Citation Nr: 1316461 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-06 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to an initial evaluation in excess of 30 percent for degenerative osteoarthritis of the right shoulder (hereinafter right shoulder disability) for the period from March 29, 2005 to September 25, 2006. 3. Entitlement to an initial evaluation in excess of 60 percent for right shoulder disability, beginning November 1, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1990 to June 1991, and from December 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and February 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for a right shoulder disability-initially rated as 20 percent disabling-and denied service connection for a left knee disorder, respectively. The Veteran has timely appealed the above issues. The Veteran testified at a Board hearing before the undersigned in August 2010; a transcript of that hearing is associated with the claims file. This claim was previously remanded by the Board in January 2011 for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time. During the pendency of the appeal, the Veteran had right shoulder surgery on September 26, 2006 and filed for a temporary total evaluation for his right shoulder based on the need for convalescence. The Veteran's right shoulder disability was temporarily evaluated as 100 percent disabling, beginning September 26, 2006, and reduced to 30 percent disabling, effective November 1, 2007, in a March 2007 rating decision. In a July 2009 supplemental statement of the case, the Veteran's right shoulder disability was assigned a 30 percent disability evaluation, effective March 29, 2005-the date following his discharge from service. Finally, the Veteran's right shoulder evaluation for the post-surgical convalescence period, beginning November 1, 2007, was increased to a 60 percent disabling in a May 2012 rating decision. The Board has recharacterized the right shoulder issue into two separate issues, as noted above, in order to comport with these awards of benefits. The Board finds that the period prior to the Veteran's right shoulder surgery has ripened at this time such that adjudication of that period is proper; the Board will evaluate the Veteran's right shoulder disability for the period of March 29, 2005 to September 25, 2006, as discussed below. The issues of service connection for left knee disorder and increased evaluation of the right shoulder disability for the period beginning November 1, 2007 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. FINDINGS OF FACT 1. The Veteran is right-handed. 2. For the period prior to September 26, 2006, the Veteran's right shoulder more closely approximates limited motion of midway between his side and shoulder level rather than to 25 degrees or less from his side; the Veteran's right shoulder also does not demonstrate any ankylosis or his scapula and humerus moving together, loss of head of or flail shoulder, nonunion of or false flail shoulder, or fibrous union of his humerus or humeral head throughout that period of time. CONCLUSION OF LAW For the period prior to September 26, 2006, the criteria establishing an initial evaluation in excess of 30 percent evaluation for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200-03 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for his right shoulder disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an August 2010 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board acknowledges that the Veteran's claim herein decided was previously remanded in a January 2011 remand. That remand noted that VA should obtain the Veteran's Social Security Administration (SSA) records; such have been obtained and associated with the claims file. Therefore, the Board finds that its remand order has been substantially complied with in regards to the portion of the Veteran's right shoulder claim decided herein, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2012). Under Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (emphasis added). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion (emphasis added). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. The 10 and 20 percent evaluations based on X-ray evidence may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the evidence of record demonstrates that the Veteran is right-handed. Therefore, the Board finds that the Veteran's service-connected right shoulder is the dominant (major) extremity for rating purposes. The Veteran has been assigned a 30 percent disability evaluation for his right shoulder disability from March 29, 2005-the date after he was discharged from service-through September 25, 2006-the date prior to his right shoulder surgery. That 30 percent evaluation has been assigned under Diagnostic Code 5010-5201. Under Diagnostic Code 5201, limitation of motion of the major arm at the shoulder is rated at 30 percent if motion is limited midway between the side and shoulder level, and 40 percent if motion is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Other potentially applicable Diagnostic Codes include 5200 and 5202. Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) of the major upper extremity is rated 30 percent when it is favorable, with abduction to 60 degrees and able to reach mouth and head. A 40 percent is assigned with intermediate ankylosis (between favorable and unfavorable); and it is rated 50 percent when unfavorable (abduction limited to 25 degrees from side). See 38 C.F.R. § 4.71a, Diagnostic Code 5200 and Note (2012). Diagnostic Code 5202 provides a 30 percent rating recurrent dislocation of the major humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Similarly, malunion of the major humerus warrants a 30 percent rating with a marked deformity. Impairment of the major humerus is rated at 50 percent if there is a fibrous union, 60 percent if there is nonunion or false flail joint, and 80 percent if there is loss the head of humerus, with flail shoulder. See 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). Finally, Diagnostic Code 5203 does not provide for a rating in excess of 20 percent and therefore is not applicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2012). Turning to the evidence of record, the Board notes that in February 2005, while still in service, the Veteran was treated for his right shoulder, which was noted as having pain for 11 months during his deployment to Iraq. He reported shoulder pain when sleeping on it at night, lifting more than 20 pounds of weight, or with any type of overhead work. The Veteran did not get relief from medication, rest or physical therapy. On examination, the Veteran had forward flexion to 160 degrees and abduction to 160 degrees, external rotation to C-7 and internal rotation to L5. There was no evidence of scapular winging, sulcus, apprehension, or subscapular weakness. X-rays demonstrated marked degenerative changes with a type I acrominion with post surgical resection of the distal clavical. The Veteran was put on a P2 profile until he was discharged from service. Following discharge from service, the Veteran's VA treatment records from August 2005 through September 2006 demonstrate continued treatment for right shoulder pain. In September and October 2005, he was seen for right shoulder pain. In September 2005 he reported that repetitive motion with his right shoulder was aggravating; he demonstrated some anterior tenderness to palpation, limited abduction and full adduction. Likewise, in October 2005, the Veteran was shown to have limited range of motion of his right shoulder with x-rays revealing degenerative joint disease. The Veteran underwent a VA examination of his right shoulder in November 2005. At that time the Veteran reported having an initial right shoulder surgery in 1999, following an accident loading a UPS truck. He recovered fully and then was re-injured while in Iraq. He reported having sharp, aching, level 7 out of 10 pain in his right shoulder, which was constant with accompanying stiffness. There was no swelling, redness, heat, locking sensations, or giving-way sensations reported at that time. The Veteran's right shoulder pain flared to 10 out of 10 when he turned, raised or lied on his right shoulder. He reported recently quitting his job as an assembler due to his right shoulder condition, which required pulling and lifting weights of 60 pounds. The Veteran noted that he left that job several times to go to the emergency room for treatment for right shoulder pain. There was no noted pin or screw in the right shoulder, nor was there prosthesis at that time; he did not report any episodes of dislocation. The Veteran was right-hand dominant, using it to eat, and write. On examination, the Veteran's right shoulder had flexion to 90 degrees with pain, and to 80 degrees without pain; abduction to 30 degrees with pain and to 0 degrees without pain; internal rotation to 30 degrees without pain; and, external rotation to 30 degrees with pain. There was no tenderness on palpation, erythema, or effusion. The Veteran did not have pain during motion, though pain was a limiting factor as noted above. There was no weakness, fatigue or additional functional loss on repetitive motion. X-rays at that time demonstrated right shoulder degenerative osteoarthritis with a surgical amputation of the distal clavicle tip. Approximately two weeks later, the Veteran also had an orthopedic surgery consultation with VA in November 2005. The Veteran reported having right shoulder pain for over a year and also reported a history of a torn rotator cuff with mini-repair in 1999. He stated that he was doing well after the 1999 procedure, but that he re-injured his right shoulder while in Iraq. He reported that his right pain was constant and worse with overhead motion. He denied any sudden pain, popping sensation, or weakness in the shoulder. He reported quitting his manufacturing job due to his right shoulder pain. On examination, the Veteran had flexion to 180 degrees with pain and abduction to 90 degrees with pain but can carry on to 120 degrees of motion; the VA doctor could passively abduct the Veteran fully. He had external rotation to 15 degrees and internal rotation of the buttock. There was no tenderness over the bicep tendon. There was no tenderness over the AC joint and he had a negative cross-arm adduction test. He had strength of 5 out of 5 with a negative drop-arm test. A private MRI the Veteran brought in with him revealed an intact supraspinatus tendon with tendinosis, but no tearing. The Veteran was diagnosed with right should rotator cuff tendinitis/bursitis at that time. The Veteran received an injection of Lidocaine, Marcaine and Kenalog at that time. In January 2006, the Veteran was shown to have severe right shoulder degenerative joint disease, and that rotator cuff tests were intact clinically. The Veteran has external rotation to 80 degrees, internal rotation to 60 degrees, flexion to 150 degrees and abduction to 140 degrees at that time; no gross instability of the shoulder was shown. There was grinding noted in the glenohumeral joint with motion; he had negative Speed's testing. The Veteran was noted as having a total shoulder joint replacement surgery