HIP IMPAIRMENT OF

Summary

The veteran appeals the denial of service connection for anal fissures, bilateral hip instability, bilateral knee patellofemoral syndrome, and lumbar spine disability, as well as entitlement to TDIU. The Board granted service connection for bilateral hip instability and bilateral knee patellofemoral syndrome as secondary to the service-connected lumbar spine disability. The Board found that while VA examiners opined the knee and hip conditions were not medically related to the lumbar spine, a private medical opinion provided a favorable nexus, stating it was at least as likely as not that the conditions were secondary due to the Veteran's altered gait and posture caused by his lumbar spine issues. The Board found the private opinion more persuasive, resolving the equipoise in the Veteran's favor. The Board remanded the claims for anal fissures, lumbar spine disability, bilateral lower extremity radiculopathy secondary to lumbar spine, and TDIU. The anal fissure claim was remanded because the VA examiner did not review crucial private colonoscopy and pathology reports. The lumbar spine claim was remanded for an addendum opinion to consider the ameliorative effects of medication, as required by recent caselaw. The radiculopathy claim was remanded due to a duty to assist error, as the record contained evidence of nerve root impingement that warranted further development. The TDIU claim was remanded as it was inextricably intertwined with the lumbar spine rating issue.

Rationale

Private medical opinion provided favorable nexus; Equipoise resolved in Veteran's favor; Secondary to service-connected lumbar spine disability

Full Decision Text

Citation Nr: A26040917
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210222-141340
DATE: April 30, 2026

ORDER

Entitlement to service connection for a left hip instability (left hip disability) as secondary to service-connected lumbar spine disability, is granted.

Entitlement to service connection for a right hip instability (right hip disability) as secondary to service-connected lumbar spine disability, is granted 

Entitlement to service connection for left knee patellofemoral syndrome (left knee disability) as secondary to service-connected lumbar spine disability, is granted.

Entitlement to service connection for right knee patellofemoral syndrome (right knee disability) as secondary to service-connected lumbar spine disability, is granted.

REMANDED

Entitlement to an initial compensable rating for service-connected anal fissures is remanded. 

Entitlement to a non-initial rating in excess of 10 percent for service-connected degenerative disc disease with spondylolisthesis and strain, lumbar spine (lumbar spine disability), is remanded. 

Entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected lumbar spine is remanded. 

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

FINDINGS OF FACT

1. The Veteran's left hip disability is at least as likely as not secondary to service-connected lumbar spine disability.

2. The Veteran's right hip disability is at least as likely as not secondary to service-connected lumbar spine disability.

3. The Veteran's left knee disability is at least as likely as not secondary to service-connected lumbar spine disability.

4. The Veteran's right knee disability is at least as likely as not secondary to service-connected lumbar spine disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for left hip disability have been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303.

2. The criteria for service connection for right hip disability have been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303.

3. The criteria for service connection for left knee disability have been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303.

4. The criteria for service connection for right knee disability have been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Department of Veterans Affairs (VA) rating decision on appeal was issued in December 2020 and February 2021 under The Veterans Appeals Improvement Modernization Act of 2017 (AMA) review system.  

In February 2021, the Veteran timely appealed this rating decision to the Board and selected the hearing lane for this claim.  Thus, the Board can only consider evidence submitted prior to the notification letters of the rating decisions on appeal and evidence provided within 90 days of the Veteran's Board hearing.  38 C.F.R. § 20.301.

In January 2025, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge.  The transcript of the hearing is of record. 

During the January 2025 Board hearing, the Veteran noted that his ability to work has been permanently impacted, in part, due to his back disability.  The Veteran stated that he cannot stand for long periods of time and cannot sit for long periods of time.  Thus, entitlement to TDIU is considered a part of the Veteran's claim for entitlement to an increased rating for his right knee disability.  See Rice v. Shinseki. 22 Vet. App. 453 (a TDIU request in which the disability is already service connected is not a separate claim for benefits but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400.  Given such, the Board has jurisdiction over this claim, and will be further explained below.

