DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served during multiple periods between April 1982 and May 2008, appeals the December 2020 rating decision. The veteran sought service connection for lumbar spine and left hip conditions, claimed as secondary to existing service-connected right knee and left ankle disabilities. Additionally, the veteran appealed for Total Disability based on Individual Unemployability (TDIU). The Board reviewed evidence including the veteran's claims, service records, private orthopedic surgeon opinions, VA examination reports, and the veteran's testimony. A private orthopedic surgeon provided a positive opinion, finding the lumbar spine and left hip conditions were more likely than not aggravated by and secondarily related to the service-connected knee and ankle issues. This opinion was found persuasive due to its detailed rationale and consideration of the veteran's history. Conversely, a VA examiner provided a negative opinion, which the Board found less persuasive due to a lack of thoroughness and consideration of the veteran's full medical history and reports. Applying the benefit of the doubt, the Board granted service connection for the lumbar spine and left hip conditions as secondary. The Board also granted TDIU, finding that the veteran's combined service-connected disabilities, including the newly granted secondary conditions, rendered her unable to obtain and maintain substantially gainful employment, despite her prior work history and SSA disability determination.

Rationale

Private orthopedic surgeon provided persuasive opinion linking lumbar spine condition to service-connected knee/ankle issues.; VA examiner's negative opinion was less persuasive due to lack of thoroughness.; Benefit of the doubt resolved in veteran's favor.

Full Decision Text

Citation Nr: A26028540
Decision Date: 03/30/26	Archive Date: 03/30/26

DOCKET NO. 210226-147379
DATE: March 30, 2026

ORDER

Entitlement to service connection for a lumbar spine condition, as secondary to a service-connected disability, is granted.

Entitlement to service connection for a left hip condition, as secondary to a service-connected disability, is granted. 

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, the evidence suggests that her lumbar spine and left hip disabilities are secondary to her service-connected right knee and left ankle disabilities.

2. The evidence supports a finding that the Veteran's service-connected disabilities preclude her from securing and following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for service connection for a lumbar spine disability, as secondary to the service-connected right knee and left ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. 

2. The criteria for service connection for a left hip condition, as secondary to the service-connected right knee and left ankle disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.310. 

3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from April 1982 to April 1983, from June 11, 2007, to June 30, 2007, from November 2007 to January 2008, and from May 12, 2008, to May 31, 2008.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 27, 2024.

Therefore, the Board may only consider the evidence of record at the time of the December 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or attorney] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 herein, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, service connection 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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to, or the result of, a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability
 Generally, service connection 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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to, or the result of, a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

Entitlement to service connection for a lumbar spine condition, as secondary to a service-connected disability, is granted.

Entitlement to service connection for a left hip condition, as secondary to a service-connected disability, is granted. 

The Veteran contends that her lumbar spine and left hip disabilities were caused by her service-connected right knee and left ankle disabilities. See September 2020 Claims. Specifically, she stated that her right knee and left ankle surgeries caused her leg to be disfigured, resulting in an odd gait, which in turn caused her current lumbar spine and left hip disabilities. Id. As such, this decision will only address secondary service connection for the Veteran's lumbar spine and left hip disabilities.

The Veteran has current diagnoses of both lumbar spine and left hip conditions. Notably, favorable findings acknowledged in the December 2020 AOJ decision are that the Veteran has current diagnoses of degenerative disc disease with laminectomy and left hip strain. The Board is bound by these favorable findings. Thus, the current diagnosis requirement is met for each disability.

The second element on the issue of entitlement to secondary service connection is also met, as the record indicates that the Veteran is currently service-connected for right knee arthritis, status post anterior cruciate ligament (ACL) tear; left ankle sprain and fracture, status post tarsal tunnel release; right knee instability; and right knee arthroscopic meniscectomy. Therefore, the remaining question for the Board is whether the Veteran's lumbar spine and left hip disabilities are related to, caused by, or aggravated beyond their normal progression by her service-connected disabilities.

In this regard, the record contains a March 2020 positive medical opinion from the Veteran's private board-certified orthopedic surgeon, who indicated that he reviewed the Veteran's medical records and that he has been providing medical care to the Veteran since October 2019. The clinician gave a detailed overview of the Veteran's orthopedic conditions, to include a history of complaints, treatments, and diagnoses. He noted that he recommended many treatment modalities to the Veteran, including consideration of seeing a spine surgeon, bracing, physical therapy with modalities, injections, and activity modifications. He also stated that the Veteran returned to his treatment facility in December 2019 with complaints of terrible left hip pain, and that the Veteran was planning a hip replacement surgery in a different state. The clinician noted the Veteran reported that her hip and knee pains correlated with each other. The clinician explained that antalgia from each other aggravated the other, that ankle bracing bothered the Veteran's foot, and that the Veteran's left ankle and right knee were worse on uneven surfaces. The clinician stated that the Veteran suffers from right knee and left ankle arthritis that are secondary to injuries she sustained in the military. He reiterated that he reviewed the Veteran's claims file and medical history. He concluded that it is clear to him, more likely than not, that the Veteran's left hip and lumbar spine have been aggravated and are secondarily related to the service-connected right knee and left ankle. He stated that both the left ankle and right knee have conditions that are end stage in nature. He also stated that according to the Veteran's records, the left ankle was bad enough to consider bracing and fusion surgery in 2011. He explained that this suggests the Veteran had more arthritis or instability than the x-ray reports noted. He further explained that the right knee has severe limitations of motion at a range of 20 to 100 degrees, with a persistent limitation across all examinations. 

The clinician noted that the amount of degenerative change in the Veteran's right knee and left ankle is significant enough to warrant surgery and that both are permanent conditions that have a natural history of getting worse over time, and not better. He explained that as a result of these conditions that cause abnormal motion, guarding
 conditions that are end stage in nature. He also stated that according to the Veteran's records, the left ankle was bad enough to consider bracing and fusion surgery in 2011. He explained that this suggests the Veteran had more arthritis or instability than the x-ray reports noted. He further explained that the right knee has severe limitations of motion at a range of 20 to 100 degrees, with a persistent limitation across all examinations. 

The clinician noted that the amount of degenerative change in the Veteran's right knee and left ankle is significant enough to warrant surgery and that both are permanent conditions that have a natural history of getting worse over time, and not better. He explained that as a result of these conditions that cause abnormal motion, guarding with antalgic gait, and instability on walking, it is more likely than not that this would cause more pain in the Veteran's back and hips. He further explained that favoring the right knee since 1982 can, in his medical opinion, lead to enough wear and tear on the left hip, connecting the right knee injuries to the left hip arthritis. He noted that, by the same token, the Veteran's abnormal gait with a history of laminectomy in the lumbar spine, would more likely than not lead to the degenerative scoliosis of the lumbar spine with the need to use a cane. The clinician remarked that his opinion on the Veteran's conditions was made within a reasonable degree of medical certainty.

The Board also notes that in December 2020, a VA examiner negatively opined that the Veteran's lumbar spine and left hip disabilities are not due to the service-connected right knee conditions. The examiner stated that the medical evidence does not support the plausibility that this can occur. He noted that it is very unlikely that the Veteran's knee condition would cause any additional injury or aggravate beyond its natural progression, to cause strain or injury to the back and hip. He restated that there is no medical or scientific evidence to support the claim that the Veteran's back and left hip conditions were due to, or related to, the Veteran's knee condition. He explained that the Veteran's knee condition would prevent the Veteran from participating in high-impact activities to result in additional stress to the back and hip. He stated that, unfortunately, without any evidence, the claims cannot be supported at this time.

