Citation Nr: 21065050 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-37 698 DATE: October 22, 2021 REMANDED Entitlement to service connection for flatfoot, left, and flatfoot, right, is remanded. REASONS FOR REMAND The Veteran had active service from January 2003 to October 2003; from July 2004 to October 2007; from October 2007 to October 2008; and from May 2009 to May 2011. She is a Veteran of the Gulf War Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of the hearing has been associated with the file. 1. Entitlement to service connection for flatfoot, left, and flatfoot, right, is remanded. The Veteran filed a claim for service connection for flatfoot, left and flatfoot, right, that was received on July 25, 2016. The Veteran was afforded a VA examination in May 2017. The examiner found that the claimed bilateral pes planus, which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by military service. The RO denied the claim for flatfoot, left and flatfoot, right, in a June 2017 rating decision. The Veteran filed a Notice of Disagreement on June 30, 2017 in which she disagreed with the May 2017 VA examiner's opinion and claimed the examination was inadequate and incomplete. On July 7, 2017, a letter was sent to the Veteran notifying the Veteran that VA received her Notice of Disagreement (NOD) on June 30, 2017 however VA "could not identify the issues she intended to appeal." On July 14, 2007, the Veteran called VA in response to the letter and the associated Report of General Information indicated that during the call the Veteran clarified that her appeal is for service connection of flatfoot, right, "decided" in the June 23, 2017 Notification Letter. In June 2018, VA called the Veteran, who had requested a phone call on her NOD. The VA representative documented the following response to the Veteran: I explained we had requested clarification of her appeal soon after she submitted it and she had responded with a phone call indicating her disagreement was with the right flat foot. I told her the left foot is part of the claim with the Houston office but her claim for the right foot fallen arch is part of the pending appeal for flat foot because they are the same condition. The Veteran's Form 9 Appeal was received on July 11, 2018. The Veteran stated in part: "I am appealing the fact that pes planus (flat foot) plantar fasciitis was not aggravated beyond its natural progression by military service." She further stated that her feet have gotten progressively worse since 1990, aggravated by military service. She reported wearing boots for long periods of time standing on her feet. She indicated that she was having problems with her feet. In a second Form 9, the Veteran requested a hearing. The associated cover letter from her representative notes that her appeal is for entitlement to service connection for flatfoot, right, also claimed as fallen arch. The Veteran's Form 8 Certification of Appeal notes the June 23, 2017 rating decision, which related to flatfoot, left and flatfoot, right and the June 2018 Statement of the Case, which described the issue as flatfoot, right, but addressed the evidence of bilateral pes planus. The Board notes that the June 23, 2017 Notification Letter was sent to notify the Veteran of the June 2017 rating decision that denied service connection for both flatfoot, left and flatfoot, right. The Board further notes that the Veteran's NOD references her disagreement with the May 2017 VA examination which was for bilateral pes planus (claimed as flatfoot, left and flatfoot, right). The Board finds that the Veteran's July 7, 2017 response, intended to clarify the issues she was appealing, did not indicate that she was withdrawing her appeal for flatfoot, left. In addition, the Board finds VA's response to the Veteran's June 2018 query about her appeal could reasonably have been construed by the Veteran to indicate that both flatfoot, left and flatfoot, right, were on appeal. During the course of the April 2021 hearing, the ALJ pointed out that the appeal of the issue of entitlement to service connection has only been perfected as to the right flat foot claimed as fallen arches. After discussion with the Veteran and her representative, it was determined that the Veteran's original NOD referred to both flat feet. Notwithstanding commemoration of a phone conversation during which the Veteran reportedly confirmed that her appeal is limited to the right flat foot, the Veteran asserted that she never knowingly intended to withdraw her left flat foot appeal and always intended to appeal both feet. Therefore, to avoid unnecessary additional use of VA resources if the left foot issue would later require a second hearing, testimony was taken at the hearing as to both feet. As the Veteran did not express an intent to withdraw her appeal for flatfoot, left, the Veteran's claim will therefore be remanded for the issuance of an SOC and filing of a Form 9 appeal. Manlincon v. West, 12 Vet. App. 238 (1999). As the hearing addressed both entitlement to service connection for flatfoot, left, and flatfoot, right, and the issues are inextricably intertwined, both issues will be remanded. The matters are REMANDED for the following action: The AOJ should issue a Statement of the Case regarding the issue of entitlement to service connection for flatfoot, left. Thereafter, should the Veteran submit a timely substantive appeal, the AOJ should conduct any additional development deemed warranted as to that claim, and then readjudicate both claims. If the benefits sought on appeal are still denied, a supplemental statement of the case should be issued with respect to both claims, with appropriate notice to the Veteran and her representative, and the case should then be returned to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, Associate 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.