Forum Experts Input Requested - 3rd Time Around

[Vetrequest]

I’m in my 50’s.  This is still foreign to me, however, learning something new every day through this forum.

Of course, when I was in and left the military no one told me anything the about VA or what an in-service event or aggravation, etc. meant or what I could do about it.

I have been able to acquire 60% disability so far on my own. 

20% Left knee joint arthritis

50% Left knee osteoarthritis, limitation of extension

0% Left knee Scar

10% Bilateral Tinnitus

Hearing Loss – allowed one-year clock to expire without pursuing again -simply put, I didn’t know better at the time.  I assumed if the VA says “no” then that was it) 

Sort version of background information;

I injured my left knee when I was in the military in the early 1990’s.  It was documented in my service medical records.  So, for about fourteen years after I left the military my left knee got so bad, I had to have surgery.  An orthopedic surgeon told me and wrote in my private medical records that my left knee was bone on bone.  My left knee has been bone on bone for over two decades.  My left knee was eventually service connected.

After limping (antalgic gait) as it has been described by my primary physician and physical therapist for over two decades, my opposite knee, right knee has finally showing signs of wear and tear from having to absorb my weight as I shifted everything to my right side. 

 My right knee has been diagnosed as: 

Mild medial compartment osteoarthritis.

A degenerative enthesophyte at the quadriceps tendon attachment to the patella.

Tearing of the medial meniscal root with associated extrusion of the meniscal body.

Moderate-sized joint effusion and moderate synovitis.

Moderate-sized Baker’s cyst with distal leakage.

 I initially filed a claim for my right knee as secondary to my service-connected left knee.  I only submitted Xrays, MRI and orthopedic surgeon and private physician (a PA-C) notes which were in my private medical records. 

My first right knee claim was denied. 

Reason for Decision:

(First Denial)

quote:

Service connection for right knee arthritis with meniscal strain as secondary to the service-connected disability of knee joint osteoarthritis, left knee (claim as left knee condition).

 Service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby.  The evidence does not show that right knee arthritis with meniscal strain is related to the service-connected condition of knee joint osteoarthritis, left knee (claimed as left knee condition), nor is there any evidence of this disability during military service.

 The medical opinion we received from the VA Medical Center was more persuasive than your private physician’s opinion because it was based on a thorough review of your relevant military and personal history and contained a more convincing rationale.

 Rational

The veteran’s right knee condition is not due to or caused by left knee condition.  Although there is a common misconception that injury to a weightbearing joints can somehow cause secondary injury to contralateral weightbearing joints there is no medical evidence that shows that this is the case and generally speaking injury to a weightbearing joints results in an overall reduction of weightbearing activity because the injured joint no longer tolerates it.  Individuals may argue that because of pain in the injured joint the opposite joint is somehow overused by shifting weight from the injured side to the opposite side but again, there is no medical evidence that supports such concept and, in fact, reduce overall weightbearing often has a protective effect on other joints.  In rare instances, extremely advanced or sever degenerative or severe degenerative joint disease of weightbearing joints may alter gait and weightbearing as to have an effect on other joints but this generally appears in the form of imbalance same side joints as the gait is altered to protect the injured side with reduced excursion (the antalgic gait) and associated secondary muscle contracture and use pain (but not specifically degenerative joint disease) of joints above/below the injured joint.  Such is not the case in the veteran. 

The veteran’s right knee condition is unrelated to the SC left knee condition and has occurred as a consequence of his weigh bearing activities over the course of his life. 

 

So, after reading this forum, I knew I needed an IMO.  So, I reached out to Dr. David Anaise who has been referenced many times throughout this forum.  Dr. Anaise provided me with an IMO.  I submitted a second claim for my right knee with Dr. Anaise IMO.   My second right knee claim was denied.               

Reason for Decision:

(Second Denial)

quote:

Service connection for right knee arthritis with meniscal strain as secondary to the service-connected disability of left knee joint osteoarthritis. 

We previously denied your claim for right knee arthritis with meniscal strain as secondary to the left knee joint osteoarthritis as the evidence did not show your right knee arthritis was caused by your service-connected left knee.  A claimant may file a supplemental claim by submitting or identifying new and relevant evidence.  New evidence is evidence not previously part of the actual record before the adjudicators.  Relevant evidence means evidence that tends to prove or disprove a matter at issue in a claim.  (38 CFR 3.2501) In support of your claim, new relevant evidence has been received and your claim is now reconsidered.   

