Back to BVA DecisionsMIXEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 240610-446862
HIP IMPAIRMENT OF
A. J. SPECTOR · 2025 · Case ID: A25048080
Summary
The veteran, who served from November 1974 to October 1980, appeals the denial of service connection for bilateral hip, bilateral foot, bilateral knee, and low back disabilities. The veteran contends that his service on a submarine led to weight gain, which in turn caused or aggravated osteoarthritis in these joints. He also argues that his service-connected varicose veins and bilateral ankle disabilities contributed to these conditions, acting as an intermediate step through obesity. The Board found that the veteran had established current diagnoses for all claimed conditions. However, multiple VA examinations were deemed inadequate because they failed to address the veteran's theory of obesity as an intermediate step or the potential aggravation of his conditions by his service-connected varicose veins and ankle disabilities. A private medical opinion from September 2022 concluded that the veteran's bilateral foot disability was at least as likely as not caused or exacerbated by obesity secondary to his service-connected varicose veins. Another private opinion from July 2023 found the veteran's obesity and subsequent osteoarthritis in his hips, knees, feet, and back to be related to his service-connected bilateral ankle disabilities, citing the kinetic chain principle. The Board found these private opinions more probative than the VA opinions. Applying the benefit of the doubt, service connection for the bilateral hip, foot, knee, and low back disabilities was granted. The claim for a right shoulder disability was remanded for a new VA examination to address the veteran's contentions regarding service connection, aggravation, and the role of obesity.
Rationale
AOJ found current diagnosis of left hip disability.; Multiple VA opinions inadequate for failing to address obesity as intermediate step or aggravation.; Private opinions found probative for linking obesity secondary to service-connected varicose veins and bilateral ankle disabilities to left hip disability.
Full Decision Text
Citation Nr: A25048080 Decision Date: 05/30/25 Archive Date: 05/30/25 DOCKET NO. 240610-446862 DATE: May 30, 2025 ORDER Entitlement to service connection for a left hip disability is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a left foot disability, to include osteoarthritis, pes planus, plantar fasciitis, hallux valgus, calcaneal spur, and hammer toes, is granted. Entitlement to service connection for a right foot disability, to include osteoarthritis, pes planus, plantar fasciitis, hallux valgus, calcaneal spur, and hammer toes, is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence that the Veteran's left hip disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 2. There is at least an approximate balance of positive and negative evidence that the Veteran's right hip disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 3. There is at least an approximate balance of positive and negative evidence that the Veteran's left foot disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 4. There is at least an approximate balance of positive and negative evidence that the Veteran's right foot disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 5. There is at least an approximate balance of positive and negative evidence that the Veteran's left knee disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 6. There is at least an approximate balance of positive and negative evidence that the Veteran's right knee disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. 7. There is at least an approximate balance of positive and negative evidence that the Veteran's low back disability is secondary to his service-connected varicose veins and bilateral ankle disabilities, to include weight gain due to those service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 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 November 1974 to October 1980. 3.310. 6. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 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 November 1974 to October 1980. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a November 2023 higher level review rating decision and a May 2024 supplemental claim rating decision by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In June 2024, the Veteran filed VA Form 10182 Decision Review Request, Board Appeal, Notice of Disagreement, under the Appeals Modernization Act (AMA), and selected direct review. Therefore, the Board may only consider the evidence of record at the time of the May 2024 rating decision (service connection for a left hip disability, right hip disability, left foot disability, right foot disability, left knee disability, right knee disability, and a low back disability) and the October 2023 rating decision (service connection for a right shoulder disability), which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim. 38 C.F.R. § 20.300. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. However, as remand is warranted for the issue of entitlement to service connection for a right shoulder disability, any evidence concerning that issue will be considered by the AOJ on remand. The Board notes that any favorable findings made by an AOJ, or any other prior VA adjudicator, is binding on the Board. The October 2023 supplemental claim rating decision specifically found that new and relevant evidence had been received to readjudicate the claim of entitlement to service connection for a right shoulder disability. The May 2024 supplemental claim rating decision specifically found that new and relevant evidence had been received to readjudicate the claims of entitlement to service connection for a left hip disability, right hip disability, left foot disability, right foot disability, left knee disability, right knee disability, and a low back disability. Therefore, the Board will proceed to the merits of the issues. Service Connection 1. Entitlement to service connection for a left hip disability 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left foot disability 4. Entitlement to service connection for a right foot disability 5. Entitlement to service connection for a left knee disability 6. Entitlement to service connection for a right knee disability 7. Entitlement to service connection for a low back disability The Veteran contends that he is entitled to service connection for his bilateral hip disabilities, bilateral foot disabilities, bilateral knee disabilities, and his low back disability because his service on a submarine caused him to gain weight, and his obesity caused him to have osteoarthritis of his hips, feet, knees, and back. He also contends that his service connected varicose veins and bilateral ankle disability caused or contributed to his claimed disabilities. Generally, to establish service connection a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S service connection a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310(a). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a), (b). Although obesity is not a disability for VA compensation purposes, it can constitute an "intermediate step" between a service-connected disability and another current disability that may be service-connected on a secondary basis. See Walsh v. Wilkie, 32 Vet. App. 300, 302 (2020). VAOPGCPREC 1-2017, explains this requires competent and credible evidence that: (1) the service-connected disability caused or aggravated the Veteran's obesity; (2) obesity was a substantial factor in causing the claimed disability; and (3) the claimed disability would not have occurred but for the obesity caused by the service-connected disability. Id. at 304. VA shall consider all information and medical and lay evidence of record. Where 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; see also Lynch v. McDonough, 21 F.4th 776, 781-782 (Fed. Cir. 2021) (en banc). As an initial matter, the Board recognizes that the AOJ made favorable findings that the Veteran has diagnoses of his bilateral hip disabilities, bilateral foot disabilities, bilateral knee disabilities, and his low back disability. Therefore, the first requirement for service connection has been established. In February 2022, the Veteran was afforded a VA feet examination. The examiner opined that the Veteran's feet disability was less likely than not due to his service connected varicose veins. The examiner indicated that a thorough review of medical literature failed to demonstrate a causal relationship between varicose veins and the feet disability. However, the examiner did not address the Veteran's contention that his obesity was caused by his varicose veins, and the obesity caused his feet disability. The Veteran submitted a medical article in December 2021 that shows obesity is one of the risk factors for plantar fasciitis. Nonetheless, the examiner did not address the issue of obesity as an intermediate step in the rationale. Moreover, the examiner did not provide an opinion regarding whether the Veteran's feet disability was aggravated by his service-connected varicose veins. A secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, the opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In March 2022, a VA feet opinion was obtained. The examiner opined that the Veteran's feet disability is less likely than not caused by his service-connected varicose veins because the medical literature does not show a causal relationship. The examiner then stated that the Veteran's varicose veins do not preclude him from all forms of exercise or make him increase his caloric intake, therefore did not cause his obesity. The opinion did not address whether the Veteran's feet disability was aggravated by his service-connected varicose veins. See El-Amin. Thus, the Board must find the March 2022 VA feet opinion to be inadequate. In April 2022, another VA feet opinion was obtained. The examiner opined that the Veteran's feet disability is less likely than not caused by his service-connected varicose veins because the medical literature does not show that varicose veins cause obesity. The examiner discussed that the Veteran was able to participate in some low impact physical activities. that the Veteran's varicose veins do not preclude him from all forms of exercise or make him increase his caloric intake, therefore did not cause his obesity. The opinion did not address whether the Veteran's feet disability was aggravated by his service-connected varicose veins. See El-Amin. Thus, the Board must find the March 2022 VA feet opinion to be inadequate. In April 2022, another VA feet opinion was obtained. The examiner opined that the Veteran's feet disability is less likely than not caused by his service-connected varicose veins because the medical literature does not show that varicose veins cause obesity. The examiner discussed that the Veteran was able to participate in some low impact physical activities. However, the examiner also did not address whether the Veteran's obesity was aggravated by his service-connected varicose veins. See El-Amin. As such, the Board must find the April 2022 VA feet opinion to be inadequate. In August 2022, multiple VA feet opinions, regarding the Veteran's multiple feet disabilities, were obtained. For each opinion the examiner opined that the Veteran's feet disabilities were less likely than not caused or aggravated by the Veteran's varicose vein because there is no pathoanatomical correlation that would explain the feet deformities being due to varicose veins due to the lack of anatomical connection. However, this opinion wholly disregards the Veteran's contention that his feet disabilities are directly related to his obesity. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board must find the August 2022 VA feet opinions to be inadequate. In September 2022, a private medical opinion concerning the Veteran's bilateral foot disability was received. The private clinician thoroughly reviewed the Veteran's medical records and statements. The private clinician stated that the Veteran's service-connected varicose veins caused pain and decreased activity levels since his time in service. It was also acknowledged that the Veteran had a history of varicose veins that worsened during his military service. The private clinician stated that literature from the Mayo Clinic indicates that varicose veins can cause an aching and heavy feeling in the legs, burning, throbbing, swelling, and worsened pain with activity and prolonged standing. It was opined that these symptoms would make it difficult for the Veteran to exercise effectively. The private clinician ultimately concluded that the Veteran's bilateral foot disability was at least as likely as not caused or exacerbated by his obesity secondary to his service-connected bilateral varicose veins. In May 2023, VA opinions concerning the Veteran's arthritis, bilateral hip disabilities, bilateral foot disabilities, bilateral knee disabilities, and low back disability were obtained. The May 2023 examiner opined for each of the conditions that the disability is less likely than not related to his military service because there is a lack of evidence showing a nexus between the disability and military service. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the May 2023 examiner did not address whether there was a connection between the Veteran's obesity and his claimed disabilities. The Veteran submitted multiple articles concerning the connection between obesity and the musculoskeletal system, but the examiner does not appear to have considered any of this evidence in providing the opinion. See Nieves-Rodriguez. Therefore, the Board must find the May 2023 VA opinions to be inadequate. In July 2023, a private medical opinion was submitted by Dr. M.R. concerning the Veteran's bilateral hips, bilateral knees, bilateral feet, and low back. Dr. M.R. thoroughly reviewed the Veteran's case file. It was opined that the Veteran's obesity led to and exacerbated his chronic pain and osteoarthritis in the knees, hips, feet, and low back. Dr. M.R. explained that recent studies have proven that various factors like adipose deposition, insulin resistance, and especially the improper coordination of innate and adaptive immune responses may lead to the initiation and progression of obesity associated osteoarthritis. It was stated that obesity is a risk factor for hip and knee osteoarthritis. It was also noted that a large volume of evidence exists pointing to the concurrence of obesity and pain complaints. Dr. M.R. went on to find that the chronic pain and osteoarthritis of the Veteran's feet, knees, hips, and back are related to his service-connected chronic bilateral ankle pain and osteoarthritis. Dr. M.R. thoroughly explained the kinetic chain, or kinetic link principle, in which the human body can be considered in terms of a series of like adipose deposition, insulin resistance, and especially the improper coordination of innate and adaptive immune responses may lead to the initiation and progression of obesity associated osteoarthritis. It was stated that obesity is a risk factor for hip and knee osteoarthritis. It was also noted that a large volume of evidence exists pointing to the concurrence of obesity and pain complaints. Dr. M.R. went on to find that the chronic pain and osteoarthritis of the Veteran's feet, knees, hips, and back are related to his service-connected chronic bilateral ankle pain and osteoarthritis. Dr. M.R. thoroughly explained the kinetic chain, or kinetic link principle, in which the human body can be considered in terms of a series of interrelated links or segments. Movement of one segment affects segments both proximal and distal to the first segment. Studies have linked flat feet, ankle instability, sagittal plane blockage and excessive pronation to low back pain. Ankle and foot deviations can be considered a potential cause for low back pain due to the disruption of the kinetic chain from the foot to the back. Dr. M.R. discussed that medical literature shows that foot and ankle symptoms significantly increase developing knee and hip symptoms. Since the lower extremity is a kinetic chain, anything that affects the ankle is thought to affect the knee and hips. Based on Dr. M.R.'s thorough medical analysis and application of the facts involved in this particular case, it was opined that it is at least as likely as not, and in fact it is within a high degree of certainty, that the Veterans low back, bilateral knees, bilateral hips, and bilateral feet disabilities are directly related to his obesity and were caused and aggravated by his service-connected bilateral ankle disabilities. Multiple VA secondary opinions were obtained in February 2024, April 2024, and May 2024 for the claimed disabilities. However, in each case the examiners did not address whether the Veteran's disability was aggravated. As