During the Board hearing, the Veteran's representative contends that a separate rating should have been awarded for radicular symptoms associated with the Veteran's back condition.  Specifically, the representative pointed to the October 23, 2020 treatment record that noted likely impingement of the L5 nerve root.  The Veteran also testified about lower extremity radicular symptoms at the hearing, to include ongoing problems with his legs.  

While the Veteran has not filed a formal claim for service connection for lower extremity
 is not a separate claim for benefits but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400.  Given such, the Board has jurisdiction over this claim, and will be further explained below.

During the Board hearing, the Veteran's representative contends that a separate rating should have been awarded for radicular symptoms associated with the Veteran's back condition.  Specifically, the representative pointed to the October 23, 2020 treatment record that noted likely impingement of the L5 nerve root.  The Veteran also testified about lower extremity radicular symptoms at the hearing, to include ongoing problems with his legs.  

While the Veteran has not filed a formal claim for service connection for lower extremity radiculopathy as secondary to lumbar spine disability, the Board finds that under Bailey v. Wilkie, because the Veteran contends that his lower extremity radiculopathy symptoms are a complication of a lumbar spine disability, a formal claim is not required.  See Bailey, 33 Vet. App. 188, (2021); (which requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal).  Moreover, under Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, associated neurologic abnormalities are to be included separately under the appropriate diagnostic code.  As such, the Board has jurisdiction over this issue and will be explained further in the remand section.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).  Service connection may be granted for any disease initially diagnosed after service 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).

Additionally, service connection may 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 C.F.R. § 3.310 (a).  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) proximately due to or the result of; or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

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1 - 2. Entitlement to service connection for bilateral hip disability is granted

3. - 4. Entitlement to service connection for patellofemoral syndrome of the right and left knee is granted

With respect to the Veteran's claim for entitlement to service connection for bilateral hips and bilateral knee disabilities, the Board finds that the evidence is in equipoise as to whether the Veteran's disabilities are secondary to his service-connected lumbar spine disability. 

As stated above, the first element of secondary service connection requires evidence of a current disorder.  

In a January 2021 VA Hip and Thigh Conditions DBQ, the VA examiner noted left and right hip strain.  In a January 2021 VA Knee and Lower Leg Conditions DBQ, the VA examiner noted left and right knee patellofemoral pain syndrome. Thus, the Veteran has satisfied the first element of secondary service connection. 

The second element of secondary service connection requires evidence of a service-connected disability.  The evidence of record reflects that the Veteran has been service connected for degenerative disc disease (lumbar spine disability).  See February 2021 VA Rating Decision Codesheet.  Thus, the Veteran has satisfied the second element of secondary service connection.

Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder.

Here, in a January 2021 VA Medical Opinion DBQ, the VA examiner opined that the Veteran's left knee disability is less likely than not secondary to his service-connected lumbar spine disability.  The examiner stated that "the conditions of bilateral patellofemoral syndrome, left knee (claimed as bilateral pat
 evidence of a service-connected disability.  The evidence of record reflects that the Veteran has been service connected for degenerative disc disease (lumbar spine disability).  See February 2021 VA Rating Decision Codesheet.  Thus, the Veteran has satisfied the second element of secondary service connection.

Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder.

Here, in a January 2021 VA Medical Opinion DBQ, the VA examiner opined that the Veteran's left knee disability is less likely than not secondary to his service-connected lumbar spine disability.  The examiner stated that "the conditions of bilateral patellofemoral syndrome, left knee (claimed as bilateral patellofemoral syndrome) and degenerative disc disease with spondylolistheses and strain, lumbar spine are not medically related."  The examiner stated that the left knee disability is a separate entity entirely from the degenerative disc disease with spondylolistheses and strain, lumbar spine and unrelated to it.  