soon, and was noted as being restricted to sedentary duty in employment on a permanent basis due to his right shoulder disability. In March 2006, the Veteran was again treated for right shoulder pain; he reported taking medications at that time but that they were ineffective. He also reported some paresthesias in the right upper extremity, but denied any weakness. The Veteran reported avoiding lifting anything with his right arm. He was noted as having a right shoulder without any obvious deformity, without fasciculations and with limited adduction. In June 2006, the Veteran was shown to have the same measurements as noted in the January 2006 treatment note. He was diagnosed with right shoulder osteoarthritis at that time. In July 2006, the Veteran reported having severe right shoulder pain. He had flexion to 130 degrees and external rotation to 20 degrees at that time with strength 5 out of 5. In September 2006, approximately 4 days prior to his right shoulder surgery, the Veteran continued to report right shoulder pain. On examination, he had flexion to 120 degrees, abduction to 90 degrees, and external rotation to 20 degrees, with strength of 5 out of 5. X-rays from June 2006 were noted as having findings most compatible with post-traumatic changes involving the right shoulder with moderate to severe right glenohumeral osteoarthritis and post-surgical changes of the distal right clavicular resection and probable acromioplasty. Based on the foregoing, the Board notes that the evidence does not support a finding of loss of head of or a flail shoulder, nonunion of or a false flail joint, or fibrous union of the humerus or humeral head. Accordingly, the Board finds that higher evaluations under Diagnostic Code 5202 are not applicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. Likewise, there is no evidence that the Veteran's right shoulder is ankylosed or that his scapula and humerus move together. Thus, Diagnostic Code 5200 is equally as inapplicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5200. The Board therefore turns to Diagnostic Code 5201, which requires that his right arm be limited to 25 degrees to the side or less in order for a higher evaluation. The Board notes that the Veteran's arm is shown throughout the appeal period to have motion to approximately his shoulder level with severe pain; the evidence demonstrates that the Veteran's shoulder is consistently able to exceed 25 degrees from his side throughout the appeal period. Accordingly, the Board finds that a higher evaluation that already assigned under Diagnostic Code 5201 is not for application in this case. 38 C.F.R. § 4.7a, Diagnostic Code 5201. In sum, the Veteran's right shoulder has limited motion, but such limited motion is not to 25 degrees from his side or less throughout the appeal period. Moreover, the Veteran's right shoulder does not demonstrate that his humerus and scapula move together or that he has ankylosis of the right shoulder, not is there any evidence throughout the appeal period of loss of head of or flail shoulder, nonunion of or false flail shoulder, or fibrous union of his humerus or humeral head. Accordingly, the Board must deny the Veteran's claim for increased evaluation from March 29, 2005 to September 25, 2006 on the basis of the evidence of record. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5200-03. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected right shoulder disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this case, the evidence of record does demonstrate that the Veteran was unemployed during the period of from March 2005 to September 2006, after he quit his manufacturing job due to his right shoulder pain. The evidence further demonstrates that the Veteran was no longer able to lift and pull in that occupation as a result of his right shoulder disability. However, the evidence of record also demonstrates that the Veteran was still able to participate in sedentary work, as noted in the January and June 2006 treatment records. In light of the Veteran's ability to still participate in sedentary employment, the Board finds that the evidence of record-and the Veteran has not alleged throughout the appeal period that-does not demonstrate that he was unable to secure and follow substantially gainful employment. Accordingly, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial evaluation in excess of 30 percent for the Veteran's right shoulder disability, for the period of March 29, 2005 to September 25, 2006, is denied. REMAND Initially, with respect to the Veteran's right shoulder disability, the Veteran had surgery for implantation of right shoulder prosthesis on September 26, 2006; currently the Veteran has been assigned a 100 percent evaluation for his right shoulder disability under Diagnostic Code 5051, which assigns that evaluation for a year before rating the residuals of that surgery. The Veteran's one year period under Diagnostic Code 5051 and evaluation on the residuals began on November 1, 2007, at which time the RO has assigned a 60 percent evaluation. The Veteran last underwent a VA general medical examination, which included his right shoulder, in July 2008. The Board notes that such examination was not specifically for his right shoulder and is now almost 5 years old. The Board therefore finds that a remand is necessary at this time in order to afford the Veteran a new VA examination for his right shoulder disability to determine the current nature and severity of that disability. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). With regards to the left knee, the Board asked that the VA examiner address all active duty for training (ACDUTRA) injuries. After review of the claims file, it appears that the Veteran injured his left knee playing basketball in 1994 and was seen for various other pain and symptomatology in 1995, associated with running and doing physical training. The Board is unable to determine on the basis of the record as to whether the Veteran's noted sick call slips for left knee injuries in 1994 and 1995 occurred on ACDUTRA or inactive duty for training (INACDUTRA). The Veteran also testified at his August 2010 hearing that his symptoms began in 1999, before noting that he had previously injured his left knee playing basketball in 1995. In the March 2011 examination, the VA examiner noted that the Veteran's current left knee osteoarthritis was the result of aging and not his active duty service. While the Board acknowledges that the examiner noted the 1994 basketball injury, she did not address that in her rationale. The Board also observes that it is entirely possible that the presumption of soundness also applies in this case, as it appears that the Veteran may have been accepted into service in December 2003 and not had any noted left knee problems. In light of the above noted complexities of this case, and the quite scant discussion by the March 2011 VA examiner in her examination report, the Board finds that opinion to be entirely inadequate. Accordingly, the Board finds that a remand is necessary in order to afford the Veteran a new VA examination and to obtain a more accurate medical opinion in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Also on remand, the Board finds that it is vitally necessary for the RO/AMC to obtain any service personnel records which are outstanding, particularly those types of records which would document when the Veteran was on ACDUTRA and INACDTURA in between his two periods of active duty service. Such a distinction may potentially have an impact on the types of injuries that are potentially service-connected in this case. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain any relevant VA treatment records from the Montgomery VA Medical Center, or any other VA medical facility that may have treated the Veteran, since May 2012 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his left knee or right shoulder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Attempt to obtain through official sources any of the Veteran's service treatment and personnel records that are not currently associated with the claims file, including for any periods of ACDUTRA or INACDUTRA. Verify any periods of ACDUTRA and INACDUTRA that the Veteran has performed since discharge from the United States Army in June 1991 but prior to his December 2003 period of active service, including the periods in 1994 and 1995. 4. Schedule the Veteran for a VA examination in order to determine the nature and etiology of his left knee disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted. After review of the claims file and examination of the Veteran, the examiner should identify all left knee disorders found, including any arthritic conditions thereof. The examiner should then discuss the following: (a) The examiner should opine whether the Veteran's left knee disorder is more likely, less likely, or at least as likely as not (50 percent or greater probability) due to or related to his November 1990 to June 1991 period of active service. (b) The examiner should then opine whether the Veteran's left knee disorder is more likely, less likely, or at least as likely as not due to or related to any injury sustained while on ACDUTRA or INACDUTRA between June 1991 and December 2003, to include the noted 1994 basketball injury and the 1995 treatment for re-injury. The examiner must discuss whether those two noted injuries resulted in a chronic disability which is currently manifested by the Veteran's current left knee disorder, or whether such were acute and transitory injuries which resolved prior to December 2003. (c) If the examiner does not find that the Veteran's knee disorder stems from any ACDUTRA or INACDUTRA injury, or that any injury thereon did not result in a chronic disability but rather had resolved by December 2003, the examiner must take as conclusive fact that the Veteran was sound on entrance into service in December 2003 with respect to his left knee. The examiner should then opine whether the Veteran's left knee disorder is more likely, less likely or at least as likely as not caused by or related to the Veteran's period of active service from December 2003 to March 2005. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA orthopedic examination in order to determine the current nature and severity of the Veteran's right shoulder disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. The examiner should conduct range of motion testing and provide an opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such additional functional limitation should be reported in terms of the degrees of additional limitation of motion. The examiner should also specifically comment on whether the Veteran has a flail shoulder (loss of head of the humerus). If the examiner opines that any of the above questions cannot be resolved without resort to speculation, then reasons why this is so must be provided. The examiner should also report whether there is additional evidence that would permit the necessary opinion to be provided. 6. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for a left knee disorder and increased evaluation for the right shoulder beginning November 1, 2007. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs