Citation Nr: 1302897 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-31 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh. 2. Entitlement to service connection for a right knee disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 3. Entitlement to service connection for a left knee disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 4. Entitlement to service connection for a right foot disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 5. Entitlement to service connection for a left foot disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 6. Entitlement to service connection for a right hip disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 7. Entitlement to service connection for a low back disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. 8. Entitlement to service connection for a cervical spine disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1966. This matter comes to the Board of Veterans Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously before the Board in January 2012 at which time the case was remanded for additional development. With the exception of the issue of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh which is discussed in the remand below, there has been substantial compliance with the Board's January 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh and for service connection for a right hip disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, are being remanded and are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a right knee disability, diagnosed as osteoarthritis, attributable to service or service connected disability. 2. The Veteran does not have a left knee disability, diagnosed as osteoarthritis, attributable to service or service connected disability. 3. The Veteran has not been shown to have a right foot disability during the pendency of this appeal. 4. The Veteran has not been shown to have a left foot disability during the pendency of this appeal. 5. The Veteran does not have a cervical spine disability, diagnosed as degenerative disc disease and spondylosis, attributable to service or service connected disability. Degenerative joint disease was first shown years post service and is unrelated to service connected disability. 6. The Veteran does not have a lumbar spine disability, diagnosed as degenerative disc disease and spondylosis, attributable to service or service connected disability. Degenerative joint disease was first shown years post service and is unrelated to service connected disability. CONCLUSIONS OF LAW 1. A right knee disability, diagnosed as osteoarthritis, was not incurred in or aggravated by service, may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A left knee disability, diagnosed as osteoarthritis, was not incurred in or aggravated by service, may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. A right foot disability was not incurred in or aggravated by service nor is such a disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. A left foot disability was not incurred in or aggravated by service nor is such a disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 5. A cervical spine disability, diagnosed as degenerative disc disease and spondylosis, was not incurred in or aggravated by service, arthritis may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 6. A lumbar spine disability, diagnosed as degenerative disc disease and spondylosis, was not incurred in or aggravated by service, arthritis may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2012)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, the appellant was provided with initial notice of the VCAA in May 2008, which was prior to the January 2009 decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied. VA has fulfilled its duty to notify the appellant in this case. In the May 2008 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims being decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159; See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F. 3d 1483, 1485 (Fed. Cir. 1997). Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 471 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claims being decided herein, the Board finds that the appellant is not prejudiced by a decision as the Veteran was provided with notice of the disability rating and effective date elements in the May 2008 letter. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including requesting information from the appellant regarding pertinent medical treatment he may have received and obtaining such records, and affording him a VA examination during the appeal period. In regard to VA examinations, the Veteran was afforded a pertinent VA examination in August 2008, with an addendum VA opinion in February 2012. The examiner provided sufficient detail for the Board to make a decision in this appeal and his reports are deemed adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The appellant was also provided with the opportunity to attend a Board Hearing which he declined. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in his claims being decided herein and that adjudication of these claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records show that he sustained a gunshot wound of the right thigh in the Dominican Republic in 1965. X-rays revealed a metallic slug at the level of the femur in the coronal plane about 6 centimeters below skin surface in the medial aspect of the thigh. The slug was lying about 16 centimeters below the level of the greater trochanter. The Veteran was hospitalized and treated by secondary closure. He was discharged from the hospital in May 1965. He was subsequently hospitalized in June 1965 with complaints of pain and limitation of motion to his right leg. Findings were negative except for the right thigh where a healed gunshot wound was noted with moderate atrophy of the quadriceps and hamstrings. There was full range of motion in the extremity. The Veteran began physical therapy and was noted to have a rapid return of function to the right leg. He was diagnosed as having atrophy to quadriceps and hamstring muscles, right thigh. In December 1965, the Veteran reported hurting his back the day before picking up a foot locker. Findings revealed moderate bilateral paravertebral muscle spasm and no neurological deficit. The Veteran was given an impression of mild lumbosacral strain and was advised to apply heat and wintergreen with no heavy lifting for one week. He was seen again in December 1965 with the same back complaints. Spasm was found and the Veteran was referred to physical therapy. X-rays were taken of the Veteran's low back in January 1966 due to complaints of chronic low back pain. Findings revealed no bone or joint abnormalities. A subsequent treatment record in January 1966 shows that the Veteran continued to have node pain and was unable to do his exercises. He was referred to an orthopedist. An April 1966 release from active duty (RAD) examination report shows that the Veteran had a normal clinical evaluation of his spine and lower extremities. He was noted to have a four inch scar due to a gunshot wound to his right thigh. Postservice VA examination findings in October 1966 show that the Veteran had a well healed, nontender, non adherent scar in the anterolateral aspect, middle third of the right thigh measuring 3 1/2" x 3/8". There were no other findings. The Veteran was diagnosed as having residuals of gunshot wound right thigh, as described and on x-ray report. In November 1966, the RO granted service connection for gunshot wound, right thigh, with residuals and assigned a 20 percent rating, effective in July 1966. In April 2008, the Veteran filed a claim for a higher rating for his service-connected gunshot wound, right thigh, with residuals, and for service connection for a back disability, bilateral knees, bilateral feet, chronic arthritis and a cervical disability, all claimed as secondary to his service-connected gunshot wound, right thigh, with residuals. At a VA examination in August 2008, the Veteran complained of constant right thigh numbness sensation. He denied any other major complaints. He also reported knee pain which he described as stabbing-like pain sensation which was worse on rainy and cold days. He reported bilateral knee crepitus sensation and denied a giving way or locking sensation. He said his condition had progressively worsened and he was currently taking Naproxen, 550 milligrams, as needed with good results. The examiner reported that there were no constitutional or incapacitating episodes of arthritis. He noted that the Veteran was functionally limited to standing for 15-30 minutes and walking for more than 1/4 of a mile, but less than 1 mile. Joint symptoms were negative for deformity, giving way, instability, stiffness, weakness, epodes of dislocation or subluxation, locking episodes, and effusion. There was knee pain. The condition did not affect motion of one or more joints, but there was flareup of joint disease. The Veteran had a normal gait, but weight bearing was affected. Range of motion of the right and left knees was from 0 to 140 degrees with no additional loss of motion due to pain or on repetitive use. Additional right and left knee findings revealed no medial, lateral, anteral, or posterior cruciate ligament laxity. The Veteran was found to have mild degenerative changes of the knees by x-ray. X-rays of the left femur revealed a metallic bullet within the soft tissue in the midportion of the right thigh. There were no acute bony or soft tissue abnormalities identified. In summary, the examiner reported that the Veteran had a metallic bullet in his right thigh secondary to gunshot injury in service. He reported that the disability varied between no effects, mild effects and moderate effects on activities of daily living. The examiner also reported that the Veteran had bilateral knee pain due to bilateral knee degenerative joint disease that was mild. He reported that this disability had no effects to mild effects on activities of daily living. In terms of the Veteran's claimed cervical disability, the examiner diagnosed the Veteran as having myositis, cervical degenerative disc disease and cervical spondylosis. This disability was found to vary between no effects, mild effects and moderate effects on activities of daily living. Regarding his claimed bilateral foot disability, x-rays revealed no acute soft tissue or bony abnormalities. The Veteran was not given a foot diagnosis as no pathology was identified. Lastly, the Veteran was diagnosed as having lumbar muscle spasm, lumbar degenerative disc disease and lumbar spondlyosis. This disability was noted to have mild to moderate effects on activities of daily living. The August 2008 examiner opined that the Veteran's current claimed back condition, bilateral knees, bilateral feet, chronic arthritis and chronic neck condition were less likely as not (less than 50/50 probability) caused by or a result of a