210510-159114
210510-159114
Board of Vet. App.May 28, 2021Background
- Veteran served honorably in the U.S. Army from December 1958 to December 1960 and seeks service connection for left knee pain, right knee pain, low back pain, and bilateral pes planus.
- August 2016 RO denied pes planus and degenerative spine claims; June 2019 RO denied left/right knee and low back claims; those denials became final before subsequent supplemental claims in 2020.
- The Veteran filed supplemental claims in 2020 and an AMA Board appeal (Direct Review lane) in May 2021; he asserted pes planus was present at induction/separation and that pes planus causes (or aggravated) his knee and low back conditions.
- The Board found Veteran’s October–November 2020 statements (new theory that pes planus is nexus and evidence of flat feet at induction/separation) to be new and relevant under 38 C.F.R. § 3.2501 and therefore ordered readjudication.
- The Board concluded the August 2016 VA medical opinion on pes planus was inadequate because it did not address whether pes planus was a congenital disease versus a congenital defect or otherwise address the presumption of soundness and aggravation.
- The Board remanded all four issues: ordered a VA addendum opinion (and exam if necessary) to determine the nature/etiology of pes planus, address presumption of soundness/aggravation, and opine whether knee/back disabilities are caused or aggravated by pes planus; then ordered readjudication and SSA/SSOC as needed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — left knee pain | Knee pain is secondary to bilateral pes planus; pes planus present at induction/separation | Prior RO: not related to service; earlier evidence not new/relevant | New and relevant evidence found; remanded for readjudication (intertwined with pes planus remand) |
| Service connection — right knee pain | Right knee secondary to pes planus; foot problems noted in service records | Prior RO denial: not related to service; no chronic foot treatment in service records | New and relevant evidence found; remanded for readjudication (intertwined) |
| Service connection — low back pain | Low back is secondary to pes planus present in service | Prior RO denial: evidence not new/material; not related to service | New and relevant evidence found; remanded for readjudication (intertwined) |
| Service connection — bilateral pes planus | Pes planus existed at induction/separation; caused subsequent knee/back issues | Prior RO: pes planus not shown to be incurred/caused by service; 2016 VA opinion found no chronic in-service condition | August 2016 opinion inadequate for not addressing congenital disease vs defect or presumption of soundness; remanded for VA addendum exam/opinion to determine nature, aggravation, and secondary causation |
Key Cases Cited
- Quirin v. Shinseki, 22 Vet. App. 390 (2009) (requires Board to address whether a congenital condition is a disease or defect and to consider presumption of soundness and aggravation)
- Monroe v. Brown, 4 Vet. App. 513 (1993) (distinguishes congenital disease from congenital defect in service-connection analysis)
- Winn v. Brown, 8 Vet. App. 510 (1996) (holds presumption of soundness does not apply to congenital defects)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (claims that are inextricably intertwined should not be decided piecemeal; related claims remanded together)