Citation Nr: 21032638 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-33 094 DATE: May 27, 2021 ORDER Entitlement to increased disability evaluation in excess of 40 percent prior to July 17, 2019 and in excess of 50 percent thereafter for service-connected residuals of right-scapula gunshot wound is denied. Entitlement to an earlier effective date than June 26, 2012 for a rating of 40 percent for the residuals of right-scapula gunshot wound is denied. Entitlement to service connection for right-hip disorder, as secondary to and/or aggravated by service-connected residuals of total right-knee replacement, is denied. Entitlement to a temporary total rating for total right-hip replacement is denied. REMANDED Entitlement to service connection for cervical-spine disorder, to include as secondary to service-connected residuals of right-scapula gunshot wound, is remanded. Entitlement to service connection for left-upper-extremity radiculopathy, as secondary to cervical-spine disorder, is remanded. FINDINGS OF FACT 1. The objective medical evidence shows at no time in the period prior to July 17, 2019 did the Veteran's service-connected residuals of right-scapula gunshot wound, as the dominant upper extremity, more closely approximate complete paralysis or severe incomplete paralysis in any upper-extremity radicular group or in any specific upper-extremity nerve, it did not exhibit unfavorable abduction limited to 25 degrees from the side and it did not show fibrous union of the humerus, nonunion of the humerus (false flail joint) and loss of head of the humerus (flail shoulder). In the period after July 17, 2019 residual impairment did not more closely approximate complete paralysis or severe incomplete paralysis in any upper-extremity radicular group or in any specific upper-extremity nerve other than severe incomplete paralysis of the long-thoracic nerve and severe incomplete paralysis of the upper radicular group (5th and 6th cervicales) and it did not show nonunion of the humerus (false flail joint) and loss of head of the humerus (flail shoulder). 2. The Veteran filed a claim for an increased rating for his gunshot wound residuals on June 26, 2012. Following exam showing increased impairment a 40 percent rating was assigned the date of the claim. Review of evidence for one year prior to the June 2012 claim does not show severe muscle injury to Muscle Group I. 3. The objective medical evidence shows right-hip disorder was not incurred in active service, it is not caused by an event, injury, or illness during active service and is not proximately due to, the result of or made worse beyond its natural progression by service-connected residuals of total right-knee replacement. 4. The objective medical evidence shows arthritis, as associated with right-hip disorder, did not manifest to a compensable degree within 1 year of separation from active service. 5. The objective medical evidence shows the residuals and convalescence after October 2013 surgery to replace the Veteran's right hip did not result from surgery on a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an increased disability evaluation in excess of 40 percent prior to July 17, 2019 and in excess of 50 percent thereafter service-connected residuals of right-scapula gunshot wound have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5301, 5303, 5304, 5200 - 5203, 8511 - 8519 (2020). 2. The criteria for an effective date earlier than June 26, 2012 for the assignment of a 40 percent rating for residuals of right-scapula gunshot wound have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.400, Diagnostic Code 5301. (2020). 3. The criteria for service connection for right-hip disorder, to include as secondary to and/or aggravated by service-connected residuals of total right-knee replacement, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for a temporary total rating for total right-hip replacement have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1972 to April 1976 and from December 1977 to August 1979. Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). 1. Entitlement to increased disability evaluation in excess of 40 percent prior to July 17, 2019 and in excess of 50 percent thereafter for service-connected residuals of right-scapula gunshot wound. Residuals of right-scapula gunshot wound are rated under Diagnostic Code 5301-8510. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27 (2020). In this case, the Agency of Original Jurisdiction (AOJ) assigned a hyphenated diagnostic code to recognize injury to muscle group I (Diagnostic Code 5301) as the Veteran's underlying diagnosis and incomplete or complete paralysis of the right shoulder (Diagnostic Code 8510) as the relevant rating criteria. See 38 C.F.R. § 4.20. Put more simply, the Veteran's right-scapula has been diagnosed with muscle injury, but it is rated under the code criteria for the resulting lost or impaired function. As stated, Diagnostic Code 5301 pertains to Muscle Group I, regarding the muscles arising from the extrinsic muscles of the shoulder girdle, including the trapezius, levator scapulae and serratus magnus. The functions of these muscles include upward rotation of the scapula and elevation of the arm above shoulder level. Under Diagnostic Code 5301, a maximum rating of 40 percent for the major (dominant) arm and a maximum rating of 30 percent for the minor (non-dominant) arm is warranted if impairment of this muscle group is "severe." The August 2012 VA examination for muscle injuries, discussed below, shows the Veteran is right-hand dominant. Under Diagnostic Code 8510, for moderate