OSTEOARTHRITIS

S. F. KEANE · 2024 · Case ID: A24030561

GRANTED

Summary

The veteran, who served in the U.S. Air Force from February 2008 to October 2012, appealed the denial of service connection for several conditions and an increased rating for vertigo. The Board granted service connection for left hip strain with osteoarthritis, right hip strain with osteoarthritis, left knee Hodgkins Schlatter disease, and calcaneal spur/left ankle pain, all found to be secondarily related to the veteran's already service-connected right knee condition, right ankle condition, and lumbar intervertebral disc syndrome with radiculopathy. The Board found the private medical opinion from APRN J.L. to be the most probative evidence, concluding that the veteran's service-connected right lower extremity conditions caused an altered gait and imbalanced load, leading to overcompensation in the left lower extremity and aggravating the claimed conditions. The Board assigned little probative value to the VA examiner's negative nexus opinions, noting they failed to consider the cumulative effects of the service-connected right lower extremity conditions and did not address aggravation. For vertigo, the Board granted an increased rating to 30 percent, finding the veteran's condition met the criteria for dizziness and occasional staggering, supported by VA examinations and the private opinion. The Board found the private opinion more persuasive due to its comprehensive rationale and citation of medical literature, ultimately resolving doubt in the veteran's favor.

Rationale

Private opinion found secondary connection likely due to altered gait and overcompensation.; VA opinion found no clear link between joints and did not consider aggravation.; Board found private opinion more probative due to comprehensive rationale and medical literature.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210208-141207

Full Decision Text

Citation Nr: A24030561
Decision Date: 06/10/24 Archive Date: 06/10/24

DOCKET NO. 210208-141207
DATE: June 10, 2024

ORDER

Entitlement to service connection for left hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

Entitlement to service connection for right hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

Entitlement to service connection for left knee Hodgkins Schlatter disease with pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

Entitlement to service connection for calcaneal spur, left ankle pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

Entitlement to an increased disability rating of 30 percent, but no higher, for vertigo is granted.

FINDINGS OF FACT

1. The Veteran's left hip strain with osteoarthritis with small acetabular osteophytes is proximately due to and/or aggravated by the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome.

2. The Veteran's right hip strain with osteoarthritis with small acetabular osteophytes is proximately due to and/or aggravated by the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome.

3. The Veteran's left knee Hodgkins Schlatter disease with pain is proximately due to and/or aggravated by the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome.

4. The Veteran's calcaneal spur left ankle pain is proximately due to and/or aggravated by the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome.

5. The Veteran's service-connected benign paroxysmal positional vertigo (BPPV) is manifested by dizziness and occasional staggering.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for left hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § § 3.303, 3.310.

2. The criteria for entitlement to service connection for right hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § § 3.303, 3.310.

3. The criteria for entitlement to service connection for left knee Hodgkins Schlatter disease with pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § § 3.303, 3.310.

4. The criteria for entitlement to service connection for calcaneal spur, left ankle pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § § 3.303, 3.310.

5. The criteria for entitlement to an increased disability rating of 30 percent, but no higher, for vertigo have been
U.S.C. §§ 1110, 5107; 38 C.F.R. § § 3.303, 3.310.

5. The criteria for entitlement to an increased disability rating of 30 percent, but no higher, for vertigo have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code (DC) 6204.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from February 2008 to October 2012.

The Board notes that the rating decisions on appeal were issued in January 2021. The Veteran timely appealed these rating decisions to the Board in February 2021 using VA Form 10182 and elected the evidence lane. As such, the Board can only consider the evidence at the time of the January 2021 rating decisions and evidence submitted within 90 days of the February 2021 VA Form 10182.

In this case, additional evidence was received within the appropriate window for the evidence review lane; therefore, the Board will consider the newly submitted evidence.

Service Connection

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. § 1110; 38 C.F.R. § 3.303 (a).

As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § § 3.303.

Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § § 3.310 (a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310 (b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

1. Entitlement to service connection for left hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

2. Entitlement to service connection for right hip strain with osteoarthritis with small acetabular osteophytes, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

3. Entitlement to service connection for left knee Hodgkins Schlatter disease with pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

4. Entitlement to service connection for calcaneal spur, left ankle pain, to include as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

The Veteran asserts that the above conditions are secondarily related to his service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome.

After review of the record, the Board finds that the criteria for service connection for left hip strain with
, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome, is granted.

After review of the record, the Board finds that the criteria for service connection for left hip strain with osteoarthritis with small acetabular osteophytes, right hip strain with osteoarthritis with small acetabular osteophytes, left knee Hodgkins Schlatter disease with pain, and calcaneal spur, left ankle pain, as secondary to the service-connected right knee condition, right ankle condition, and radiculopathy, right lower extremity associated with lumbar intervertebral disc syndrome have been met.

