Citation Nr: 1311320 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-41 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from February 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran has claimed service connection for PTSD. Construing the claim liberally, however, the Board finds that it should be characterized as one for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim). The issue is thus restated on the title page of this decision. The Veteran appeared and testified at a Board video conference hearing before the undersigned Veterans Law Judge in January 2013. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The issues of entitlement to service connection for a right knee disorder, a left knee disorder, and a left shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record fails to demonstrate that the Veteran is diagnosed to have an acquired psychiatric disorder to include PTSD. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are set forth in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in November 2009, prior to the initial AOJ decision on his claim. Additional notice was provided to the Veteran in August and October of 2010. The Board finds that the notices provided fully comply with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran submitted information and identified evidence in connection with his claim demonstrating actual knowledge of his need to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. The Board notes that the Veteran's service treatment records, except for his entrance and exit examination reports, are not available. In August 2010, after making two requests to the National Personnel Records Center and a request to the Veteran for service treatment records and receiving negative responses, the RO issued a memorandum to the file making a formal finding of unavailability of the Veteran's service treatment records. The Veteran was notified of that finding. Nevertheless, the Veteran has testified at the January 2013 Board hearing that he did not seek psychiatric treatment while in service nor did he report his worries and anxieties dealing with his family to anyone in service. Consequently, further efforts to obtain any records would be futile. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran has not been afforded a VA examination on his claim. As discussed in further detail below, the Board finds that the available medical evidence fails to demonstrate that the Veteran has any diagnosis of an acquired psychiatric disorder based upon appropriate mental health assessment, to include PTSD, for which service connection could be granted. Furthermore, the Veteran has not presented sufficient information regarding any current psychiatric symptoms for which he is having in order that there is adequate evidence to suggest he has a current psychiatric disorder, to include PTSD. Consequently, the Board finds that the RO was not obligated to provide the Veteran with a VA examination. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Psychosis is a chronic disease enumerated in § 3.309(a). "Psychosis" is defined to include brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder not otherwise specified; schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. 38 C.F.R. § 3.384. As discussed below, the evidence fails to demonstrate that the Veteran has been diagnosed to have any psychiatric disorder much less a psychosis. Consequently, service connection based upon the presumption for chronic diseases is not for consideration. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran filed a claim for PTSD in October 2009 stating he has "serious problems that I have not received treatment for to this point. I would like to be evaluated for this problem." In December 2009, the Veteran submitted a statement in support of his claim in which he stated that his "PTSD was caused by my separation from my family, I have not received treatment for this and I am unable to fill out the form you provided. I would like to talk to a mental health specialist about this and decide if I should pursue this claim. After I have spoken to a Doctor who can perhaps help me put my distress into words, then I will make that decision." In the January 2010 rating decision, the RO denied service connection for PTSD because there was no evidence that the Veteran had been diagnosed to have PTSD related to his military service. At the time, the medical evidence of record considered was the Veteran's entrance and separation examinations and VA treatment records from January 2001 through November 2009. In addition, the Veteran's service personnel records were also of record. The Veteran filed a Notice of Disagreement with regard to the RO's denial of service connection for PTSD in October 2010 in which he states "I told you I was suffering from PTSD due to anxiety caused by my active duty and separation from home and family. Since this is not the combat induced problem I could not fill out your questionnaire. I asked due to the special circumstances to be evaluated by a VA mental health care professional, this courtecy (sic) was not granted. I have not been able financially to get the treatment I need and would like to have the VA evaluate this disability." The Veteran made the exact same statement on his VA Form 9 filed in May 2011 perfecting his appeal. At the Board hearing in January 2013, the Veteran testified that he had two children prior to entering the service and that, before going overseas, he married their mom. He further stated that after the first year he lost total contact with his family, which caused a lot of stress on him while he was overseas. He stated this "bothered me traumatically for the time I was overseas until I got out." He further testified that he had not seen his children in over 30 years and that really weighed down on him. In addition, he testified that his mom was a diabetic and had terrible veins in her legs and he took care of her. After leaving her in that situation, he worried about his dad and her and her medical conditions also. He admitted that he had a lot of worry and anxiety issues while in the service because of these things. He denied