We considered the evidence provided by Dr. Anaise, C. Brinton, you and your spouse.  The medical opinion we received from the VA Medical Center was more persuasive than your private physician’s opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. (38 CFR 4.6)  

Based on a review of all available evidence our prior decision is unchanged.  

(Disclaimer: I simply cut & paste the VA examiner’s rational as written.  Misspellings, punctuations, etc. are the VA examiners)

Rational 

Dr David Anaise MD, JD ^E s advocacy for our veterans is appreciated. 

Review of much of the literature quoted in Dr Anaise ^l s opinion reveals studies performed on various small animals involving transecting muscles affecting motor strength and movements and/or transect ion of knee ACLs and/or patella tendons which grossly affect the opposite extremity stability-wise as well as weightbearing biomechanics, and many of the study conclusions note that their findings can only be extrapolated to humans with speculation . The footnoted study by Bhargava et al was a small study (20 subj ects) that found that gaits in otherwise asymptomatic individuals at 6 months after hip replacement (THA) was not the same as "normal" (ie asymptomatic controls without recent TEA) . Although the prior animal studies are referenced, i t does not make the conclusion that gait changes from unilateral total hip replacement result in opposite limb DJD but rather makes recommendations Cc preserve the longevity of the prosthetic hip .   The Morgenroth et al 2014 article (from which Dr Anaise appears to have reproduced his dynamic loading paragraph nearly word for word) is a study in which 28 generally asymptomatic subj ects (averge age 56, none with knee pain or other knee issues) had dynamic loading studies performed to analyze their otherwise normal gait/ weightbearing along with MRI imaging to assess for MRI changes consistent with otherwise undetectable DOD. Their study did indeed find an association between dynamic loading rate and degenerative changes in the medial knee joint, they go on to note that this demonstration of association between variables does not allow for definitive conclusions regarding causation and that they can not rule out that osteoarthritis subsequently found on MRI in the knee joint that they are testing isnt in fact causing the gait/dynamic load findings associated with that joint ie a chicken and egg scenario. Interestingly, that study included 14 subjects who had unilateral transfemoral amputations (average time of amputation 32 years prior to study) for the purpose of ensuring a range of degenerative changes based on the authors' impression that amputees are a population with a higher prevalence of knee osteoarthritis thought to be related primarily to mechanical causes.      .however this study did not reveal significantly different biomechanical loading variable outcome measures between amputees and non-amputees, and amputee sub} ects in this study demonstrated a distribution of medial and lateral tibiofemoral degenerative changes similar to that exhibited in the general population which is not supportive of the contention of changes in one lower extremity causing arthritis in the other . 

In contrast, from the American Medical Association (AMA) 

AMA Guides to the Evaluation of Disease and Injury Causation, 2^nd Edition; American Medical Association, 2014.  

Chapter 33: Evaluating Causation of Favoring for the Opposite

757 :

"The assumption that injury to one limb (upper or lower) can result in overuse condition in the opposite limb is widespread but unproved, Lay people and some physicians believe that pain or impairment in one limb can stress the other and produce symptoms in the uninjured Iimb. This belief has led to the concept termed favoring. The impact of these speculative concepts is pervasive in spite of quality scientific investigations suggesting otherwise. It is important that popular conceptions (beliefs) of causation be kept in line with the best available scientific evidence.  This Chapter provides expanded inversions of 2 articles published in the guides newsletter: (Evaluating Causation for the Opposite Lower Limb ^Il  (May/June 2012) and "Evaluating Causation for the Opposite Upper Limb (July/August^l' 2012)• 

Page 769   "causation analysis should always be based on current scientific evidence and the facts of a specific case. However, certain beliefs have evolved that lack scientific basis . One unsupportable concept is that favoring one lower extremity will often result in injury or illness of the opposite lower I iimb. ^Il 

"Review of the medical literature reve@ls no generally accepted studies that support such a causal relationship, nor is there any reasonable find scientific logic therefore . In fact, the literature available, most notably in editorial, " Can Favoring One Leg Damage the Other? , " by Ian Harrington ,

M.D. and Robert Harris M.D. refutes the reported cause and effect relationship . They explain : "Lay people, and many doctors as well, believe that pain or disability in one leg can stress the other one and produce symptoms and it.

We believe that there is no scientific basis for such reasoning. The mechanics of 1imping are poorly documented in the orthopedic literature and we have found few references to the effect of a limp on the other leg . 