service connected gunshot wound right thigh with residuals. He explained that the cervical, lumbar and knee conditions were related to the aging process and not from the service-connected condition. He also said there were different anatomical parts. These records note that the Veteran was not employed and retired in 2003 due to eligibility by age or duration of work. On file is a private x-ray report dated in June 2009 of the Veteran's right and left knees that contains an impression of bilateral osteoarthritis and chondrocalcinosis. Also on file is a June 2009 x-ray report of the Veteran's thoracic and lumbosacral spine containing an impression of mild thoracic dextroscoliosis. It also contains an impression of paraspinal muscular spasm, minimal spondylosis, no acute fracture or subluxation seen, mild degenerative joint disease, and early discogenic disease between the L5-S1 intervertebral space. An August 2009 private magnetic resonance imaging (MRI) report of the Veteran's left knee revealed findings that were suspicious for underlying vertical flap tear involving the posterior horn of the medial meniscus extending into the body of the meniscus. Also noted was early degenerative joint disease involving the medial joint compartment. At a VA examination in October 2009, the Veteran reported knee pain which he attributed to his service-connected gunshot wound injury of the right thigh. On examination the Veteran had an antalgic gait and no breakdown or limps from the right thigh, though he was unable to repeatedly squat due to pain and weakness in the right quadriceps. Hip range of motion included flexion from 0 to 125 degrees, extension from 0 to 30 degrees, adduction from 0 to 25 degrees, abduction from 0 to45 degrees, external rotation from 0 to 60 degrees and internal rotation from 0 to 40 degrees. The examiner reviewed an x-ray report of the Veteran's right femur in January 1998 along with x-ray results of the Veteran's knees taken in August 2008. He diagnosed the Veteran as having right thigh muscle wound secondary to gunshot with weakness in right quadriceps and right and left knee osteoarthritis. A March 2011 VA outpatient records shows that the Veteran was seen for bilateral knee pain. He reported that he had had multiple body, knee and back trauma as a skydiver in service. In February 2012, a VA supplemental opinion was requested from the August 2008 VA examiner regarding the etiology of the Veteran's variously claimed orthopedic disabilities. After reviewing the Veteran's claims file and VA medical records, the examiner opined that the Veteran's bilateral knee condition, cervical conditions, and lumbar conditions were less likely as not (less than 50/50% probability) caused by or a result of the Veteran's active service or aggravated by his service-connected right thigh disability. He said the right thigh injury was not related anatomically to bilateral knee, cervical or lumbar areas (bilateral knee osteoarthritis/cervical degenerative disc disease and spondylosis/lumbar degenerative disc disease and spondylosis). He said all of these conditions were not related to pathophysiologically to the service connected condition of the right thigh muscle wound secondary to gunshot injury. He further remarked that a medical opinion for bilateral foot pain would not be rendered since no pathology was found on the last VA examination performed in August 2008. He went on to remark that as was reported at the August 2008 VA examination, cervical, lumbar and knee conditions were related to normal aging process and not from service connected condition or from military service. He reported that the Veteran was observed on the examination performed in August 2008 to have a normal gait pattern without any assistive devices and had adequate lower extremity muscle strength. He said the muscle group affected by gunshot wound was MSG 14 (right quadriceps muscles). He reported that after reviewing the August 2008 examination report, it was noticed that the Veteran was able to perform all activities of daily living without assistance or with minimal difficulties due to right thigh pain. III. Analysis Law and Regulations As an initial matter, the Board notes that the Veteran is not claiming lumbar and cervical spine disabilities, disabilities of the right and/or left knee, or disabilities of the right and/or left feet as a result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden /Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Under this regulation, where the nonservice-connected disability is aggravated, rather than caused, by the service-connected disability, a baseline level of severity of the nonservice-connected disease or injury be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. This baseline level of severity, as well as any increase in severity due to the nature progress of the disease, is thereafter to be deducted from the current level of disability to determine the extent of aggravation. See 38 C.F.R. § 3.310(b) (2012). As the Veteran's claims for service connection for right and left knee disabilities, right and left foot disabilities, and cervical and lumbar spine disabilities were filed in April 2008, the current version of 38 C.F.R. § 3.310 as outlined above, and amended effective October 10, 2006, is for consideration. See 38 C.F.R. § 3.310 (2012). With that said, under the facts of this case, the regulatory change does not impact the outcome of the appeal. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion At the outset, the Veteran's claims for service connection for right and left foot disabilities cannot be granted because there is no evidence that he has had a right and/or left foot disability during the duration of this appeal. In this regard, x-rays of the Veteran's feet at the August 2008 VA examination revealed no acute soft tissue or bony abnormalities and the Veteran was not given a foot diagnosis at that time as "no pathology [was] identified." The August 2008 VA examiner reiterated this in a February 2012 addendum opinion when he remarked that a medical opinion for bilateral foot pain would not be rendered since no pathology was found on the last VA examination performed in August 2008. Moreover, the outpatient treatment records on file do not otherwise show right and/or left foot disabilities. Accordingly, the Board must conclude that the requirements for establishing service connection for a right and/or left foot disability have not been met for the simple reason that the Veteran has not been shown by the evidence to have such disabilities at any point during the pendency of this claim. See 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim). As for claims of service connection for cervical and/or lumbar spine disabilities and for right and/or left knee disabilities, service connection under 38 C.F.R. § 3.303(b) for chronic disabilities in service or continuity of symptomatology after service is not warranted as this has not been shown by the evidence of record. As is noted in the facts above, the Veteran's service treatment records are devoid of complaints or treatment with respect to the cervical spine and right and/or left knee problems. While these records are positive for complaints of lumbar spine pain in December 1965 and January 1966, the Veteran was diagnosed in December 1965 as having mild lumbosacral strain and no abnormalities of the bone or joint were found by X-ray in January 1966. Moreover, the Veteran was found to have a normal evaluation of the spine at his service separation examination in April 1966. Postservice medical evidence shows that the Veteran was not again treated for his orthopedic complaints until decades after service, beginning in August 2008, when he underwent a VA examination and was shown by x-ray to have degenerative/discogenic disease of the cervical and lumbar spines and mild degenerative changes of the knees. The scant post service medical records on file dated prior to this time, consisting of an October 1966 VA examination report and VA outpatient treatment records dated through December 1998, are silent for cervical, lumbar and right and/or left knee complaints or findings. The absence of documented symptoms of cervical, lumbar and right and/or left knee problems from the time of the Veteran's service separation in June 1966 until the VA examination report in August 2008 interrupts continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Though this finding is not determinative of the claim, it warrants consideration. Accordingly, as the weight of evidence does not show chronic cervical, lumbar and right and/or left knee disabilities since service or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established. With respect to establishing service connection on a direct basis under 38 C.F.R. § 3.303(d), the evidence militates against the Veteran's claims for service connection for lumbar and cervical spine disabilities and for disabilities of the right and/or left knees. In this regard, the VA examiner in August 2008 negated a nexus between these disabilities and service based on his review of the Veteran's claims file and examination of the Veteran. He opined that the Veteran's conditions were less likely as not (less than 50/50 probability) caused by or a result of his service-connected gunshot wound right thigh with residuals. He explained that the cervical, lumbar and knee conditions were related to the aging process and not from his service connected condition. He noted that there were different anatomical parts. In his addendum opinion in February2012, the examiner likewise opined that the Veteran's bilateral knee, cervical and lumbar conditions were less likely as not caused by or the result of the Veteran's active service and were related to the normal aging process. There is no medical opinion on file that is contrary to this opinion. In terms of secondary service connection, the August 2008 VA examiner issued an addendum opinion in February 2012 wherein he opined that the Veteran's bilateral knee, cervical, and lumbar conditions were less likely as not aggravated by his service-connected right thigh disability. He reported that the right thigh muscle injury was not related anatomically to bilateral knee, cervical or lumbar areas (bilateral knee osteoarthritis cervical degenerative disc disease and spondylosis lumbar degenerative disc disease and spondylosis). He said that all the conditions mentioned were not related pathophysiologically to service connected right thigh muscle wound secondary to gunshot injury. As to the Veteran's statements that his postservice bilateral knee osteoarthritis/cervical degenerative disc disease and spondylosis/lumbar degenerative disc disease and spondylosis are related to service or secondary to his service-connected gunshot wound injury to the right thigh, the Veteran is certainly competent to testify as to his symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Notwithstanding the fact that this matter appears to be the type of medical matter as to which the courts have held lay testimony is not competent, even if the Veteran were competent to opine as to the etiology of his bilateral knee osteoarthritis/cervical degenerative disc disease and spondylosis/lumbar degenerative disc disease and spondylosis, the specific and reasoned opinion of the trained professional in August 2008 and his addendum opinion in February 2012 negating a nexus outweighs the Veteran's general lay assertion of a nexus. Based on the foregoing, the Board finds that the weight of evidence goes against the Veteran's claims for service connection for cervical and lumbar spine disabilities, disabilities of the right and left knees, and disabilities of the right and left feet, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right knee disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. Entitlement to service connection for a left knee disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. Entitlement to service connection for a right foot disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. Entitlement to service connection for a left foot disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. Entitlement to service connection for a low back disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. Entitlement to service connection for a cervical disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. REMAND With respect to the issue of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh, the Board remanded the issue in January 2012 and issued the following directive to the Agency of Original Jurisdiction (AOJ): "whether or not the 2008 examiner is available, the Veteran should be accorded a current examination by a physician knowledgeable in orthopedic disability for the purpose of determining the current nature and extent of impairment attributable to the Veteran's service-connected right thigh disability." This directive included the request that the examiner provide findings pertinent to any functional loss of the right lower extremity. The record shows that the RO obtained a supplemental opinion from the August 2008 examiner in February 2012 regarding the Veteran's service-connected residuals of a gunshot wound to the right thigh, but did not accord him a new VA examination per the Board's January 2012 remand directives. In rendering a supplemental opinion in February 2012, the August 2008 examiner, and the RO in turn, relied on findings from the August 2008 examination performed approximately four years earlier. Thus, the action is not in compliance with the Board's remand directives with respect to affording the Veteran a new examination. A new examination is especially pertinent in view of the Veteran's reports that the condition is progressive and the Board's request for functional loss findings. The Court has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. The Court further held that where the remand orders of the Board or the Court are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, this matter must be remanded so that the Veteran may be afforded a new examination. 38 C.F.R. § 3.159; 38 U.S.C.A. § 5103A(d). As for the claim for service connection for a right hip disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh, it does not appear that the August 2008 VA examiner addressed this disability nor do the remand directives of January 2012 include development of this issue despite it being a perfected issue on appeal. See 38 C.F.R. § 20.200. Thus, further development of this issue is warranted by the record; namely, to afford the Veteran a VA examination for the purpose of obtaining a medical opinion that addresses the nature and etiology of his claimed right hip disability. 38 C.F.R. § 3.159; 38 C.F.R. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination for the purpose of assessing the nature and etiology of his claimed right hip disability and to determine the nature and extent of impairment attributable to his service-connected gunshot wound injury of the right thigh. Any indicated studies are to be performed. The claims file must be made available to the examiner for review. The examiner should be asked to address whether it is at least as likely as not (that is, a 50 percent degree of probability or higher) that any right hip disability is causally related to the Veteran's active service or aggravated (permanently increased in severity or made worse ) by his service-connected right thigh disability. The examiner should include his or her rationale for the opinion. The examiner should also be asked to provide an opinion as to the degree of impairment of the residuals on the Veteran's ability to function. The examiner should also indicate whether the residuals result in pain on repeated use and/or flare-ups, fatigue, weakness, lack or endurance, and/or incoordination. In addition, the muscle group affected by the gunshot wound should be identified. 2. Thereafter, the AOJ should consider the evidence of record and readjudicate the claims of entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh, and entitlement to service connection for a right hip disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. With respect to the latter claim, all theories of service connection, to include aggravation, should be considered. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he should be provided a supplemental statement of the case and be given an appropriate period of time in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs