HIP IMPAIRMENT OF

Summary

The Veteran, who served from June 1980 to June 1992, appeals the denial of service connection for bilateral hip pain and right knee instability, claimed as secondary to his service-connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy. The Board found that the Veteran met the current disability requirement for bilateral hip pain, noting that pain alone can constitute a disability, and that private physician records and VA examination statements reflected impairment in earning capacity. For the right knee, the VA examination provided a diagnosis of instability, meeting the current disability requirement. The Board found the Veteran credible regarding his bilateral hip pain and right knee instability, noting their onset after back surgery and subsequent worsening. The Board considered a private medical opinion from December 2022, which found it at least as likely as not that the Veteran's bilateral hip pain and right knee instability were related to his altered gait caused by service-connected lumbar degenerative disc disease, left knee instability, and lower extremity radiculopathy. The Board also considered medical articles suggesting a link between knee problems and hip/ankle mechanics, and that unilateral knee issues can lead to bilateral problems. While VA opinions in July 2023 opined less likely than not for secondary connection, they failed to consider the Veteran's lay statements, the private opinion, and the medical articles. The Board found these VA opinions entitled to less probative weight. Given the Veteran's credible accounts, the positive private medical opinion, and the medical literature, the Board found the evidence at least evenly balanced, resolving the doubt in the Veteran's favor. Therefore, service connection for bilateral hip pain and right knee instability, secondary to his service-connected conditions, was granted.

Rationale

Pain alone can constitute a disability.; Private medical opinion and medical literature support nexus.; VA opinions failed to consider all evidence, entitled to less probative weight.

Full Decision Text

Citation Nr: A25022064
Decision Date: 03/11/25	Archive Date: 03/11/25

DOCKET NO. 240119-410527
DATE: March 11, 2025

ORDER

Entitlement to service connection for bilateral hip pain, secondary to lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy, on a causation basis, is granted.

Entitlement to service connection for right knee instability, secondary to lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy, on a causation basis, is granted.

FINDINGS OF FACT

1.	The evidence is at least evenly balanced as to whether bilateral hip pain causes impairment in earning capacity and was caused by service connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy.

2.	The evidence is at least evenly balanced as to whether right knee instability was caused by service connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy.

CONCLUSIONS OF LAW

1.	With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hip pain, secondary to degenerative disc disease of the lumbar spine, left knee disabilities, and lower extremity radiculopathy on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2.	With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee instability, secondary to degenerative disc disease of the lumbar spine, left knee disabilities, and lower extremity radiculopathy, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1980 to June 1992.  

This case comes before the Board of Veterans' Appeals (Board) from a July 2023 rating decision by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).  In that decision, the AOJ denied service connection for bilateral hip disability and right knee disability.

In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. In his January 2024 VA Form 10182 the Veteran appealed his claims for bilateral hip pain and right knee instability both as secondary to lumbar degenerative disc disease and left knee disabilities.

Therefore, the Board may only consider the evidence of record at the time of the July 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

General Legal Principles 

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted 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).

Service connection is also warranted for disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection under 38 C.F.R. § 3.310 (a)
 a relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted 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).

Service connection is also warranted for disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection under 38 C.F.R. § 3.310 (a) is warranted where a non-service-connected disability would have been less severe but for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Spicer v. McDonough, 61 F. 4th 1360, 1366 (Fed. Cir. 2023) ("but for" causation "applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way... compensation [is warranted] for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause"). The Court has also held that the "'causation requirement in the phrase 'the result of' is 'broad,' in that it permits entitlement to VA benefits 'based on a multi-link causal chain.' "Payne v. Wilkie, 31 Vet. App. 373, 384 (2019). See also Spicer, 61 F.4th at 1364 ("The but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction").

1. Entitlement to service connection for bilateral hip pain secondary to service connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy is granted. 

2. Entitlement to service connection for right knee instability secondary to service-connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy is granted. 

The Veteran contends that his bilateral hip pain and right knee instability were caused by his service-connected lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy. In a January 2015 rating decision, the Veteran was granted service connection for left knee instability. In a January 2017 rating decision, the Veteran was granted service connection for lumbar degenerative disc disease, and lower extremity radiculopathy.

For the following reasons, entitlement to service connection for bilateral hip pain and right knee instability both on a secondary, causation basis, as due to lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy is warranted.

Although the evidence of record does not include a formal diagnosis of a particular bilateral hip disability, pain alone is sufficient in some circumstances to show the existence of current bilateral hip pain.  See Saunders, 886 F. 3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110).  In this case, April 2023 private physician records noted a decrease in the Veteran's hip strength and the other evidence of record including statements during the July 2023 VA examination reflect that the Veteran's bilateral hip pain causes impairment in earning capacity.  Therefore, the current disability requirement has been met.

The July 2023 VA examination report contains a diagnosis of right knee instability. The current disability requirement has thus been met. 

In a December 2022 private medical opinion, the clinician noted that he reviewed the evidence of record. He opined that while he could not determine the exact onset date of the Veteran's bilateral hip pain and right knee instability or definitively determine their cause, he found it was at least as likely as not that the Veteran's bilateral hip pain and right knee instability was related to his altered gait which was a result of his service connected lumbar degenerative disc disease, left knee instability, and lower extremity radiculopathy. As the clinician explained the reasons for his conclusions, his opinion is entitled to probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Monzingo v. Shinseki, 26 Vet
 date of the Veteran's bilateral hip pain and right knee instability or definitively determine their cause, he found it was at least as likely as not that the Veteran's bilateral hip pain and right knee instability was related to his altered gait which was a result of his service connected lumbar degenerative disc disease, left knee instability, and lower extremity radiculopathy. As the clinician explained the reasons for his conclusions, his opinion is entitled to probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate).

A December 2022 medical article submitted by the Veteran titled "Is knee osteoarthritis a symmetrical disease? Analysis of a 12 year prospective cohort study" explained that the prevailing research suggested that 80% of patients with unilateral knee problems developed bilateral knee problems after twelve years. Within the context of the Veteran's specific disability picture, this study warrants probative weight. Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion")

In another December 2022 medical article submitted by the Veteran titled, "Effects of knee osteoarthritis on hip and ankle gait mechanics" explained, changes in gait mechanics in knee joints have a strong effect on the ROM coronal motion arc and joint movement of the ankle and hip joints. Sacks v. West, 11 Vet. App. 314, 317 (1998).

In a July 2023 Disability Benefits Questionnaire (DBQ), the Veteran reported that following back surgery in 1998 he began to experience bilateral hip pain that has worsened over time, and he is in physical therapy to help with his bilateral hip pain. The Veteran is competent to report the history and current pain in his bilateral hips and the Board finds him credible in this regard. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

In a battery of July 2023 VA opinions, that contemplated secondary service connection for bilateral hip pain as a result of the Veteran's lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy, the clinician opined that it was less likely than not that the Veteran's bilateral hip pain was related to his service connected disabilities. In the examination reports, the clinician noted that no diagnosis was rendered on the Veteran's bilateral hip DBQ. Further, the clinician reported throughout the opinions that the Veteran's radiculopathy and sciatica is most likely radiating down from the back into the hips and noted that is most likely the cause of the Veteran's hip pain. The clinician noted that the DBQ and record is silent for a chronic hip condition, ongoing treatment, or management. Therefore, the clinician found it was less likely than not that the Veteran's bilateral hip pain is a result of the Veteran's service connected disabilities. However, the clinician did not consider the Veteran's lay statement in his DBQ reporting bilateral hip pain that began following back surgery in 1998 and has progressively worsened, the private medical opinion that found the Veteran's bilateral hip disability was at least as likely as not related to the Veteran's service connected disabilities, or the medical article submitted by the Veteran. Thus, this battery of opinions is entitled to less probative weight.  Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the
1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).

In a July 2023 DBQ the Veteran reported, he injured his left knee in service and had surgery. Since that time, he has been compensating for the left knee with his right knee causing pain that has worsened over time. The Veteran is competent to report the history of his right knee instability and the Board finds his statements credible in this regard. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

In July 2023 VA opinions, the clinician opined it was less likely than not that the Veteran's right knee instability was due to or the result of the Veteran's service-connected left knee disabilities. The clinician opined that the right knee instability and left knee instability are not medically related, and the right knee condition is a separate entity entirely from the left knee instability and unrelated to it. The clinician stated that in coming to her conclusion she conducted a thorough review of the medical literature and it failed to demonstrate a causal relationship.  However, the clinician did not consider the private medical opinion, the Veteran's lay statement nor the medical articles submitted by the Veteran. Thus, while the clinician explained the reasons for her conclusions, her opinion is entitled to less probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning").

In a January 2024 brief submitted by the Veteran's representative, the representative argued that the Veteran's bilateral hip pain and right knee instability was secondary to his left knee instability. Further, the representative argued that VA may not ignore private medical opinions, or credible medical journal research articles in rendering its decision. Thus, based on the totality of evidence in the record the representative argued that service connection for bilateral hip pain and right knee instability secondary to the Veteran's service connected disabilities is warranted.  The Board agrees.

While the Board could request an additional medical opinion specifically addressing the above-noted evidence and whether the Veteran's bilateral hip pain and right knee instability is warranted, in light of the Veteran's consistent and credible accounts and the positive private medical opinion, such a request might well be conceived of as an impermissible attempt to develop evidence with the exclusive intent of denying the Veteran's service connection claim for bilateral hip pain and right knee instability. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews, 34 Vet. App. 216. ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim").

Thus, to the extent that the negative VA opinions are probative, they are not of greater probative weight than the private opinion.  Consequently, the evidence is at least evenly balanced as to whether the Veteran's bilateral hip pain and right knee instability were caused by service-connected, lumbar degenerative disc disease, left knee disabilities, and lower extremity radiculopathy.  As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for bilateral hip pain and right knee instability on a secondary, causation basis, is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.D. Strain, 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.