such, the Board must find each of the opinions to be inadequate. See El-Amin; see also Barr. A May 2024 VA obesity opinion indicates that it is less likely than not that the Veteran's obesity was caused by his service-connected varicose veins and bilateral ankle disabilities because those conditions do not cause obesity. The Veteran was able to engage in low impact physical activity to maintain ideal weight. However, the opinion did not include a thorough medical analysis explaining why a reduced ability to exercise due to the service connected-disabilities would have no impact on the Veteran's weight. See Nieves-Rodriguez. Rather, a conclusory opinion was provided that joint conditions and varicose veins do not cause or aggravate obesity. See Id. The Board finds the September 2022 and July 2023 private medical opinions to be highly probative. The private examiners thoroughly reviewed the medical records, considered the Veteran's statements, provided medical literature to support the findings, and included clear and thoughtful medical analysis consistent with the facts involved in this particular case. See Nieves-Rodriguez. Therefore, the Board finds the September 2022 and July 2023 private medical opinions to be the most probative evidence concerning whether there is a nexus between the Veteran's service-connected disabilities and weight gain due to those disabilities, and his claimed bilateral hip disabilities, bilateral foot disabilities, bilateral knee disabilities, and low back disability. Based on the foregoing, the Board finds the evidence is at least in approximate balance that the Veteran's bilateral hip disabilities, bilateral foot disabilities, bilateral knee disabilities, and low back disability are related to his service-connected disabilities. Accordingly, affording the Veteran all benefit of the doubt, entitlement to service connection is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for a right shoulder disability is remanded. Under the AMA framework, the Board may remand, where there has been a duty to assist error prior to issuance of a rating decision. As part of the duty to assist, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Board regrets the additional delay, due to the VA's failure to assist, the Veteran's appeal must be remanded. In March 2023, the Veteran submitted a statement contending that his obesity is due to his military service, as well as his service-connected disabilities, and that the obesity is an intermediate step in demonstrating service connection of his right shoulder osteoarthritis. In May 2023, the Veteran was afforded a VA shoulder examination. The examiner opined that the Veteran's right shoulder , it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Board regrets the additional delay, due to the VA's failure to assist, the Veteran's appeal must be remanded. In March 2023, the Veteran submitted a statement contending that his obesity is due to his military service, as well as his service-connected disabilities, and that the obesity is an intermediate step in demonstrating service connection of his right shoulder osteoarthritis. In May 2023, the Veteran was afforded a VA shoulder examination. The examiner opined that the Veteran's right shoulder disability is less likely than not related to his military service. The rationale was that there is a lack of medical evidence demonstrating chronicity during or after service. However, as discussed above, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton. Moreover, the examiner did not address the Veteran's contention that his right shoulder disability is related to his obesity. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl. Therefore, the Board must find the May 2023 VA opinion to be inadequate. Accordingly, remand is warranted for further development. The matters are REMANDED for the following action: Obtain a VA opinion from an appropriate clinician concerning the nature and etiology of his right shoulder disability. The clinician must thoroughly review the Veteran's entire claims file, including a copy of this Remand. If the clinician determines that a new examination is necessary to provide the requested opinions a new VA shoulder examination should be scheduled. The clinician is asked to provide the following: a.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's right shoulder disability is related to his military service. b.) Opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's right shoulder disability was caused or aggravated by a service-connected disability. c.) Opine on whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's service-connected disabilities caused him to become obese or aggravated his obesity. d.) If the clinician finds that the Veteran's obesity is due to or aggravated by his service-connected disabilities, opine on whether the obesity, or its aggravation, is a substantial factor in causing the Veteran's right shoulder condition(s). e.) If the clinician finds that the Veteran's obesity is a substantial factor in causing his right shoulder condition(s), opine on whether he would not have been diagnosed with a right shoulder condition(s) but for the obesity, or the aggravation of the obesity. The clinician is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If the clinician finds any medical reason to reject the lay reports, then an explanation must be provided. The clinician must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion. A complete rationale for any opinion expressed must be provided. If the clinician is unable to reach an opinion without resort to speculation, he or she must explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.