incomplete paralysis, a 40 percent rating is warranted for the dominant extremity. For severe incomplete paralysis, a 50 percent rating is available (dominant). For complete paralysis with all shoulder and elbow movements lost or severely affected, the code provides a 70 percent rating (dominant). The term "incomplete paralysis" as it relates to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than complete paralysis pertaining to each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. Under the rating criteria, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to ensure its decisions are "equitable and just." 38 C.F.R. § 4.6. When rating muscle injury from gun shot wounds, separate muscle, limitation of motion and neurological ratings will not be assigned unless it is demonstrated that there are completely different functions affected by the injury. 38 C.F.R. § 4.55. Where multiple groups around one joint are affected, the rating muscle injury rating generally must be lower than the evaluation for unfavorable ankylosis of that joint. Id. In order to afford the Veteran every possibility of establishing evidence warranting an increased evaluation, the Board has looked to closely related or analogous diagnostic codes pertaining to impairment of the shoulder and arm. Service and immediate post-service treatment records reveal that the Veteran sustained an accidental gunshot wound, reportedly from a shotgun, to the right shoulder, with a fracture of the right clavicle. After treatment, some weakness of Muscle Group I was described. The Veteran was placed on a temporary retirement list due to the injury. A 30 percent rating under Code 5301 was initially assigned. The Veteran was re-evaluated in 1977 and reported good function of the shoulder, with what was described as almost complete recovery. He re-entered service, but increased duties resulted in a discharge due to the shoulder flare-up. The 30 percent rating was continued for muscle injury and nerve damage in the area of the injury. A private examination in July 2012 shows Dr. J.W.D. found the Veteran had "significant limitation in abduction of both right and left shoulder, more significantly, the right." However, Dr. J.W.D. did not make goniometric measurements and the there is no range of motion measurement to apply to the relevant criteria for a higher rating under a closely related or analogous diagnostic code, such as Diagnostic Code 5200, which provides a 50 percent rating when there is unfavorable abduction limited to 25 degrees from the side. In the August 2012 VA examination for muscle injuries, the VA examiner noted the Veteran is right-hand dominant. He diagnosed gunshot wound, right shoulder. He found the effect of the muscle injury on muscle substance or function to be induration or atrophy of an entire muscle following the simple piercing by a projectile. The signs or symptoms attributable to the Veteran's muscle injury were right-side loss of power and right-side fatigue-pain, both consistent at a more severe level. The August 2012 VA examiner made no findings of complete or incomplete paralysis of the Veteran's right-upper extremity, which would afford him a higher rating under Diagnostic Code 8510. The closely related or analogous diagnostic codes in the range of 5302 through 5306 not only address different, specific Muscle Groups (II through VI), they in fact offer no higher rating than 40 percent, at which the Veteran is rated in the period prior to July 17, 2019. As already stated, additional ratings cannot be "added on" one upon the other when they reflect similar symptoms and essentially the same diagnosis, as this would be impermissible "pyramiding." Additionally, the August 2012 VA examiner made no findings of any muscle group, other than Group I, being affected by the injury Briefly, diagnostic codes related to or analogous to Diagnostic Code 8510 (for the upper radicular group), include Diagnostic Codes 8511 through 8519, each referencing different radicular nerve groups or specific nerves in the upper extremities, except for Diagnostic Code 8513, which addresses all radicular groups. However, although they offer ratings as high as 90 percent, each code's rating criteria requires findings of incomplete or complete paralysis and there are no findings in the August 2012 VA examination of paralysis of any sort. Based on the findings of the August 2012 VA examination, a December 2012 rating decision increased the rating to the maximum for Diagnostic Code 5301 of 40 percent, effective June 26, 2012. This is commensurate with severe damage to the muscle group affected. In a November 2012 VA orthopedic surgery consult, the treatment provider noted the Veteran's reports of worsening symptoms. He further noted that right-shoulder x-rays showed mild degenerative joint disease of the glenohumeral joint, but with no evidence of superior migration of the humeral head. Nonetheless, his impression was chronic right-shoulder long-thoracic-nerve injury, with atrophy of scapular musculature and chronic winging, interfering with activities of daily living. In the subsequent period through July 2019, the Veteran consistently reported right-shoulder pain, weakness and limited range of motion in his visits to VA, but the treatment notes are without any specific measurements or findings for VA rating purposes. The Veteran submitted a December 2012 private neurological and orthopedic examination report, in which Dr. R.D. found in pertinent part range of motion measurements for right shoulder abduction at 80 degrees (180 degrees, normal), with pain on movement. Upon further testing, Dr. R.D. concluded