At the outset, the Board notes that there are current diagnoses for left hip strain with osteoarthritis with small acetabular osteophytes, right hip strain with osteoarthritis with small acetabular osteophytes, left knee Hodgkins Schlatter disease with pain, and calcaneal spur, left ankle pain. See December 2020 VA examinations.

A December 2020 VA examiner provided negative nexus opinions. With regard to the bilateral hip strains, the examiner concluded that the bilateral hip conditions are not proximately due to the service-connected right knee condition. In support, the examiner reasoned that there is no evidence from orthopedic literature to suggest injury to one joint would have any significant impact on another or unopposed uninjured joint or limb, unless injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb. The examiner further noted that such result would lead to length discrepancy of more than 5 cm, indicative of an obvious Trendelenburg gait. Consequently, the examiner concluded that such level of severity is not supported based on record review, history, or examination. The examiner explained that it is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it.

With regard to the left ankle, the examiner concluded that the left ankle condition is not proximately due to the service-connected right knee condition. In support, the examiner reasoned that a current chronic diagnosis was not rendered. The examiner noted that x-ray of the ankle was negative for fracture misalignment or tibiotalar joint effusion, with very little plantar calcaneal spur. Citing to medical literature, the examiner explained the history of calcaneal spurs, i.e., heel spurs, and noted that while 1 out 10 people have heel spurs, only 1 out of 20 people with heel spurs have pain.

With regard to the left knee, the examiner concluded that the left knee condition is not proximately due to the service-connected right knee condition. In support, the examiner reasoned that a current chronic diagnosis was not rendered. The examiner confirmed that x-ray of the knee revealed corticated enthesophyte ossification about the tibial tuberosity, suggestive of sequalae of Hodgkins Schlatter disease. Citing to medical literature, the examiner explained the history and nature of Osgood-Schlatter disease.

A January 2021 private opinion from APRN J.L. was submitted who concluded that it is at least as likely as not the Veteran's left ankle pain, bilateral hip strain, and left knee Hodgkins were incurred in service or caused by the service-connected right ankle condition, right knee condition, and right lower extremity radiculopathy. In support, APRN J.L. reasoned that the Veteran has been service connected for the right ankle, right knee, and right lower extremity radiculopathy conditions since 2015 and examination reports show limited range of motion in the right lower extremities. APRN J.L. explained that when a single extremity is limited in motion due to pain or other factors, it is common for an individual to overcompensate and use the opposing extremity, leading to asymmetries and imbalance of load, such overstretching, tearing, or inflammation of the opposing joints.

Additionally, APRN J.L. acknowledged the December 2020 VA examination indicated that there is no clear evidence suggesting injury to one joint would lead to significant impacts on the opposing joints; however, she noted that a 1994 study from AAOS found that
right knee, and right lower extremity radiculopathy conditions since 2015 and examination reports show limited range of motion in the right lower extremities. APRN J.L. explained that when a single extremity is limited in motion due to pain or other factors, it is common for an individual to overcompensate and use the opposing extremity, leading to asymmetries and imbalance of load, such overstretching, tearing, or inflammation of the opposing joints.

Additionally, APRN J.L. acknowledged the December 2020 VA examination indicated that there is no clear evidence suggesting injury to one joint would lead to significant impacts on the opposing joints; however, she noted that a 1994 study from AAOS found that a discrepancy of 1.2 cm is capable of influencing scoliosis curvature of the spine, showing that even mild asymmetries can lead to further injuries over many years. Finally, APRN J.L. stated that the December 2020 VA examiner only considered whether the claimed conditions were aggravated by the right knee condition but had the examiner considered the effects of the combined right lower extremity conditions, with noted altered gait, the examiner would have concluded that the claimed conditions were aggravated by the right lower extremity conditions.

Ultimately, APRN J.L. opined that the Veteran's right lower extremity conditions combined caused an altered gait and imbalanced load with overcompensation focused on the left lower extremity, and such altered biomechanics over the course of years directly contributed to and/or aggravated the above claimed conditions. APRN J.L. cited to several articles and studies and confirmed review of the Veteran's claims file, to include examination reports and lay statements, in support of such conclusion.

Upon review of the evidence, the Board assigns the December 2020 VA opinion little probative value since the examiner did not consider the effects of the other service connected right lower extremity conditions, i.e., right ankle and right lower extremity radiculopathy, as a basis for providing the negative nexus opinions on a secondary basis. Additionally, the December 2020 VA examiner did not address aggravation in rendering a secondary service connection opinion.