being physically or sexually assaulted in the service, or being engaged in combat or in a combat zone. Finally, he testified that he did not seek treatment nor did he talk to anyone in service about his worries and anxiety, nor did he seek help after he got out of service, stating he did not know that he could get help anywhere until he started going to VA about 12 years ago. He related that he talked to someone at the Rock Hill Veterans Clinic and he realized that the Veteran was under a certain amount of stress and prescribed him some pills for anxiety but otherwise he has received no further mental health treatment at VA. When asked if anyone at VA had ever connected his anxiety to the events that occurred in service, he responded that he tried to explain about being a young man and having a family and loving them so much but not knowing how to get his life going. He stated that he completely lost contact with them and that he felt he lost out and that it still bothers him today that he has had no contact with his kids who are 40 years old now. VA treatment records are in the claims file from March 2000 through April 2011. A March 2011 Primary Care note from the Rock Hill Community Based Outpatient Clinic (CBOC) indicates that the Veteran was a new patient. He denied any significant past medical history. He was 45 years old, a temporary laborer and had children. His complaints that day revolved around pain in the right groin area that he related to a work-related injury that occurred when he was lifting 30 pound plastic tubing for 8 hour shifts for 3 weeks. The impression was right inguinal hernia. The Board notes that a depression screen at that time was negative. In fact, the first indication in these VA treatment records of any possible psychiatric disorder is not seen until May 2006 at which time screens for depression and PTSD taken prior to a Primary Care visit were positive. His primary care physician assessed him to have depression and PTSD. Although the Veteran declined referral to Mental Health, it appears that a referral was automatically generated due to the positive PTSD screen. In June 2006, the Veteran was seen for a Mental Health Initial Evaluation consultation. At that time, he denied depression and stated that he did not understand why he was there. He said he had seen his primary care physician the day after his 17 year old nephew died from cancer, and she set this appointment up. He reported that he felt he was coping adequately with this death even though he had lost four close family members in the last six years. The Veteran also reported that he served in the Army overseas for two years and in the Reserves for six years. He further reported that, in 1974, he served in Vietnam and was not in combat but was on call. He reported feeling that he has coped well with the Vietnam experience, although watching the news about Iraq triggers memories of Vietnam. He reported he had worked and raised a family and currently volunteered to train amateur fighters. He stated his spiritual strength helps him through difficult times and he also has church and family support. He was reluctant to complete the evaluation and requested no further appointments. The provisional diagnosis was bereavement. He was noted to be psychiatrically stable and was referred back to his PCC provider. There are no further mental health treatment records. Furthermore, the available records fail to demonstrate the Veteran was ever prescribed any medications for mental health issues including any anti-anxiety medication as he testified. The Board notes that the Veteran's computerized problems list included a diagnosis of PTSD thereafter despite there being no confirmed diagnosis after appropriate evaluation. In addition, although a July 2009 Primary Care note shows the Veteran reported that he lost his daughter a year before and had stress due to financial issues, there is no assessment of any mental illness nor was the Veteran prescribed any psychiatric medications. Finally, the Board notes that the Veteran had a positive depression screen in April 2011; however, he reported that he had just lost his brother and was trying to handle that. No report of any psychiatric symptoms was made to his primary care physician at that time and no assessment of a mental illness was made or medication prescribed. Based upon the foregoing evidence, the Board finds that it fails to demonstrate that the Veteran has a current acquired psychiatric disorder, to include PTSD, for which service connection may be granted. Despite the Veteran's multiple requests that VA provide him with a mental health evaluation in relation to his claim for PTSD, the Board notes that the VA treatment records clearly demonstrate that he has already undergone a mental health consultation in 2006 and that he failed to report any mental health issues at that time or at any time before. In fact, he had initially refused referral to mental health, denied having any mental health issues, and refused additional mental health treatment. Furthermore, despite receiving treatment at VA on a regular basis for his general health problems, the VA treatment records demonstrate that he has never made any complaints of psychiatric symptoms and has never been treated with medications despite his testimony at the hearing that he was given medication for anxiety. If he really wanted to speak with a mental health provider, he clearly could have done so by simply reporting his need to do so to his primary care physician. Furthermore, the record shows that he has had multiple deaths in his close family over the last decade; however, as indicated in the records, he has been able to cope with these losses without any evidence of him having a mental health illness. Significantly he denied at the 2006 mental health initial consultation that he had any mental health issues. Consequently, the Board finds that the overwhelming medical evidence shows that the Veteran does not have a psychiatric disorder for which service connection may be warranted. Moreover, the Board finds that the Veteran has not provided sufficient statements as to current symptoms upon which the Board could even imply