Citation Nr: 21072379 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-30 765 DATE: December 3, 2021 ORDER New and material evidence having been received, the request to reopen a claim of entitlement to service connection for a chronic rotator cuff syndrome is granted. New and material evidence having been received, the request to reopen a claim of entitlement to service connection for prepatellar bursitis, right knee is granted. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic depression is dismissed. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. In an unappealed decision of December 2013, the Regional Office (RO) denied the Veteran's request to reopen his claim of entitlement to service connection for chronic rotator cuff syndrome. 2. The evidence received since the December 2013 rating decision is new and relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for chronic rotator cuff syndrome and raises a reasonable possibility of substantiating that claim. 3. In an unappealed decision of December 2013, the RO denied the Veteran's request to reopen his claim of entitlement to service connection for prepatellar bursitis of the right knee. 4. The evidence received since the December 2013 rating decision is new and relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for prepatellar bursitis of the right knee and raises a reasonable possibility of substantiating that claim. 5. At his August 2021 hearing, the Veteran stated that he wished to withdraw the issue of whether new and material has been received to reopen a claim of entitlement to service connection for chronic depression. CONCLUSIONS OF LAW 1. The December 2013 rating decision that denied reopening the claim of entitlement to service connection for chronic rotator cuff syndrome is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for chronic rotator cuff syndrome have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 3. The December 2013 rating decision that denied reopening the claim of entitlement to service connection for prepatellar bursitis of the right knee is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The criteria for reopening the claim of entitlement to service connection for prepatellar bursitis of the right knee have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 5. The criteria for withdrawal of the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic depression by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1996 to February 2000. These matters come before the Board of Veterans' Appeals (hereinafter Board) on appeal from a March 2015 rating decision, which denied the Veteran's petitions to reopen his claims of entitlement to service connection for a right shoulder disability, service connection for prepatellar bursitis of the right knee, and service connection for an acquired psychiatric disorder, including chronic depression. Subsequently, in October 2018, the RO confirmed the previous denial to reopen the claims. The Veteran perfected a timely appeal to those decisions. In August 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The record was held open for 60 days to allow the Veteran the opportunity to submit additional evidence. New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Board has considered whether 38 C.F.R. § 3.156(c) pertains to this claim. Subsection (c)(1) of the regulation demands that, "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1). Here, service personnel records were associated with the file in approximately January 2015. However, these records are not relevant to the instant claims as they do not relate to an in-service event, injury or disease. The Board also notes that copies of service medical records were submitted in May 2018 and December 2019; however, these are duplicate submissions of service medical records previously considered. As such, VA did not have to reconsider the Veteran's claim, as the official service department records had been associated with the claims file when VA first decided the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. New and material evidence having been received, the request to reopen a claim of entitlement to service connection for chronic rotator cuff syndrome is granted. The Veteran initially filed a claim of entitlement to service connection for a right shoulder disorder in March 2006. At that time, the record included the Veteran's service treatment records which noted that the Veteran was treated for complaints of right shoulder pain in October 1997; it was noted that he injured the shoulder when he was playing football and landed on his right shoulder in May 1997, at which time he was diagnosed with acromioclavicular sprain. The assessment was acromioclavicular sprain. Also considered were private treatment reports from Dr. S. which show that the Veteran received treatment for a right shoulder disorder. A February 2005 treatment note indicated that the Veteran came in to establish himself as a patient; he reported a longstanding history of right shoulder discomfort and loss of motion; this was apparently a service-related injury as he had a diagnosis of rotator cuff in service. He placed on physical therapy and returned to active duty. The diagnosis was probable old rotator cuff tear, right shoulder. The Veteran was notified of this denial in an April 2007 letter. Submitted in support of the claim was a statement from the Veteran's older brother, dated in September 2006, indicating that he recalled the Veteran calling home and being frustrated by the pain and limitations caused by the right shoulder injury he sustained while serving in the Navy. Also submitted were VA progress notes dated from January 2002 through April 2002, noting a history of right shoulder dislocation playing football. Also submitted were private treatment reports dated from February 2005 through August 2005, showing treatment for a right shoulder disorder. The Veteran's claims for rotator cuff syndrome was denied in an April 2007 rating decision as there was no medical evidence of record which established a relationship between his current right shoulder disability and service. The Veteran was