To clarify the position for lay adjudicators and the physicians who advise them we reviewed the mechanics of the 2 basic limps: Paralytic and antalgic . In the former the muscles of the weak leg are not strong enough to balance body weight and the patient walks with a characteristic lurching gait . The head and arm are displaced toward the affected side moving the body center of gravity directly over the weak leg and thereby reducing the muscle force required to balance body weight . In the antalgic gait the patient shortens the stance phase by adopting a similar Trendelenburg lurch . 

It may seem logical that maneuvers designed to lessen the i cad on one leg must increase that on the other, but there is no evidence to support this . 

Harrington and Harris reference gait studies using force plates cn patients with long-standing poliomyelitis who had a paralytic and short leg limp that confirmed the force transmitted in the affected lower extremity was reduced , but the force in the opposite limb was the same as in normal individuals . Similar findings were seen with an antalgic gait resulting from arthritis . 

They also noted studies revealing that the magnitude of hip force in normal individuals varies with body weight, stride length and walking speed . Because someone with the lower limb pain typically walks slower than an asymptomatic person, shortens his her stride length, and reports the inj ury or illness of the originally of all lower limb resulted in a marked decrease in weightbearing activity (steps taken each day) , both the forces and number of loading cycles on the unaffected limb are likely to be less, not higher , than before the original illness or injury. 

In 2005, Harrington provided a discussion paper titled ^l ' symptoms in the opposite or uninjured leg ^ll prepared for the workplace safety and insurance appeals Tribunal in the Province of Ontario, which concluded :

There is no clear evidence to suggest that an injury to one lcwer extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial cr complete paralysis of the damaged leg, and/or shortening of the injured Icwer extremity resulting in a limb length discrepancy of more than 4 or 5 cm so that the individual gait pattern has been altered to the extent that clinically there is an obvious lurching type gait (a significant limp) .

In order for this type of gait to have impact on the opposite or uninjured leg , it is likely that the abnormal gait or limp would need to be present over an extended period of time-years . A temporary abnormality in gait, e.g. , a limp over a relatively short period of time of weeks or months is unlikely Cc have any effect on the opposite leg . The use of the cast, cane and crutches is also unlikely to have any major impact on the stress born by the uninj ured limb.)

The gait changes described on the AMA reference which would be required to result in an opposite limb condition are so severe as to preclude standing or walking more then short periods of time. Episodes of exacerbated left knee pain and issues are reported by veteran and buddy statements and are quite possible but a chronic severe lurching limp is not supported by either available medical observations or initial VAE examinations . Cn examination the veteran reported that he continued to play basketball and other sports up until 10 years ago ie age 4C or 41 (or nearly 15 years after one buddy letter reported first observing the veteran limping and putting weight "gingerly" on the left knee)  These activities are likely associated with much more severe dynamic loading measures then the aforementioned biomechnancial gait studies .  

It is this examiners medical opinion that the veteran right knee degenerative conditions are most likely related to genetic propensity, aging, and wear and tear from activities and not significantly caused oz- aggravated by his SC left knee condition. 

My VSO told me this was the first time he had come across a VA examiner taking the time and putting so much effort into attacking an IMO.  Reading the VA examiner’s first sentence (Dr. David Anaise MD, JD ^E s advocacy for our veterans is appreciated.”) I believe the VA examiner may have heard of or had dealt with Dr. Anaise IMO’s before and had a rebuttal ready for when his name crossed his desk. 

I am still within my one-year time limit in regards to this claim. 

Dr. Anaise agreed to write a rebuttal to the VA’s rational for denying my claim for my right knee arthritis with meniscal strain as secondary to my service-connected left knee.

My question(s):

1.       Should I get a second IME/IMO to accompany Dr. Anaise’s rebuttal?

2.       I believe there are favorable decisions issued by the BVA on this specific issue, just have to locate them.  Are we allowed to submit those BVA decisions to show the BVA has decided this specific issue in the past?  If anyone knows of any BVA decisions that address this point, please point them out to me.

3.       Are we allowed to submit academic studies, research papers, etc. that support our claims?

4.       What do I write when I submit this for a third time or submit any claim for that matter?  I believe my VSO simply site the attached documents that are submitted.  Should I site and point to specific areas or sections of my rebuttal documents (IME/IMO nexus letter(s), BVA decisions and studies, etc.?

As I’ve said before, I am an amateur compared to the experts in this forum who have been through the fire and came out the other end with a wealth of knowledge.  I’m sure I’ve made mistakes in the past, however, I’m trying to get it right this time.