In January 2021 VA Medical Opinion DBQ, the VA examiner opined that the Veteran's right knee disability is less likely than not secondary to his service-connected lumbar spine disability.  The examiner stated that "the conditions of bilateral patellofemoral syndrome, right knee (claimed as bilateral patellofemoral syndrome) and degenerative disc disease with spondylolistheses and strain, lumbar spine are not medically related."  The examiner noted that the right knee disability is a separate entity entirely from the degenerative disc disease with spondylolistheses and strain, lumbar spine and unrelated to it.  

In January 2021 VA Medical Opinion DBQ, the VA examiner opined that the Veteran's right hip disability is less likely than not secondary to his service-connected lumbar spine disability.  The examiner stated that "the conditions of right hip instability and degenerative disc disease with spondylolisthesis and strain, lumbar spine are not medically related."  "The right hip instability is a separate entity entirely from the degenerative disc disease with spondylolisthesis and strain, lumbar spine and unrelated to it."

In January 2021 VA Medical Opinion DBQ, the VA examiner opined that the Veteran's left hip disability is less likely than not secondary to his service-connected lumbar spine disability.  The examiner stated that "the conditions of left hip instability and degenerative disc disease with spondylolisthesis and strain, lumbar spine are not medically related."  "The left hip instability is a separate entity entirely from the degenerative disc disease with spondylolisthesis and strain, lumbar spine and unrelated to it."

Conversely, in an April 2023 private medical opinion, the private examiner opined that these disabilities are at least as likely as not secondary to service-connected lumbar spine disability.

The examiner explained that spondylolisthesis occurs when one vertebral body (spine bones) slips forward in relation to the vertebral body below.  The typical posture exhibited in this condition includes flexion of the hip and knees, backward tilting of the pelvis, and flattening of the normal lumbar lordosis (curving inward of the lower back).  The examiner further explained that as pursuant to this Veteran, his constant back pain makes it extremely difficult to walk any distance.  The examiner also noted gait issues in the medical records, referencing a November 2020 VA medical record that noted gait revealed guarded ambulation.  

The examiner went on to discuss the VA negative nexus opinions.  The private examiner noted that the VA examiner "failed to appreciate the interdependence of joints upon one another."  The private examiner explained that the relationship between the spine and hips, and knees is how well a person can hold themselves (posture) and how one can walk (gait).  The spine helps keep one stable and absorbs the shock from movement, so the workload shifts to the joints below when it is inadequate.  To alleviate the chronic lumbar pain, this Veteran changed his regular walk, forcing the hip and knee joints to move out of their normal rhythm and into new angles.  Given such, the private examiner concluded that it is at least as likely than not that this Veteran's current bilateral hip and knee conditions are secondarily service connected to the lumbar spine degenerative disc disease with spondylolisthesis and lumbar strain conditions.

Based on the foregoing, the Board finds that the private medical opinion, which links the Veteran's current bilateral hip and knee conditions to the Veteran's lumbar spine, supports a finding that the Veteran's current bilateral hip and knee conditions are at least as likely as not secondary to his service-connected lumbar spine disability.  Thus, the third element of secondary service connection is satisfied. 

The Board
 the hip and knee joints to move out of their normal rhythm and into new angles.  Given such, the private examiner concluded that it is at least as likely than not that this Veteran's current bilateral hip and knee conditions are secondarily service connected to the lumbar spine degenerative disc disease with spondylolisthesis and lumbar strain conditions.

Based on the foregoing, the Board finds that the private medical opinion, which links the Veteran's current bilateral hip and knee conditions to the Veteran's lumbar spine, supports a finding that the Veteran's current bilateral hip and knee conditions are at least as likely as not secondary to his service-connected lumbar spine disability.  Thus, the third element of secondary service connection is satisfied. 

The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise.  Given such, if the evidence for and against a claim is in equipoise, the claim will be granted.  See 38 U.S.C. § 5107. 