notified of this decision in an April 2007 letter. There was no further communication regarding his claim of entitlement to service connection for until January 2010, when VA received his petition to reopen such claim in a statement in support of claim. Therefore, the April 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the April 2007 rating decision. In January 2010, the Veteran requested that his claim for service connection for a right shoulder disability be reopened. Submitted in support of the claim were VA progress notes dated from January 2002 through April 2002, and private treatment reports from Dr. S. dated from February 2005 through August 2005, reflecting treatment for a right shoulder disability. By a rating action in March 2010, the RO determined that new and material evidence had not been received to reopen the claim for service connection for rotator cuff syndrome. The Veteran was informed of this decision in March 2010 letter. There was no further communication regarding his claim of entitlement to service connection for until December 2012, when VA received his petition to reopen such claim in a statement in support of claim. Therefore, the March 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the March 2010 rating decision. The Veteran sought to reopen his claim of entitlement to service connection for a right shoulder disability (VA Form 21-4138) in December 2012. Submitted in support of the claim were private treatment reports from Dr. S., dated from February 2005 to January 2013, which show that the Veteran was receiving treatment for a rotator cuff syndrome of the right shoulder. By a rating action in December 2013, the RO determined that new and material evidence had been submitted to reopen the claim of entitlement to service connection for a right shoulder disorder; however, the evidence continued to show that the condition was not incurred in or aggravated by military service. The RO determined that the private treatment reports did not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claim. The Veteran did not appeal that decision within one year of the notice of the denial thereof in December 2013. There was no further communication regarding his claim of entitlement to service connection for until January 2015, when VA received his petition to reopen such claim in a statement in support of claim. Therefore, the December 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the December 2013 rating decision. In January 2015, the Veteran sought to reopen his claim of entitlement to service connection for rotator cuff syndrome (VA Form 21-526EZ). Submitted in support of the claim were VA progress notes dated from December 2012 through April 2015, which show that the Veteran received clinical evaluation and treatment for a right shoulder disorder. Among the record is the report of an X-ray study of the right shoulder, which revealed a finding of minor degenerative changes, right acromioclavicular joint. Also submitted were private treatment reports from Dr. F. M. dated from October 2014 to July 2015. During a clinical visit in July 2015, it was noted that the Veteran was being seen for evaluation of pain in the right shoulder. It was noted that the right shoulder pain was chronic in nature and was acquired while the Veteran was on active duty in the military since 1998 when he picked up a heavy box. The impression was acromioclavicular joint arthritis with impingement right shoulder. Also of record is a medical statement from Dr. J. S., dated in July 2015, indicating that the Veteran has been under his care. This physician indicated that the Veteran has a history of a chronic right shoulder disability which began when he was in military service. Of record is the report of a VA examination for evaluation of shoulder and arm conditions conducted in October 2018. The examiner reported a diagnosis of Acromioclavicular joint osteoarthritis. The examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner indicated that, during service, the condition was acute only. He noted that the Veteran was treated from right shoulder injury in 1997; however, there was no evidence of complaints, treatment or diagnosis of right shoulder injury until 2015 and that there was no evidence of chronicity of care. Also submitted was a statement in support of the claim, dated in December 2019, wherein the Veteran indicated that he sought medical treatment for his right shoulder after the inservice injury in 1997; he stated that, for the remainder of military service, he self-medicated with over-the-counter medications, alcohol and rest. He also stopped working out and refrained from using his right arm as much as possible. Following service, he continued to self-medicate but the pain because gradually worse until he went to the VA around 2004; he continued to experience pain, limited movement, weakness, muscle fatigue, cracking, popping and stiffness in his right shoulder. These painful movements make even the simplest tasks and activities more difficult to perform. In this regard, the Board notes that the pertinent evidence added to the record since the final denial in December 2013 includes VA progress notes, private treatment reports, private medical statements, VA examination report, and the Veteran's hearing testimony. The Board finds this evidence is new because it was not previously before VA decision makers. In addition, the Board finds that the above evidence suggests a possible association between the Veteran's acromioclavicular joint osteoarthritis and military service. The evidence is relevant and probative of the issue regarding the development of the right shoulder disorder and bears directly and substantially upon the facts regarding whether the Veteran's right shoulder acromioclavicular joint arthritis is related to an inservice right shoulder injury. Therefore, the Board determines that this evidence is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim for service connection for rotator cuff syndrome of the right shoulder. Accordingly, the Veteran's claim for service connection for a chronic rotator cuff syndrome is reopened. 