the Veteran's right-brachial plexus is permanently affected and he has permanent, progressive weakness in his right bicep, deltoid and tricep. Relevant related or analogous diagnostic codes which offer a rating higher than 40 percent, as already stated above, include Diagnostic Code 5200, when there is unfavorable abduction limited to 25 degrees from the side. The December 2012 VA examiner found the Veteran was limited at 80 degrees. Diagnostic Code 5202 has been recently revised, effective February 7, 2021, but, as the period at issue is prior to July 17, 2019, the revisions are not relevant. In this period, Diagnostic Code 5202 offers ratings at 50, 60 and 80 degrees for specific impairments of the humerus, but the December 2012 VA examiner made no such findings. Therefore, based on Dr. R.D.'s findings, there is no basis on which to increase the Veteran's 40 percent rating. The record for the period prior to July 2019 does not show findings of complete or incomplete paralysis necessary for a higher rating under Diagnostic Code 8510, nor are their findings which satisfy the rating criteria among the numerous closely related or analogous diagnostic codes which offer a rating higher than 40 percent. There is no basis in the medical evidence on which the Board can assign a higher rating. As noted, where neurological findings and muscle injury findings are in the same anatomical area and do not affect different functions, separate ratings are not assigned. In the period from July 17, 2019, a VA examination for shoulder conditions, conducted on that date, shows a diagnosis of pain in the right-shoulder/right scapula region. The VA examiner noted the Veteran's reports of chronic pain, limitation of movements of the right shoulder and intermittent subjective painful paresthesias of the right shoulder joint, as well as right-scapula winging. The Veteran further reported constantly aching pain, gradually worsening pain over time and limitations regarding pulling, pushing, lifting more than 5 pounds, and lifting the right arm above the head. However, at the outset, the Board notes that, as the Veteran in this period is rated at 50 percent, only certain findings on examination, when applied to the rating criteria under the relevant diagnostic codes, allow him to attain a rating over 50 percent. For example, the July 2019 VA examiner for shoulder conditions made findings for right-shoulder range of motion, some of which are inadequate for VA rating purposes. However, there is no higher rating under Diagnostic Code 5301, under which the Veteran is rated. Looking to the related or analogous diagnostic codes for the shoulder in the range of 5200 through 5203, as stated above in the period prior to July 17, 2019, only Diagnostic Code 5202 offers ratings impairments of the humerus. The July 2019 VA examiner specifically found the Veteran does not have nonunion of the humerus (false flail joint) and loss of head of the humerus (flail shoulder), positive findings of which would provide ratings of 60 and 80 percent, respectively. Under the February 7, 2021 revisions, now applicable in this period, the above rating criteria have remained the same. In the July 2019 VA examination for muscle injuries, the VA examiner diagnosed gunshot wound, right scapular with retained foreign body, limitation of motion and paresthesias. The VA examiner incorporated the Veteran's reports as noted in the shoulder-conditions examination and he found injuries to Muscle Group I. The Board will note here that the November 2012 Brief, submitted on the Veteran's behalf, asserted that a new examination was warranted for findings which should be found in additional muscle groups, to include Groups III, V and VI. In this examination, the July 2019 VA examiner in fact found injuries to additional groups beside Group I, but they include only Groups III (shoulder girdle: pectoralis major) and IV (shoulder girdle muscles: supraspinatus, infraspinatus and teres minor, subscapularis, coracobrachialis). However, once again, Diagnostic Code 5301 (Group I), as well as the related Diagnostic Codes 5303 ( Group III) and 5304 (Group IV) do not provide ratings beyond 40 percent, Moreover, the July 2019 VA examiner made no findings for other segments of the right-upper extremity and, therefore, it is not the province of the Board simply to substitute its own non-medical judgment and apply what it might view as related or analogous diagnostic codes pertaining to those other segments. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, higher ratings are not for assignment under the provisions for combined ratings as set out in Section 4.55 above. As of July 2019, more significant nerve involvement was shown than had been previously demonstrated, and this supported a higher rating under the neurological code. In the July 2019 VA examination for peripheral nerves conditions, the VA examiner diagnosed right-long-thoracic, right-dorsal-scapular and right-suprascapular nerve injuries. Once again, he re-stated the Veteran's reports as above. Among the upper-extremity nerves and radicular groups, he only found severe incomplete paralysis for the long thoracic nerve and severe incomplete paralysis of the upper radicular group (5th and 6th cervicales). The July 2019 VA examiner made no other findings of a paralysis, incomplete or complete. As such, no related or analogous diagnostic codes from 8510 through 8519 offering ratings above 50 percent for any other radicular group are applicable. For the periods of prior to July 17, 2019 and thereafter, functional loss due to pain were noted in the above August 