Based on the evidence of record, the Board finds that, in giving the Veteran the benefit of the doubt, her lumbar spine and left hip disabilities were caused or aggravated by her service-connected right knee and left ankle disabilities. In making this determination, the Board finds the medical opinion of the orthopedic surgeon to be persuasive because it adequately accounts for the nature and etiologies of the Veteran's lumbar spine and left hip disabilities, to include whether they were either caused or aggravated by her service-connected right knee and left ankle disabilities. The private medical opinion includes an adequate rationale supported by the Veteran's medical records, medical literature, and the clinician's expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board assigns this opinion probative weight.

However, the Board assigns less probative weight to the VA medical opinions because, unlike the opinion of the private orthopedic surgeon, the VA clinician appears to be less familiar with the Veteran's entire medical history, to include how her conditions negatively impact each other. The VA examiner did not adequately consider the Veteran's reports concerning the history and symptoms of her disabilities. Additionally, the rationales given are not as thorough or adequate as those provided by the orthopedic surgeon. As such, the Board finds that the VA examiner's opinions cannot be used to deny the Veteran service connection for her lumbar spine and left hip disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Accordingly, the Board resolves all reasonable doubt in the Veteran's favor, thereby allowing the Veteran to prevail on her claims of entitlement to service connection for her lumbar spine and left hip conditions, each as secondary to the service-connected right knee and left ankle disabilities. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Entitlement to a TDIU is granted.

The Veteran contends that she is unable to obtain and maintain substantially gainful employment due to her right knee, left ankle, left hip, and lumbar spine disabilities, all disabilities for which she is now service-connected. See August 2020 Claim. She explained that she was on family and medical leave due to her disabilities and that she eventually retired early at the age of 60
, thereby allowing the Veteran to prevail on her claims of entitlement to service connection for her lumbar spine and left hip conditions, each as secondary to the service-connected right knee and left ankle disabilities. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Entitlement to a TDIU is granted.

The Veteran contends that she is unable to obtain and maintain substantially gainful employment due to her right knee, left ankle, left hip, and lumbar spine disabilities, all disabilities for which she is now service-connected. See August 2020 Claim. She explained that she was on family and medical leave due to her disabilities and that she eventually retired early at the age of 60 due to such disabilities. Id. 

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).

The Veteran is service-connected for right knee arthritis with a 50 percent rating; left ankle sprain and fracture with a 20 percent rating; right knee instability with a 20 percent rating; right knee arthroscopic meniscectomy with a 10 percent rating; and a noncompensable rating for right and left knee scars. The Veteran's combined disability rating is 80 percent. As the Veteran has one disability ratable at 40 percent or more, and a combined rating to 70 percent or more, the schedular requirement for consideration of a TDIU is satisfied. 38 C.F.R. § 4.16 (a).

The question at issue is whether the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. 38 C.F.R. § 4.16 (a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The evidence shows that the Veteran completed four years of college, with additional training as a helicopter mechanic. See Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), received in August 2020. Her reported work history, as noted on her VA Form 21-8940, reveals that she last worked in November 2019 as a social worker, where she earned $145,000.00 per year. She indicated that she became too disabled to work in November 2019 due to her service-connected disabilities.

In September 2020, the Veteran's last employer submitted information confirming that the Veteran worked as a caseworker, with her employment ending in November 2019. The employer indicated that the Veteran retired and is currently receiving retirement benefits.

Information obtained from the Social Security Administration (SSA) in August 2020 indicates that the Veteran was determined to be disabled as of November 8, 2019. The Veteran's SSA medical records include information related to her service-connected disabilities, suggesting that functional limitations stemming from those disabilities are among the primary reasons for her SSA disability onset.