The Board finds the January 2021 private opinion the most probative objective evidence of record. APRN J.L. possesses the requisite medical knowledge to provide such opinion, as it is based upon a review of the Veteran's medical records, medical literature, and consideration of his reported history. Also, it is accompanied by a specific rationale which is consistent with the evidence of record. The January 2021 private opinion cites to medical literature in direct contradiction to the December 2020 VA examiner's conclusion that there is no clear evidence from medical literature that injury to one joint would cause injury to the opposing joint.

In light of the foregoing, the Board finds that the evidence supports the claim, and the benefits sought on appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.310.

Increased Ratings

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider
may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 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).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

5. Entitlement to an increased disability rating of 30 percent, but no higher, for vertigo is granted.

The Veteran asserts this his vertigo is more severe than contemplated by the assigned evaluation.

The Veteran is currently evaluated as 10 percent disabling under DC 6204 based on occasional dizziness.

Under this DC, a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted for dizziness and occasional staggering. The Note to DC 6204 states that a diagnosis of vertigo is a prerequisite for a rating under DC 6204. 38 C.F.R. § 4.87, DC 6204. This is the maximum schedular rating available.

Private treatment records in 2014 demonstrate a diagnosis for vertigo and intermittent dizziness with various durations. The Veteran describes his symptoms as floating, imbalance, and light headedness, aggravated by bending, rapid rise, and turning his head left and right. See February 2015 Medical Treatment Record-Non-Government.

A July 2019 VA examination demonstrates a diagnosis for BPPV. The Veteran reports dizziness and "leaning to the left" for the past four days. He also reports vertigo sensations occurring four times per year, resolved by exercise and medication. The examination does however show the Veteran's gait to be normal and that his tinnitus was unrelated to his vertigo.

A December 2020 VA examination demonstrates a diagnosis for BPPV. The Veteran reports symptoms of dizziness and imbalance since 2014, occurring three to four times per month. He reports onset of dizziness upon head movements. He endorses other symptoms consistent of staggering and nauseousness with occasional headaches. The examination does not evidence any other signs or symptoms associated with other vestibular conditions. Notably, the examination shows unsteadied gait on the right side and nystagmus on the left side.

As indicated above, a January 2021 private opinion from APRN J.L. was submitted who concluded it is at least as likely as not the Veteran's vertigo resulted in dizziness and occasional staggering, occurring four times a year lasting anywhere between one to four hours. In support, APRN J.L. reasoned the Veteran has a long history of dizziness and/or vertigo associated with migraine headaches. Additionally, APRN J.L. noted that examination findings evidence dizziness associated with migraines and symptoms occurring as often as two times a day, lasting for three to four hours at a time. APRN J.L. indicated that in August 2014, the Veteran was seen for continued complaints of dizziness and eventually diagnosed with BPPV. In addition to dizziness, the Veteran reported that he suffered from imbalance and tendency to stagger to the left side, occurring every three to ten days and lasting few hours at a time. APRN J.L. cited to the July 2019 VA examination that noted "Onset of the vertigo with description of dizziness and leaning to the left that lasts 4 days." Treatment records also evidenced that the Veteran's vertigo was receptive to medication.

APRN J.L. confirmed the Veteran was prescribed medication for migraines and confirmed a known correlation between onset of migraines and onset of dizziness and/or vertigo, caused by a combination of vascular events along with an alteration of neural activity associated with the migraine event. As such, APRN J.L. noted migraine events may contribute to or worsen vertigo attacks, but that such attacks may occur absent onset of a migraine. APRN J.L. concluded that, in viewing the entire record, it was apparent the Veteran suffered vertigo attacks with occasional staggering, occurring two to three times a month and lasting between one to three hours on average. The vertigo attacks had been lessened due to medications both for vertigo and migraines. Additionally, APRN J.L. concluded that the Veteran likely suffered from severe attacks occurring more often and with longer duration if no medications were prescribed for either condition. However, APRN J.L. cautioned that even with medications, the Veteran still reported at least four attacks of vertigo with staggering per year.

Based on the evidence of record, a higher rating of 30 percent is warranted for the entire period on appeal. The evidence reflects that the Veteran's vertigo/loss balance issue/dizziness has produced symptoms of dizziness and occasional staggering. Specifically, VA treatment records demonstrate the Veteran's reports of vertigo with a description of dizziness and imbalance on the left side. The July 2019 VA examination demonstrates dizziness and "leaning to the left" for the past four days. The December 2020 VA examination demonstrates symptoms of dizziness and imbalance since 2014, occurring three to four times per month. Finally, the January 2021 private opinion confirms the Veteran's condition is symptomatic of dizziness and occasional staggering.

Resolving all doubt in the Veteran's favor, the Board concludes that the criteria for an increased rating of 30 percent, the maximum schedular rating, have been met for the entire period on appeal. The claim is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Y.Asfaw, 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.

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