2012 and July 2019 VA examinations, as well as changes affecting normal working movements, which were sufficiently reviewed, they were included in the examination findings and considered in the assignment of the Veteran's current disability evaluation, but they have not presented a basis for further higher evaluations beyond those assigned prior to and after July 17, 2019. See 38 C.F.R. §§ 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. at 204-07; Mitchell v. Shinseki, 25 Vet. App. at 37; Burton v. Shinseki, 25 Vet. App. at 5. The Board has carefully considered the Veteran's numerous reports to treatment providers and examiners, as they appear throughout the record, as well as the August 2012 Statement in Support of Claim by the Veteran's wife. The Board is well aware lay persons are competent to report on matters they observe or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to provide statements of symptoms which either felt or observed and there is no reason to doubt their credibility. However, their lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran and his wife contend he has continually lost range of motion and experienced worsening chronic pain, describing this in current symptoms. However, the Board has looked to the findings of August 2012 and July 2019 VA examinations and the December 2012 private neurological and orthopedic report of Dr. R.D.. It has considered the rating criteria of Diagnostic Codes 5301 and 8510 and no less than 21 related or analogous diagnostic codes to determine their applicability to allow the Veteran the broadest avenue to higher ratings. However, the record of examinations and treatment visits over the periods prior to July 17, 2019 and thereafter did not produce findings which satisfy any of the relevant rating criteria. Without such findings, there is no evidentiary basis on which Board can assign a higher rating. The Board therefore assigns more probative value to the findings of the August 2012 and July 2019 VA examiners. They are medical professionals who conducted the examinations and testing during in-person sessions with the Veteran, they thoroughly reviewed the Veteran's medical history and their findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the foregoing reasons and based on the medical evidence of record, the Board finds the preponderance of the evidence is against increased disability evaluations in excess of 40 percent prior to July 17, 2019 and in excess of 50 percent thereafter. Earlier Effective Date The effective date for an increased evaluation for a service-connected disorder is generally the date the claim was received or when entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The date of "entitlement" is the date the claimant meets the basic eligibility criteria for the benefit. However, compensation can also be awarded up to one year before the date of claim, provided the claim for an increased disability rating was received within one year of the increase in disability, as shown by the evidence. That is to say, the effective date of such an increase would then be the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective on the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (a) and (b)(2); 38 C.F.R. § 3.400 (o)(1)(2). See also Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997). 2. Entitlement to an earlier effective date than June 26, 2012 for a rating of 40 percent for residuals of right-scapula gunshot wound. As noted above, following service a 30 percent rating had been assigned for residuals of a gunshot wound of the right shoulder with damage to Muscle Group I. based on the findings recorded at that time, as noted above, with some improvement following the initial injury it was determined that moderately severe muscle injury was demonstrated. On June 26, 2012, the Veteran filed for an increased rating. As noted above, the August 2012 rating showed some increased muscle and neurological pathology, and as a result a 40 percent rating was assigned effective the date of the claim. The Board is aware of the proposition to which generally it is bound that an effective date should not be assigned mechanically based merely, for example, on the date of a diagnosis, and that the facts should be examined to determine the date on which a Veteran's disability first manifested. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). However, as shown in the summary of the record in the previous section, there is no medical evidence of record within 1 year of the filing of the claim by the Veteran which can factually establish that he met the rating criteria for a 40 percent rating earlier than the date he filed his claim. Medical evidence establishing increased impairment for residuals of right-scapula gunshot wound was demonstrated after the claim for an increase. There is no showing of more severe impairment 1 year prior to the June 2012 claim. 38 C.F.R. § 3.400. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Moreover, service connection of a nonserviceconnected disease or injury will be established if an increase in severity of the nonserviceconnected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonserviceconnected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see 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) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). 3. Entitlement to service connection for right-hip disorder, to include as secondary to and/or aggravated by service-connected residuals of total right-knee replacement. 