Any help and all suggestions are welcomed.    

 

 

[broncovet]

Great post, and great questions!!!

   Its unclear to me if these were BVA denials, SCL, HLR, etc. etc.  

   If they are BVA denials I (and they are real fresh, say within 60 days), then consider hiring an attorney at the CAVC.  Did you know you can do that at no cost to you?  Most attorney's LOOOOVE BVA denials because the CAVC is super fast compared to BVA and, EAJA normally pays the fees.  So begin contacting attorney's now, if this was a BVA denial.  You can start with DR. David Anise, I think he is an attorney and md, one of the few.  There are other good choices, too.  CCK law, Chris Attig, Hill and Pontoon, Woods and Woods to name a few.  It costs nothing to have them review it!!

    If they are SCL, DRO, or VARO denials, then you still want to appeal them, by filing a NOD.  I suggest you ask Dr. Anise if he thinks another IMO is needed.  He may even be willing to provide one!!!!!!!!!

    You asked:

 Should I get a second IME/IMO to accompany Dr. Anaise’s rebuttal?   Maybe.  Ask him, and read what I posted, above.  

2.       I believe there are favorable decisions issued by the BVA on this specific issue, just have to locate them.  Are we allowed to submit those BVA decisions to show the BVA has decided this specific issue in the past?  If anyone knows of any BVA decisions that address this point, please point them out to me.   I prefer to cite the CAVC case law that BVA decisions cite, not the BVA decisions themselves, as BVA decisions are non predential.  This is why I like to cite precedential decisions which are CAVC cases which are "panel" or "en banc".  Single judge CAVC decisions are also non precedential.  All Federal Circuit decisions are precedential.  

3.       Are we allowed to submit academic studies, research papers, etc. that support our claims?   YES, but if 40 people in the study showed knee a messed up knee B, that does not necessarily mean YOUR knee was messed up, only a doctor can opine this on you.  Those in the study did not apply for benefits.  It may not help but it should not hurt.  

4.       What do I write when I submit this for a third time or submit any claim for that matter?  I believe my VSO simply site the attached documents that are submitted.  Should I site and point to specific areas or sections of my rebuttal documents (IME/IMO nexus letter(s), BVA decisions and studies, etc.?   YES.  When I file a NOD, I carefully try to refute the decisions "reasons and bases"...not with MY opinion, but with case law, OGC  opinions, VBM citations, M21,  38 CFR, your doctor exams, etc.  I do that when I file the NOD.  

As I’ve said before, I am an amateur compared to the experts in this forum who have been through the fire and came out the other end with a wealth of knowledge.  I’m sure I’ve made mistakes in the past, however, I’m trying to get it right this time.

YOU are on the right path and you came to the right place.  Answer my question about whether or not it was a BVA denial.  That is important.  Its my opinion you probably "will" need to go to the BVA..even tho it takes forever...unless you have already been there, and then you need an attorney for the cavc.  

[Vetrequest]

I apologize, I should have been clear.  I went to the C&P exam both times and received a denial afterwards.

[broncovet]

My question "Is this a BOARD of Veterans Appeals" denial or a VARO denial?  There is a big difference.  It appears to be a RO denial, not BVA.  

[Vetrequest]

Yes an Ratings Officer's Denial.

[Guest]

I agree with bronco. These sounds like local VARO decisions have you ever filed an appeal or appealed to the CAVC (Appeals Courts).

[broncovet]

Pete is correct.  There is an appeal procedure, which is rather messed up, now with RAMP, aka AMA.  

It appears you can just keep appealing HLR and SCL over and over...but with the same results.  

Res Judicata prevents you from just appealing over and over:

 

res ju·di·ca·ta

/ˌrēz ˌjo͞odiˈkätə,ˌrās/

noun

LAW

 

1. a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

    

   In other words you need to appeal to a higher (court), which is the BVA.  Yes, I know it takes longer than HLR or SCL.  But, it sounds like you have "been there, done that".  

    

   You see, these GS11 rating specialists dont want to sign a document that nets you 100,000 in retro.  Instead you need to get your claim TO A REAL BVA JUDGE, and not to "another GS11 with more experience in denying Vets".  

   My advice?  Appeal to the BVA, if you have not already, if you have appealed to the BVA and been denied, then you need to appeal to the CAVC..the next in line.  Lastly, if you failed at the CAVC it goes to the Federal Circuit.  

   And the end of the line is the US Supreme Court.  There have been a few Vets appeals make it to the Supreme Court.