA treatment notes dated in March 2012 and April 2012 indicate that the Veteran was to undergo additional right knee surgery, but desired to hold off for the time being. During an August 2012 VA examination relating to the left knee, the Veteran also reported that his right knee had worsened and that he was now regularly wearing a brace on that knee. Given the more than three years since the Veteran's service-connected disability was last assessed for VA purposes, coupled with the Veteran's reports of a worsening condition and the use of a right knee brace, the Board finds that he should be provided with a new VA examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support a decision on appeal for an increased rating). With respect to the Veteran's low back claim, the Board observes that service treatment records, including a September 1988 separation examination, are negative for complaints or treatment related to the low back. Similarly, no lumbar spine disability was found on VA examination in November 1989, although the Veteran did complain of pain at that time. Post service treatment records show that the Veteran sought private treatment in February 2006 for low back pain, at which time, he denied previous difficulty with the low back. He was diagnosed with low back pain secondary to mild degenerative disc disease. Thereafter, VA treatment notes document periodic treatment for back pain and findings of limited bending of the lumbar spine due to pain. In March 2010, the Veteran attributed his back pain to service, and in June 2010, the Veteran complained of severe back pain since the military. Thereafter, in his August 2010 substantive appeal, the Veteran stated that his service-connected right knee disability makes his back painful. The Board must consider all possible theories of entitlement under VA laws and regulations. Given the evidence suggesting that the Veteran's back disability may be caused or aggravated by his service-connected right knee disability, the Board finds that an examination is necessary to determine whether the Veteran's low back disability is related to or aggravated by the Veteran's service-connected right knee disability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised by the claimant or by the evidence of record). Next, regarding the Veteran's left shoulder claim, the Board observes that, other than a complaint of chest pain radiating to the left shoulder in October 1983, service treatment records are negative for complaints or treatment related to the left shoulder. Furthermore, the Veteran denied painful or "trick" shoulder on separation examination in September 1988. Post service, the Veteran filed a claim for service connection for a left shoulder disability in November 1989. During a VA examination the same month, he complained of intermittent left shoulder pain. However, following clinical evaluation, the examiner determined that there was no left shoulder disability. Thereafter, a February 2003 private treatment record notes that the Veteran was treated in 1994 for tendinitis of the left shoulder, and received several injections at that time. Current VA treatment records show that, in June 2010, the Veteran complained of shoulder pain that had worsened since the military. The VA examiner noted that shoulder range of motion was limited by pain, though the examiner did not indicate which shoulder was examined. No diagnosis was offered. Given the current complaints of shoulder pain since service, coupled with the complaints of left shoulder pain on VA examination shortly after separating from service and the evidence of left shoulder tendonitis in 1994, the Board finds that the Veteran should be afforded a VA examination to address the etiology of his claimed left shoulder disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). Additionally, it appears that there may be outstanding medical records pertinent to the Veteran's claims. A March 2012 VA treatment note indicates that the Veteran underwent an MRI of the right knee. However, no report or records pertaining to that MRI have been associated with the claims file or the Veteran's virtual VA file. Additionally, as noted, private records show that the Veteran received treatment in 1994 for his left shoulder. However no records from that treatment have been associated with the claims file. Accordingly, the RO/AMC should obtain any outstanding VA treatment records and request that the Veteran complete appropriate release forms to allow VA to request treatment records from any providers who have treated the Veteran's right knee, low back, and left shoulder. Finally, the Board observes that VA treatment notes and examination reports dated between August 2011 and September 2012, which were associated electronically with the Veteran's virtual VA file, do not appear to have yet been considered by the RO. Nor has the Veteran submitted a waiver of initial RO review with respect to that additional evidence. 38 C.F.R. §§ 19.37, 20.1304 (2012). VA regulations prohibit the Board from considering additional pertinent evidence without first remanding the case to the agency of original jurisdiction for initial consideration or obtaining the Veteran's waiver. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). While the Board acknowledges that it has reviewed the VA treatment notes and found them to be relevant to the Veteran's low back and right knee claims on appeal, it has done so solely for the purpose of remanding the Veteran's claims, which is not prejudicial to the Veteran. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Accordingly, to ensure that VA has met its duty to assist and to ensure full compliance with due process requirements, the Board finds that on remand the Veteran's claims should be reviewed with consideration of all evidence received since the last RO adjudication. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete appropriate release forms to allow VA to request and associate with the file his treatment records from treatment providers who have treated his right knee, low back, and left shoulder. Corresponding records requests from private treatment providers must be made twice (unless it is determined that a second request would be futile), and all private treatment records requests must be associated with the Veteran's claims file. 2. Obtain the Veteran's VA treatment records from September 2012 to the present, as well as any records pertaining to an MRI of the right knee performed around March 2012. 3. Then, the Veteran should be scheduled for a VA orthopedic examination to determine the current severity of his service-connected right knee disability, and to determine the nature and etiology of any currently-diagnosed low back and left shoulder disabilities. The complete claims folder should be made available to the examiner prior to the examination. A notation that a complete review of the Veteran's records took place should be included in the examination report, along with an indication that the Veterans complete medical history was considered when formulating any and all opinions. The examiner is requested to conduct all relevant diagnostic testing, including repetitive range of motion testing. The examination report should also include an assessment of any right knee scars, the extent of any instability, as well as an opinion regarding the effect of his service-connected right knee disability on his employability. Any opinion expressed must be supported by a full rationale. It is also requested that, after considering the relevant evidence, including the Veteran's report of continuity of low back and left shoulder pain since service, the examiner opine whether it is at least as likely as not that the Veteran's low back disability or left shoulder disability had their onset in or are otherwise related to service. The examiner should also render an opinion as to whether it is as likely as not that any low back disability is caused or aggravated by the Veteran's currently service-connected knee disabilities. A complete rationale for any opinion expressed should be included in the examination report. 4. When the requested development has been completed, the claims should be readjudicated. If the full benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that considers all evidence received since the September 2011 supplemental statement of the case, and allowed an appropriate time for response. Thereafter, the claims should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs