Case A26036582

J. KIRBY · 2026 · Case ID: A26036582

MIXED

Summary

The Veteran, who served from September 1980 to September 1986, appealed the denial of a rating in excess of 50 percent for bilateral pes planus, and sought service connection for a right knee disability as secondary to his service-connected pes planus. The Veteran also appealed the denial of service connection for a neck disability and a right leg disability, both claimed as secondary to his pes planus. During a Board hearing on January 24, 2025, the Veteran withdrew the appeal for the increased rating for bilateral pes planus, which the Board dismissed. For the right knee disability, the Board found the evidence evenly balanced between the Veteran's private medical opinion, which linked the knee condition to his altered gait caused by pes planus, and the VA examiner's opinion, which found less than a likelihood of service connection. Applying the benefit of the doubt, service connection for the right knee disability was granted. The appeals for the neck and right leg disabilities were remanded due to inadequate VA medical opinions. The prior opinions were unfavorable regarding causation and did not address aggravation, which are separate inquiries for secondary service connection. The Board instructed the examiners to address both causation and aggravation, providing detailed rationale.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210115-132831

Full Decision Text

Citation Nr: A26036582
Decision Date: 04/20/26 Archive Date: 04/20/26

DOCKET NO. 210115-132831
DATE: April 20, 2026

ORDER

The appeal for entitlement to a rating in excess of 50 percent for bilateral pes planus is dismissed.

Entitlement to service connection for a right knee disability as secondary to service-connected bilateral pes planus, is granted.

REMANDED

Entitlement to service connection for a neck disability, to include as secondary to service-connected bilateral pes planus, is remanded.

Entitlement to service connection for a right leg disability, to include as secondary to service-connected bilateral pes planus, is remanded.

FINDINGS OF FACT

1. On the record at the January 2025 Board?hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for entitlement to a rating in excess of 50 percent for bilateral pes planus.

2. The Veteran's right knee disability is due to his service-connected bilateral pes planus.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for entitlement to a rating in excess of 50 percent for bilateral pes planus by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for right knee disability as secondary to service-connected bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from?September 1980 to September 1986.

In the January 15, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 24, 2025.

Therefore, the Board may only consider the evidence of record at the time of the September 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran 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.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to a higher rating for bilateral pes planus and entitlement to service connection for a right knee disability, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the claims of entitlement to service connection for a right leg disability and a neck disability for further development, this additional evidence will be considered by the AOJ in the adjudication of those claims.

Withdrawal

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id.

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25?Vet. App.?45, 57 (2011).

On the record at the January 24, 2025, hearing, the
. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id.

On the record at the January 24, 2025, hearing, the Veteran withdrew the issue of entitlement to a rating in excess of 50 percent for bilateral pes planus. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue, and it is dismissed.

Entitlement to service connection for a right knee disability as secondary to service-connected bilateral pes planus.

The Veteran asserts that his right knee disability is secondary to his service-connected bilateral pes planus with left anterior os calcis spur and rupture of the left Achillies tendon and gastrocnemius.

The September 2020 VA contract examination showed the Veteran has a current diagnosis of right knee meniscal tear and right knee anterior cruciate ligament tear. The VA contract examiner opined that it was less likely than not that the Veteran's right knee disabilities were proximately due to or the result of the Veteran's service-connected pes planus. The rationale was that there was no clear evidence in their review of the medical literature that suggested that an injury to one joint would have any significant impact on another opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in a length discrepancy of more than 5 centimeters so that the individual's gait pattern has been altered to the extent that clinically there was an obvious Trendelenburg gait. The examiner did not address aggravation.

In a March 2020 letter, the Veteran's private provider noted that the Veteran's flat feet severely altered his biomechanical gait.

In a March 2020 private opinion letter, the private provider noted that the Veteran's "pain in his feet has led to an alteration of his gait and a change in how the forces of weight-bearing are accommodated by his foot, ankle and knee complex." Based on review of the Veteran's medical records, the private provider opined that it appeared more likely than not that the Veteran's bilateral knee condition was casually and directly related to his altered gait pattern, which is causally related to his service-connected foot conditions.

Upon review of the record, the Board finds the evidence to be at least evenly balanced as to whether the Veteran's current right knee disability is secondary to his service-connected bilateral pes planus. Taken together, the private medical evidence of record reflects that the Veteran's service-connected bilateral pes planus altered the Veteran's gait, which in turn led to the Veteran's right knee disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted.

REASONS FOR REMAND

Entitlement to service connection for a neck disability, to include as secondary to service-connected bilateral pes planus.

Entitlement to service connection for a right leg disability, to include as secondary to service-connected bilateral pes planus.

The appeals for service connection for?a neck disability and for a right leg disability, both as secondary to service-connected bilateral pes planus, are remanded to correct a duty to?assist?error that occurred prior to the September 2020?rating decision. Specifically, the August 2020 (neck) and September 2020 (right leg) VA contract examination opinions are inadequate.??

The August 2020 opinion was unfavorable as to whether the Veteran's neck disability was caused by his service-connected bilateral pes planus. However, that opinion did not address aggravation. Similarly, the September 2020 opinion was unfavorable as to whether the Veteran's right leg disability was caused by his service-connected bilateral pes planus. However, that opinion also did not address aggravation.

The questions of causation and aggravation in the context of secondary service connection are separate inquiries. El-Amin v. Shinseki, 26?Vet. App.?136, 140 (2013).? The AOJ's failure to obtain adequate opinions with respect to these two claims constitutes a pre-decisional duty to assist error requiring
The August 2020 opinion was unfavorable as to whether the Veteran's neck disability was caused by his service-connected bilateral pes planus. However, that opinion did not address aggravation. Similarly, the September 2020 opinion was unfavorable as to whether the Veteran's right leg disability was caused by his service-connected bilateral pes planus. However, that opinion also did not address aggravation.

The matters are REMANDED for the following action:

1. Obtain an opinion from?a qualified medical provider, with?in-person or telehealth examination?if?deemed necessary by the examiner, on the?likely etiology of?the Veteran's neck disability.? Copies of all pertinent records should be made available to the examiner for review.??Based on the review?of?the record (and examination if needed), the examiner should answer the following:??????

Is it at least as likely as not (i.e.,?likelihood approximately balanced or nearly equal, if not higher) that the Veteran's?neck disability?is (i) caused (direct result) or (ii) aggravated (any increase in disability) by?the Veteran's service-connected?bilateral pes planus, to include his altered gait? Why or why not????

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as?appropriate. If an opinion cannot be provided, the examiner should?indicate?why.

2. Obtain an opinion from?a qualified medical provider, with?in-person or telehealth examination?if?deemed necessary by the examiner, on the?likely etiology of?the Veteran's right leg disability.? Copies of all pertinent records should be made available to the examiner for review.??Based on the review?of?the record (and examination if needed), the examiner should answer the following:??????

Is it at least as likely as not (i.e.,?likelihood approximately balanced or nearly equal, if not higher) that the right leg disability?is (i) caused (direct result) or (ii) aggravated (any increase in disability) by?the Veteran's service-connected?bilateral pes planus, to include his altered gait? Why or why not????

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J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Struening, Eric

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.

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