2. New and material evidence having been received, the request to reopen a claim of entitlement to service connection for prepatellar bursitis, right knee is granted. The Veteran's claim of entitlement to service connection for a right knee prepatellar bursitis was denied by a March 2010 rating decision. At the time of the March 2010 rating decision, the record consisted of service treatment records which were negative for any complaints of or treatment for a right knee disability, including prepatellar bursitis of the right knee. The record also included VA treatment records dated from January 2002 to April 2002. Also considered were private treatment reports from Dr. S. dated from February 2005 to October 2005, which show that the Veteran received treatment for a right knee disorder. A February 2005 treatment note indicated that the Veteran came in to establish himself as a patient; he reported that he has noted a mild degree of intermittent right knee discomfort. The Veteran indicated he had several injuries to his knees from football, but no history of significant ligamentous or cartilage tears. The diagnosis was prepatellar bursitis, right knee. By a rating action in March 2010, the RO denied the claim of service connection for prepatellar bursitis of the right knee, based on a finding that the evidence failed to show that this condition occurred in, or was caused by his military service. The RO determined that there was no evidence of record which provided a link between the Veteran's right knee condition in active-duty service. The Veteran did not appeal that decision within one year of the notice of the denial thereof in March 2010. There was no further communication regarding his claim of entitlement to service connection for until December 2012, when VA received his petition to reopen such claim in a statement in support of claim. Therefore, the March 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the March 2010 rating decision. The Veteran sought to reopen his claim of entitlement to service connection for a right knee disability (VA Form 21-4138) in December 2012. Submitted in support of the claim were private treatment reports from Dr. J. S., dated from February 2005 to January 2013, which show that the Veteran was receiving treatment for right knee pain. A July 2012 clinic note reflects a diagnosis of right knee pain with dislocation of the patella. By a rating action in December 2013, the RO determined that new and material evidence had been submitted to reopen the claim of entitlement to service connection for prepatellar bursitis of the right knee; however, the evidence continued to show that the condition was not incurred in or aggravated by military service. The RO determined that the private treatment reports did not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claim. The Veteran was notified of this decision in a December 2013 letter. There was no further communication regarding his claim of entitlement to service connection for until January 2015, when VA received his petition to reopen such claim in a statement in support of claim. Therefore, the December 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the December 2013 rating decision. The Veteran's request to reopen his claim for service connection for a right knee disability (Form 21-526EZ) was received in January 2015. Submitted in support of the claim were VA progress notes dated from December 2012 through April 2015, which show that the Veteran received clinical evaluation and treatment for a right knee disorder. An October 2013 progress note reflects an assessment of joint pain in multiple sites, including right knee. A primary care note, dated in February 2015, reflects that the Veteran complained of right knee pain for many years; he reported falling off ladders onto a deck below at least twice while on board the ship in service in the late 1990s. Following examination, the Veteran was diagnosed with right knee arthralgia. An X-ray study of the right knee in March 2015 revealed loss of the medial joint space suggesting early degenerative changes involving the medial joint cartilage. Also submitted were private treatment reports from Dr. F. M. dated from October 2014 to July 2015. During a clinical visit in July 2015, it was noted that the Veteran was being seen for evaluation of multiple complaints including pain in his right knee. The impression was patellofemoral pain in the right knee. Also of record is a medical statement from Dr. J. S., dated in July 2015, indicating that the Veteran has been under his care. Dr. S. indicated that the Veteran has a history of chronic right knee pain which began when he was in military service. In this regard, the Board notes that the pertinent evidence added to the record since the final denial in December 2013 includes VA progress notes dated from December 2012 through April 2015, private treatment reports from Dr. F. M. dated from October 2014 to July 2015, showing ongoing treatment for chronic right knee pain, and a private statement from Dr. J. S. This evidence was not previously of record and is not cumulative or duplicative of evidence before the RO in December 2013. Hence, the evidence is "new" within the meaning of 38 C.F.R. § 3.156. The new evidence also includes the Veteran's testimony during the August 2021 Board hearing at which time he maintained that he sustained a right knee injury when he fell down a ladder during operations aboard ship and landed straight on his right knee. The Board finds that the above evidence suggests a possible association between the Veteran's right knee disability and military service. The evidence is relevant and probative of the issue regarding the development of the right knee injury and bears directly and substantially upon the facts regarding whether the Veteran's right knee disability is related to an in-service event. Since the credibility of the evidence is presumed in determining whether new and material evidence has been submitted, this evidence is relevant and probative of the issue of whether the Veteran's right knee disability was incurred as a result of active service. Accordingly, the Veteran's claim for service connection for a right knee prepatellar bursitis is reopened. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include chronic depression is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the Veteran personally, without the express written consent of the Veteran. 38 C.F.R. § 20.204(c). By a rating decision dated in March 2015 rating decision, the RO denied the Veteran's petition to reopen his claim of entitlement to service connection for a psychiatric disorder, including chronic depression. The Veteran perfected an appeal of the claim by filing a substantive appeal (VA Form 9) in June 2016. However, at his virtual Board hearing in August 2021, the Veteran indicated that he wished to withdraw the claim of entitlement to service connection for chronic depression. The Veteran was accompanied by his representative and the Board apprised him of the consequences of withdrawing his appeal. The Board thus concludes that his withdrawal was made with knowledge of the consequences. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the Veteran withdrew his appeal as to the issue of whether new and material evidence has been received to reopen entitlement to service connection for chronic depression, there remains no allegations of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of whether new and material evidence has been received to reopen entitlement to service connection for an acquired psychiatric disorder, including chronic depression; that issue is therefore dismissed. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to service connection for a right shoulder disorder is remanded. The Veteran maintains that he suffered an injury to his right shoulder while loading supplies during active duty; the Veteran indicated that, while attempting to push a heavy box up a ladder, it slipped and landed on his right shoulder. The Veteran indicated that he was taken to sick bay and put on light duty. He stated that he has been receiving treatment from a chiropractor ever since his discharge from service. The Board notes that post service treatment records show that the Veteran has received ongoing clinical evaluation and treatment for chronic right knee pain. In addition, in a private medical statement dated in July 2015, Dr. J. S. indicated that the Veteran has a history of chronic right shoulder disability which began when he was in military service. However, a rationale was not provided for this opinion. Moreover, following a VA examination in October 2018, a VA examiner opined that the Veteran's right shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that, during service, the condition was acute only. The examiner stated that the Veteran was treated from right shoulder injury in 1997, but there was no evidence of complaints, treatment or diagnosis of right shoulder injury until 2015. Therefore, he concluded that there was no evidence of chronicity of care. However, private treatment reports from Dr. J. S. dated from February 2005 through August 2005 show that the Veteran received treatment for a right shoulder disability. A February 2005 treatment note indicated that the Veteran came in to establish himself as a patient; he reported a longstanding history of right shoulder discomfort and loss of motion. The diagnosis was probable old rotator cuff tear, right shoulder. In light of the private treatment reports, the October 2018 opinion is based on inaccurate facts and does not address pertinent medical evidence of record. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history, even if recorded in the course of the examination. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 2. Entitlement to service connection for a right knee disorder is remanded. The Veteran maintains that he developed a right knee disorder as a result of an incident aboard ship during his period of military service. At his personal hearing in August 2021, the Veteran indicated that, during operations aboard ship, he fell down a ladder and landed straight on his right knee; he subsequently experienced constant pain shotting pain through his leg. The Board notes that post service treatment records show that the Veteran has received ongoing clinical evaluation and treatment for chronic right knee pain. A primary care note, dated in February 2015, reflects that the Veteran complained of right knee pain for many years; he reported falling off ladders onto a deck below at least twice while on board the ship in service in the late 1990s. Following examination, the Veteran was diagnosed with right knee arthralgia. Moreover, in a medical statement dated in July 2015, Dr. J. S. indicated that the Veteran has a history of chronic right knee pain which began when he was in military service. However, no rationale was provided for this opinion. In light of the foregoing, the Board finds that the evidence suggests that the Veteran's right knee disorder may be associated with his military service. As the Veteran has a currently diagnosed right knee disorder and he has provided testimony indicating that he sustained a right knee injury during operations aboard ship in service, the Veteran should be afforded a VA examination to evaluate the etiology of his right knee disorder. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, provide the Veteran with a VA examination to determine the etiology of his claimed right shoulder disorder. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiner must provide the following opinion: Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's right shoulder disorder was incurred in or caused by his active duty service, to include a shoulder injury while lifting and/or a shoulder injury from a fall? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, provide the Veteran with a VA examination to determine the etiology of his claimed right knee disorder. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiner must provide the following opinion: Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's right knee disorder was incurred in or caused by his active duty service, to include an injury from a fall from a ladder? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.