Regarding the impact of the Veteran's disabilities on her ability to work, on a March 2020 Disability Benefits Questionnaire (DBQ) submitted by the Veteran's private clinician, it was noted that the Veteran had limited mobility due to right knee pain, right knee instability, back pain, and left hip pain. It was also noted that the Veteran was recommended for right and left knee replacements. On the March 2020 DBQ for the ankle, the clinician noted that the Veteran's ankle pain is relatively constant, and is made worse when the Veteran is standing, or when walking for any distance. For the left hip, the clinician noted on the March 2020 left hip DBQ that the Veteran is severely limited by pain with standing, sitting, walking, and bending, and that the Veteran would need a left hip replacement. On the March 2020 DBQ for the back, the clinician noted that the Veteran is unable to stand for any length of time, that sitting in one place is uncomfortable and leads to lots of pain. It was further noted that the Veteran is unable to bend, stoop, climb, or lift.

At an October 2020 VA examination for the knees,
 that the Veteran's ankle pain is relatively constant, and is made worse when the Veteran is standing, or when walking for any distance. For the left hip, the clinician noted on the March 2020 left hip DBQ that the Veteran is severely limited by pain with standing, sitting, walking, and bending, and that the Veteran would need a left hip replacement. On the March 2020 DBQ for the back, the clinician noted that the Veteran is unable to stand for any length of time, that sitting in one place is uncomfortable and leads to lots of pain. It was further noted that the Veteran is unable to bend, stoop, climb, or lift.

At an October 2020 VA examination for the knees, the Veteran reported pain with any use, including when standing and walking. The examiner noted that the Veteran cannot stand for longer than five minutes or walk for longer than 100 yards. This was also noted at the October 2020 VA examination for the Veteran's ankles. It was indicated that the Veteran cannot bend or squat. However, it was also noted that the Veteran can be employed in a sedentary position that would allow her to stand when needed. At a December 2020 VA examination for the back, the examiner also remarked that the Veteran cannot sit, stand, or walk for longer than five minutes, but that she can perform repetitive bending for more than five repetitions. Regarding the left hip, the examiner noted that the Veteran cannot sit, stand, or walk for longer than five minutes due to pain.

In November 2024, the Veteran's attorney submitted a "Medical Limitations Questionnaire" which was completed by the Veteran's private orthopedic surgeon. It notes that a physical evaluation of the Veteran reveals muscle atrophy, muscle pain, joint pain, an abnormal gait, scoliosis, and musculoskeletal deformity. The clinician concluded that the Veteran was not able to return to any of her past work, or any other work, on a competitive or full-time basis due to her service-connected impairments. The clinician noted that the Veteran is severely limited, and that she was told to avoid twisting, stooping or bending, crouching or squatting, and climbing ladders and stairs in a competitive work environment. It was noted that, assuming some level of work, it is estimated that the Veteran would miss approximately four or more days per month, and that pain and other symptoms would severely interfere with her attention and concentration approximately 25 percent of the time, which would inhibit her work performance for even simple work tasks. The clinician also noted that the restrictions and limitations caused by the Veteran's disabilities are permanent in nature. The Veteran's attorney indicated that this information was reviewed by a vocational rehabilitation counselor and expert witness.

At the August 2024 Board hearing, the Veteran testified that she has not worked since August 2020 due to her service-connected disabilities. She stated that she uses a rollator to walk, and that she cannot sit or stand for longer than two minutes due to severe pain.

The Board has carefully considered statements from the VA examiners, the Veteran, the Veteran's orthopedic surgeon, and the Veteran's attorney regarding the effects of the Veteran's disabilities on her employability. However, the ultimate TDIU determination is the responsibility of a VA adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board finds that the evidence weighs persuasively in the Veteran's favor that her service-connected disabilities prevent her from obtaining and maintaining substantially gainful employment, to include even sedentary work, due to severe limitations in sitting, standing, and walking, and the limited ability to focus and concentrate due to increased pain. 

Thus, by resolving any reasonable doubt in the Veteran's favor, the Board concludes that her service-connected disabilities render her unable to obtain and maintain substantially gainful employment when her educational, work background, and limitations due to her service-connected disabilities are taken into consideration. The claim for a TDIU is therefore granted. 38 U.S.C. § 5107 (b).

 

 

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Trowers

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.