Citation Nr: 21068147 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-00 063 DATE: November 9, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (lumbar spine condition), secondary to service-connected pes planus is granted. FINDING OF FACT The Veteran's lumbar spine condition is proximately due to his service-connected pes planus. CONCLUSION OF LAW The criteria for service connection for lumbar spine condition as secondary to 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 August 1963 to August 1967. The claim was most recently before the Board in July 2021. Additional, relevant evidence has been added to the record since the issuance of the supplemental statement of the case in September 2021. As the Board is granting the claim, a waiver of Agency of Original Jurisdiction (AOJ) consideration of the new evidence is unnecessary. Entitlement to service connection for a back disability. The Veteran contends that his lumbar spine disability is secondary to his service-connected pes planus. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The VA and private medical evidence of record show the Veteran has a current disability of lumbar spine degenerative disc disease, and a private examiner opined that it is at least as likely as not proximately due to or the result of his service-connected pes planus. The Board notes that the most recent September 2021 VA examination and medical opinion finds that it is less likely than not that the Veteran's lumbar spine disability is caused or aggravated by service-connected pes planus. However, the Board finds that this opinion is inadequate as the aggravation opinion relies on the incorrect standard, beyond natural progression instead of any increase in disability. Furthermore, the previous VA medical opinions of record addressing secondary causation are also inadequate as they impermissibly rely on the fact that the Veteran's lumbar spine condition existed prior to any evidence of gait problems from the service-connected pes planus. To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. See Frost v. Shulkin, 29 Vet. App. 131 (2017); 38 C.F.R. § 3.310 (a). The record includes positive nexus opinions from Dr. R.M. dated in June and October 2021. In both opinions, Dr. R.M. says they reviewed the Veteran's service records and medical history. Dr. R.M. concluded that the Veteran's service-connected pes planus caused his currently diagnosed back disability. As rationale, Dr. R.M. referenced medical literature and explained the mechanical nature of how flat feet move and distribute stress of weight bearing and the resulting impact on the spine. Dr. RM addressed the discrepancies in the record regarding the Veteran's gait, stating that the aforementioned stress alone is sufficient to likely cause the Veteran's lumbar spine condition. Upon review of the record, the Board finds service connection for lumbar spine condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.