4. Entitlement to a temporary total rating for total right-hip replacement. The service treatment records (STRs) show in February 1973, November 1974 and December 1977 in-service examinations, the Veteran's lower extremities were found to be normal. Additionally, in the 1973 and 1974 examinations, he denied past or current arthritis/rheumatism/bursitis, lameness, and bone, joint or other deformity. In the December 1977 examination, he reported or lameness and bone, joint or other deformity, but with no further specific information reported. (He had sustained the aforementioned gunshot wound by that examination.) The post-active-service record shows an October 2013 MRI of the right hip revealed diffuse labral degeneration and degenerative change in the pubic symphysis. A private treatment provider noted the Veteran's report of pain running from hip to ankle and assessed the Veteran with joint pain in the pelvic region and thigh. He stated, "there is reasonable medical certainty that the hip pain was not caused by the knee intervention but may have exacerbated it due to the altered gait." In November 2013, he noted the Veteran's history of an October 2013 right-hip arthroplasty. However, the Veteran denied trauma to his hips, as well as joint stiffness, leg cramps and muscle aches. That day's x-rays revealed no acute or chronic abnormalities, no loosening, subsidence, or lucent lines of the prosthesis and an otherwise normal examination, with satisfactory alignment of the prosthesis. In an August 2014 VA examination for hip and thigh conditions, the VA examiner stated 2013 diagnoses of primary osteoarthritis right hip status post October 2013 total right-hip replacement and pubic symphysis arthritis per imaging. She noted the Veteran's reports of much sitting, being unable to walk and unable to do tasks at home. After examination and testing, the August 2014 VA examiner opined that right-hip disorder is less likely as not (less than 50 percent probability) caused by, a result of or aggravated by service-connected total right-knee replacement. She explained in her rationale that right-hip disorder is "a primary osteoarthritis, which means it occur[]s on its own, not 'secondary' or due to fracture/anatomic damage to the joint." She further noted there is no history of right-hip fracture, due to right-knee disorder. "Primary osteoarthritis is generally due to aging, with contributing factors like genetic tendency, obesity, etc. Although gait may be antalgic from knee conditions, it would be a transient or momentary sensation when weight bearing, and would not be a cause per se of permanent worsening [aggravation] of the osteoarthritic process." She added the Veteran himself reports he does not do tasks around the house because of his right-knee disorder, "therefore transitory stress is not even a factor." She further opined, as the Veteran is not service-connected for a back disorder, "there is NO basis for claiming [service connection] for pubic symphysis arthritis (claimed as 'pelvic joint pain condition') due to back condition. However, just for the records [sic] Veteran's claimed symphysis pubic degenerative arthritis is not caused by or a result of NON[]-[service-connected] back condition." In her rationale, she explained, "There is no scientific/medical support for attributing primary degenerative changes in one joint to primary degenerative changes in another. The changes in each joint respond to the same factors. Veteran is NOT [service-connected] for back condition. STR reports mechanical type back pain which was resolved at the time of separation (Note the 12-13-77 Report of Medical History). [Service connection] was denied on 9-17-79 when back exam and back x-rays were found normal." The Veteran has submitted a December 2014 private DBQ for hip and thigh conditions, in which Dr. M.J.P. states 2012 diagnoses of right-hip joint replacement and right-trochanteric pain syndrome. After examination and testing, Dr. M.J.P. opined that it is more likely than not that the right-hip-replacement is "related to" the service-connected total right-knee replacement with altered gait and "lower quarter biomechanics/pathomechanics contributing to right-knee degenerative changes." However, Dr. M.J.P. provided no rationale to explain the basis of this opinion. In the period overall between 2014 through 2021, the Veteran consistently reported in visits to VA chronic pain. Approximately half a dozen, x-rays, CT scans and MRIs in the period revealed the total right-hip replacement, with no signs of hardware failure, loosening or complications, although the Veteran's pain was noted. The STRs show no reports of arthritis as associated with any disorder during active service, there is no medical evidence of diagnoses and treatment in active service and the record gives no indication of the manifestation of arthritis within a year of separation from active service. Looking to the possibility of continuity of symptomatology establishing a nexus between any in-service injury or disease and arthritis as a subsequent chronic disease, the Board notes again it was never identified in service, and putting aside the lack of medical evidence of any treatment for arthritis at that time, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's current right-hip disorder to any in-service injury or disease, particularly after the approximately 34 years since discharge from active service before right-hip degenerative changes, indicating arthritis, appear in the record. Consequently, the presumption of service connection for arthritis as a chronic disease associated with right-hip disorder is not available to the Veteran. The Board has considered the Veteran's numerous reports to examiners and treatment providers, as they appear throughout the record. Although detailed as to current symptoms, they point to no medical evidence which establishes a nexus of the Veteran's current right-hip disorder to any event, injury or illness during active service, to secondary causation from right-knee disorder or to aggravation of symptoms by right-knee disorder. The Board therefore assigns greater probative weight to August 2014 VA examiner's opinions. She is a medical professional who made her findings during an in-person examination of the Veteran, she thoroughly reviewed the Veteran's medical history and her opinions are detailed and fully explained. See generally Nieves-Rodriguez v. Peake, supra at 302-04. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against claim for service connection. Additionally, as the evidence does no support service connection for right-hip disorder, entitlement to a temporary total rating based on right-hip replacement surgery in October 2013 is denied. 38 C.F.R. § 4.30 (a). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to cervical-spine disorder, to include as secondary to and/or aggravated by service-connected residuals of right-scapula gunshot wound. 2. Entitlement to service connection for left-upper-extremity radiculopathy, as secondary to and/or aggravated by cervical-spine disorder. The Veteran underwent a March 1996 VA examination for "neck (not spine)," in which the VA examiner noted that the Veteran had had no treatment for his right shoulder until September 1995, "when he noted sudden onset of marked stiffness in his neck and right shoulder." An orthopedic surgeon noted from an MRI that there was some spurring at C3-4,with minimal encroachment on the dura and focal encroachment at C6-7 in the lateral recess, indicating possible focal herniation, further indicating possible impingement syndrome. The Veteran underwent chiropractic therapy. Right-shoulder pain continued to radiate up to his right-side neck. In his December 2012 private neurological and orthopedic examination report, Dr. R.D. found compensating for weakness has led to cervical-disc degeneration and opined that it is as likely as not that his cervical-spine disorder is related to the gunshot wound and the residual muscle weakness. As Dr. R.D. provided no rationale to explain how he arrived at this opinion and the March 1996 VA examination primarily addresses its findings to the Veteran's residuals of right-scapula gunshot wound gives no opinion on direct or secondary service connection for cervical-spine disorder as due to residuals of right-scapula gunshot wound, a current VA examination is necessary. As the claim for left-upper-extremity, to include as secondary to cervical-spine disorder, is inextricably intertwined with the claim for cervical-spine disorder, the examination also must addresses any findings of left-upper-extremity radiculopathy. The examination should further provide several opinions addressing direct service connection for cervical-spine disorder, service connection as secondary to residuals of right-scapula gunshot wound, direct service connection for left-upper-extremity radiculopathy, and service connection as secondary to cervical-spine disorder. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for cervical-spine disorder and left-upper-extremity radiculopathy at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a VA examinations by an examiner with appropriate specialties for producing findings for cervical-spine disorder and upper-extremity radiculopathy. The complete electronic claims file must be made available to the examiner in conjunction with the opinion reviews and/or examination. The examiner should detail all findings. The examiner, after identifying the diagnosis, as well as the nature, extent and severity of the claimed disorders, is requested to render opinions addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that cervical-spine disorder was incurred in active service or was caused by an event, injury or illness during active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that cervical-spine disorder was proximately due to, the result of or made worse beyond its natural progression (secondary to and/or aggravated) by service-connected residuals of right-scapula gunshot wound. (c) Whether it is at least as likely as not (a 50 percent or greater probability) or less likely than not (less than a 50 percent probability) that left-upper-extremity radiculopathy was proximately due to, the result of or made worse beyond its natural progression (secondary to and/or aggravated) by cervical-spine disorder. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment in the rationales on any relevant opinions found in the record. The examiner is further requested to acknowledge, address, consider, and discuss the lay statements of the Veteran and his wife in the record, to include the Veteran's February 1996 correspondence statement, the August 2012 Statement in Support of Claim of his wife and the Veteran's statement, as it quoted in the January 2016 Statement in Support of Claim, as well as the Veteran's reports to treatment providers, as they appear throughout the record, and all other lay evidence of other persons as it pertains to the disorders. The Board urges the examiner to note that findings or opinions rendered without discussing the lay evidence of the Veteran, his wife and others will be deemed insufficient for purposes of VA adjudication. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Associate 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.