Accordingly, service connection is granted for a bilateral hip disability and patellofemoral syndrome of the right and left knee.

REASONS FOR REMAND

One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the Agency of Original Jurisdiction (AOJ) for further development instead of immediately deciding them directly.  Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error.  See 38 C.F.R. § 20.802 (a).

5. Entitlement to an initial compensable rating for service-connected anal fissures is remanded.

Here, the Board finds that the January 2021 VA Rectum and Anus Conditions Disability Benefits Questionnaire (DBQ) does not adequately reflect the severity of the Veteran's disability because the VA examiner did not have an opportunity to review the Veteran's February 2020 private colonoscopy and pathology reports. 

The Board notes that in a February 2021 VA rating decision, service connection for anal fissures was granted at 0 percent effective October 27, 2020 under DC 7332.  

In a January 2021 VA Rectum and Anus Conditions Disability Benefits Questionnaire (DBQ), the examiner noted rectal fissure.  The VA examiner noted that the Veteran had a colonoscopy in February 2020, but the report was unavailable.  Notably, the VA examiner found that the Veteran does not have hemorrhoids, anal/perianal, rectal stricture, impairment of rectal sphincter control, rectal prolapse, or pruritus ani associated with his condition.  However, the February 2020 Colonoscopy report, which was associated with the record after the VA examination occurred, reflects there is evidence of nonbleeding internal hemorrhoids.  Additionally, a February 2020 private pathology report was also associated with the finding based on biopsies taken during the colonoscopy.  

Given such, because the February 2021 VA examiner did not have a copy of these reports, which reflects a possible inconsistency with the findings of the February 2021 VA examination report, the Board finds that the February 2021 VA examination report is not adequate for rating purposes.  As such, the Board finds that VA's duty to assist requires an addendum opinion after the VA examiner has had an opportunity to consider the February 2020 Colonoscopy and the February 2020 Pathology reports. 

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6. Entitlement to a rating in excess of 10 percent for service-connected lumbar spine disability is remanded 

Unfortunately, the Board finds that based on a recent ruling in Ingram, the Board is required to remand this appeal for an addendum opinion that considers the ameliorative effects of medication when evaluating the Veteran's lumbar spine disability.

The United States Court of Appeals for Veterans Claims (Court) in Ingram held that in accordance with its holding in Jones, since the applicable diagnostic codes (DCs) and special musculoskeletal regulations do not reference medication, the Board must discount beneficial medication effects when assigning an evaluation.  The Court noted that in Jones it concluded that when relevant rating criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used.  See Ingram v. Collins, 23 Vet. App. 1798 (2025)  citing to Jones v. Shinseki, 26 Vet. App. 56 (2012). 

Here, the Board notes that the Veteran's lumbar spine disability is evaluated under DC 5242.  This diagnostic code does not explicitly contemplate a veteran using medication
keletal regulations do not reference medication, the Board must discount beneficial medication effects when assigning an evaluation.  The Court noted that in Jones it concluded that when relevant rating criteria do not explicitly contemplate a veteran using medication to allay symptoms of a service-connected disability, the Board, in assessing the severity of that disability for rating purposes, must discount the beneficial effects of medication used.  See Ingram v. Collins, 23 Vet. App. 1798 (2025)  citing to Jones v. Shinseki, 26 Vet. App. 56 (2012). 

Here, the Board notes that the Veteran's lumbar spine disability is evaluated under DC 5242.  This diagnostic code does not explicitly contemplate a veteran using medication to allay symptoms.  

Furthermore, the Board notes that the record reflects that the Veteran uses pain medication to alleviate his symptoms.  Specifically, in the December 2020 Back Conditions DBQ, the Veteran reported the use of prescription medication, methocarbamol, for his back symptoms.  

However, while the Veteran was provided with a VA examination in December 2020, wherein the VA examiner acknowledged the Veteran's use of medication to alleviate symptoms, the examiner did not indicate whether the evaluation of the Veteran's lumbar spine disability accounted for the effects of medication.  Given such, the record does not contain sufficient information to allow the Board to accurately evaluate the severity of the Veteran's disabilities without consideration of the alleviate effects of medication.  The Board is precluded from making medical findings as to the severity of the Veteran's disabilities without the use of medication.  See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (A Colvin violation results by making an inference from the evidentiary record that results in a medical determination, because the basis for that inference must be independent and must be cited).

Given such, due to a recent update in the binding caselaw in Ingram that is based on the Court's prior 2012 decision in Jones, the Board finds that it would not be a harmless error if it were to adjudicate the appeal at this juncture.  Additionally, as Ingram essentially reinforces the precedent established in Jones, the Board finds a pre-decisional duty to assist error, as the examination of record do not account for consideration of the alleviate effects of medication. 

Accordingly, a remand is necessary to determine the severity of the Veteran's lumbar spine disability while discounting the ameliorative effects of medication.

7. Entitlement to service connection for bilateral lower extremity radiculopathy as secondary to service-connected lumbar spine is remanded 

Here, the Boad finds that it was a pre-decisional duty to assist error when the AOJ did not determine whether the Veteran was entitled to a separate rating for radicular symptoms associated with his back. 

Here, in an October 23, 2020 VA MRI report, the results reflect with respect to nerve roots L4-L5, "there is a marked effacement of the lateral recesses with likely impingement on the bilateral L5 nerve root."  "Mild bilateral neural foraminal narrowing is noted."  

The Veteran's lumbar spine disability is rated under DC 5242, which is rating under the General Rating Formula for Diseases and Injures of the Spine.  Note (1) states that "evaluate any associated objective neurologic abnormalities...separately, under an appropriate diagnostic code." 

Here, as the pre-decisional record reflected evidence of a likely impingement of the bilateral L5 nerve root, the duty to assist required further development to ascertain whether a separate rating for bilateral lower extremities radiculopathy as secondary to service-connected lumbar spine disability is warranted.  

8. Entitlement to a TDIU is remanded 

Additionally, as to the TDIU claim, the Board finds that the claim of entitlement to TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the development directed on the other claim has been completed.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. With respect to the Veteran's anal fissures, request an addendum opinion from a qualified VA medical professional to ascertain the severity of his service-connected anal fissures.  The examiner should fully describe all symptomatology and functional deficits associated with this condition.  

The VA examiner must review and consider the findings of the February 2020 Colonoscopy report and the February 202
 completed.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. With respect to the Veteran's anal fissures, request an addendum opinion from a qualified VA medical professional to ascertain the severity of his service-connected anal fissures.  The examiner should fully describe all symptomatology and functional deficits associated with this condition.  

The VA examiner must review and consider the findings of the February 2020 Colonoscopy report and the February 2020 Pathology report.  

2. With respect to the Veteran's lumbar spine disability request an addendum opinion from a qualified VA medical professional to provide an opinion as to the severity of the Veteran's back condition absent the ameliorative effects of his medication, to include the use of methocarbamol.  If this examiner is not available, request an addendum opinion from another qualified medical professional.

The examiner is asked to quantify the extent to which the Veteran's use of pain medication ameliorates the functional impairment of his back condition.  If possible, please attempt to estimate in terms of degrees of range of motion.  If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished.  Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered.

3. Request an VA examination from a qualified medical processional to ascertain whether the Veteran's has bilateral lower extremity radiculopathy as secondary to his lumbar spine disability.  

In reaching this opinion, the VA examiner is asked to review the October 23, 2020 VA MRI report, which stated that there is a marked effacement of the lateral recesses with likely impingement on the bilateral L5 nerve root."  "Mild bilateral neural foraminal narrowing is noted."  

If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge.

Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Abdelbary, 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.