that he has a current psychiatric disorder. Except at the Board hearing, the Veteran has merely asserted that he has PTSD. In fact, given his statements that he wanted VA to provide him with the opportunity to see a doctor to see if he should pursue this claim, the Board finds that the Veteran himself was not completely sure he had a psychiatric disorder for which he could be service-connected. The Veteran's testimony at the hearing shows he had a lot of worries and anxiety during service because of various family issues; however, his testimony as to what his current symptoms are was vague. It appears that he merely has regret over the loss of contact with his children, which is understandable but that alone is not sufficient to demonstrate he has a current psychiatric disorder. Although the Veteran alleges he has PTSD, he has failed to state he has any symptoms of PTSD. Likewise, although he testified that he had anxiety in service, the Veteran failed to report any symptoms of anxiety at the hearing. Finally, the Board must note that, at the June 2006 mental health initial evaluation consultation, the Veteran reported that he was in Vietnam in 1974; however, according to his service personnel records the Veteran never served in Vietnam. Instead, he was stationed in Germany from August 1974 until his discharge in February 1976. Such a misrepresentation of his service to the treating physician providing the mental health evaluation makes it difficult to find that the Veteran has the capacity to provide an accurate history in relation to his claim for service connection. Based on the foregoing, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current acquired psychiatric disorder, to include PTSD, for which service connection may be warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for an acquired psychiatric disorder, to include PTSD, is denied because the evidence fails to establish that the Veteran has a current disability for which service connection may be granted. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. REMAND The Board finds that the Veteran's claims for service connection for a right knee disorder, a left knee disorder, and a left shoulder disorder should be remanded for additional development. As for the Veteran's right and left knee disorders, at his Board hearing, the Veteran related his current bilateral knee degenerative joint disease to being in the Infantry and carrying gear on his back during field maneuvers and marches. He claims that this was very stressful on his back, shoulders and knees and played a tremendous toll on his current condition. He also related an incident in which his slipped and fell on his left knee hurting it. He was sent to sick call and was placed on crutches for a week. He stated that afterward it became a "trick knee" and "just slipped out and slipped out, slipped out, until it just constantly started swelling up to every day." The Veteran also testified that, although he did not seek medical care for his knee until 10 to 12 years ago, that this has bothered him since service. The Board also notes that, in multiple written statements, the Veteran acknowledged that he did not have degenerative joint disease while in service but alleged his current problems were because of the injury in service. (See the January 2010 Notice of Disagreement and the October 2010 VA Form 9.) The Board notes that the Veteran's service treatment records are essentially missing. The only available records are the reports of his entrance and separation examinations, which fail to demonstrate any lower extremity abnormalities. As for post-service medical evidence, the Board notes that, although the Veteran began treatment at VA in March 2000, the first treatment for complaints of left knee pain was not until November 2003. A November 4, 2003 Emergency Department note indicates the Veteran was seen with complaints of having left knee swelling and pain with going up and down stairs. No assessment was made at this time. However, on November 26, 2003, the Veteran was seen in Primary Care and again complained of left knee pain. He denied any specific injury but reported that his knee began hurting after going up and down a ladder at a previous job as a painter. Physical examination of the left knee was positive for crepitus and mild swelling. In April 2004, the Veteran was seen again in the Emergency Department with complaints of left knee pain for four months. He denied trauma but reported he does climbing, kneeling and squatting. He reported that the knee swells and NSAIDS did not provide relief. Symptom directed assessment was degenerative joint disease changes with increased heat, stable, full range of motion. In May 2004, he was seen for an Orthopedic consultation where he reported a gradual increase in pain, swelling and catching type (though no true locking) episodes. It was noted he was employed doing construction work and also taught boxing as a hobby. On physical examination, his gait was normal and he was able to stand on heels and toes with no difficulty. He complained of pain in both knees, more severe on the left, with deep knee bending. He was able to extend the knee completely. Flexion of the knee was complete but associated with increasing pain. There was no swelling or effusion. Marked painful subpatellar crepitation was noted on the left, mild on the right. The left knee was stable. There was some medial joint line tenderness as well as pain in this area with McMurray's maneuver. X-rays of the left knee were noted to show some narrowing of the joint space without evidence of bone or joint injury. The impression was that this was most likely chondromalacia patella. Since he did have some findings suspect for a torn medial meniscus, a magnetic resonance imaging (MRI) study was ordered; however, there is no record that this study was ever conducted. Although there were some mild findings related to the right knee on physical examination in November 2003, the treatment records do not show complaints of right knee pain until July 2009. At that time, the Veteran reported to his primary care physician that he had pain in both knees keeping him up at night. Physical examination was positive for bilateral crepitus and pain on range of motion. The assessment was osteoarthritis, which was confirmed by X-rays taken in August 2009 which were noted in an addendum note to show mild degenerative joint disease bilaterally. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third part could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, based upon this evidence of record, the Board finds that a VA examination is required to obtain a current diagnosis and a medical nexus opinion as to whether any current disorders involving the Veteran's knees are related to his military service, especially whether the left knee disorder is related to the reported in-service injury. With regard to the left shoulder, the Board notes that the Veteran testified at the hearing in January 2013 that, during the winter of 1975 (sometime between October and February), they were playing war games and camping out in the field when a storm came up. He related he got trapped in his sleeping bag and when he stood up, he fell off into a pile of spikes and spiked his left hand. Because of this, he jarred his shoulder. He related that he was treated at a hospital for the injury to his hand but he was unable to say specifically which hospital he was treated at (although he did indicate that this treatment was not inpatient but was in the emergency room and then he was sent back to the field). He stated that, since he has been out of the service, he has not been able to straighten this arm out and he has pain there (presumably meaning in his left shoulder). However, he testified that he did not seek treatment until he came to VA about 10 to 12 years ago. Although the Veteran began treatment with VA in March 2000, the Board notes that complaints of left shoulder pain are not actually seen until November 2009 (although treatment for a right shoulder injury is seen in 2004). During a Primary Care visit, the Veteran complained of left shoulder pain (along with bilateral knee pain) being most bothersome at that time. Physical examination of the left shoulder/arm showed a slight tenderness at the acromioclavicular joint and some contracture at the left elbow with tendonitis; however, no assessment was provided. Subsequent treatment records through April 2011 do not demonstrate any additional complaints of or treatment for the left shoulder although a February 2011 note indicates the computerized problem list includes "bursitis (shoulder)" as a current problem. Consequently, based upon this evidence of record, the Board finds that a VA examination is required to obtain a current diagnosis and a medical nexus opinion as to whether any current disorder involving the Veteran's left shoulder is related to his military service, especially whether the left shoulder disorder is related to the reported in-service injury. Finally, the Board notes that the last VA treatment record available is from April 2011, almost two years ago. In addition, there are missing radiographic records, especially the report of the August 2009 X-ray of the knees. On remand, all radiographic reports relating to the Veteran's knees and left shoulder, as well as treatment records since May 2011, should be associated with the Veteran's claims file. The Board finds that, with regard to the Veteran's report of treatment at a hospital in Germany for the injury to his left hand in the winter of 1975, that no additional efforts need be undertaken to seek any records as the Veteran testified at the Board hearing in January 2013 that he was not treated as an inpatient but was seen in the emergency room and then returned to his unit. Such records, therefore, would be with the Veteran's service treatment records if they were available. They would not be with the hospital records as those only contain inpatient clinical records. Since the RO has already issued a memorandum finding that service treatment records are unavailable, no further action need be taken at this time. If these records are recovered in the future, then the Veteran's claims will be revisited at that time. Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file his medical records from the VA Medical Center in Columbia, South Carolina, for treatment related to his knees and left shoulder from May 2011 to the present, to include all imaging studies not previously of record such as the August 2009 X-ray of the knees. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. After all additional available evidence has been obtained, schedule the Veteran for a VA joints examination to determine the nature and etiology of his claimed bilateral knee and left shoulder disorders. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. All necessary diagnostic tests and/or studies should be accomplished to determine the nature of all current disorders involving the Veteran's bilateral knees and left shoulder. Then, after reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current disorder identified involving the Veteran's bilateral knees and left shoulder is related to any disease or injury incurred during service. The examiner should specifically address the Veteran's statements as to in-service injuries including: (1) the wear and tear on his joints from being in the infantry and having to wear full gear during field maneuvers and marches; (2) with regard to any identified left knee disorder, an injury incurred in service when the Veteran slipped and fell hurting this knee, and he was placed on crutches for a week; and (3) with regard to the left shoulder, an injury incurred during the winter of 1975 when the Veteran fell and spiked his left hand reportedly jarring his left shoulder. In rendering each opinion, the examiner must consider the Veteran's statements as to an onset in service and having continuous symptoms since service. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. The examiner is advised that the absence of evidence of treatment in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After ensuring that all necessary assistance has been provided the Veteran (including ensuring the adequacy of the VA examination report), the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs