Citation Nr: 0105415 Decision Date: 02/22/01 Archive Date: 03/02/01 DOCKET NO. 99-25 356 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUE Entitlement to service connection for aggravation of degenerative and discogenic disease of the lumbar spine with associated bilateral leg radiculopathy, as secondary to service-connected bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from December 1942 to August 1943. The RO has characterized the issue on appeal as entitlement to service connection for advanced degenerative and discogenic disease of the spine with associated radiculopathy of the nerve roots and entitlement to service connection for aggravation of chronic radiculopathy of the legs as secondary to the service connected disability of flat feet. Upon review of the evidence, the Board of Veterans' Appeals (Board) has consolidated and recharacterized the issue as reflected on the title page to more accurately reflect the veteran's contentions and the nature of his disabilities and to avoid any potential duplication of ratings in the future. The Board notes two potential procedural difficulties. In July 2000, the veteran submitted additional medical evidence and written argument directly to the Board. This evidence and argument has not been reviewed by the RO in conjunction with a decision on the merits of the veteran's claim. Additionally, the veteran had requested the opportunity to present testimony in support of his claim before an RO hearing officer. Such a hearing was scheduled, but the letter notifying the veteran of the scheduled time and date was returned as undeliverable by the postal service. In light of the disposition below, however, the Board holds that these procedural flaws have not resulted in any prejudice to the veteran in the adjudication of his claim. We will therefore proceed with our review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Bilateral tarsal tunnel syndrome associated with bilateral pes planus caused biomechanical stress in the veteran's lower back, which aggravated degenerative joint disease and degenerative disc disease, to include radiculopathy of the lower lumbar spine. CONCLUSION OF LAW Service connection for that portion of the veteran's lumbar spine degenerative joint disease and degenerative disc disease with radiculopathy which has been caused by aggravation from bilateral pes planus is warranted. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for bilateral pes planus was granted by rating decision of February 1946. A 10 percent disability rating was assigned effective April 1944. In August 1959, the basis of the grant was changed to reflect aggravation of pre-existing bilateral pes planus in service, rather than direct incurrence. The disability rating of 10 percent was not altered, however. Based upon evidence showing an increase in the level of impairment arising from bilateral pes planus, the disability rating was raised to 30 percent effective in February 1994. The veteran now contends that service-connected bilateral pes planus has aggravated nonservice-connected degenerative disc disease and lumbar spine pathology, to include painful radiculopathy to his legs. Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for the aggravation of a pre-existing disease during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Medical records contained in the file demonstrate that the veteran currently suffers from degenerative disc disease and degenerative joint disease in his lumbar spine, in addition to bilateral pes planus, which is characterized as severe in nature under VA rating criteria. A statement dated in October 1999 from a private physician who identified himself as a Diplomate of the American Board of Neurology and Psychiatry, demonstrates that the veteran's lumbar spine pathology, including radiculopathy, has been aggravated by his bilateral pes planus: The [veteran], however does have bilateral tarsal tunnel syndrome that was well documented and associated with the pes planus deformity. This does cause biomechanical stress in the lower back in that there is not a stable platform mechanically for the [veteran] to ambulate which clearly can aggravate cause of progressive degeneration of the lower lumbar spine with subsequent discogenic disease and radiculopathy. The claims file does not contain any medical evidence tending to contradict this opinion. Upon review, the Board concludes that this fact pattern represents a classic Allen situation, wherein the aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service- connected condition. In this case, the aggravation of nonservice-connected lumbar spine pathology is shown to be proximately due to service-connected bilateral pes planus, as the pes planus has caused biomechanical stress in the veteran's lumbar spine over many years, resulting in the aggravation of co-existing and otherwise unrelated lumbar spine pathology. Thus, the Board holds that service connection for that portion of the veteran's lumbar spine degenerative joint disease and degenerative disc disease with radiculopathy which has been caused by aggravation from bilateral pes planus is warranted. The beenfit of the doubt is resolved in the veteran's favor. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310; Allen. ORDER Service connection for aggravation of degenerative and discogenic disease of the lumbar spine with associated bilateral leg radiculopathy, as secondary to service- connected bilateral pes planus, is granted. WAYNE M. BRAEUER Member, Board of Veterans' Appeals