BVA9501595 DOCKET NO. 92-09 262 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased disability rating for bilateral pes planus, currently evaluated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. 3. Entitlement to an effective date earlier than May 16, 1990 for an award of compensation for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from September 1953 to September 1955. This appeal arises from a March 1992 rating decision of the Denver, Colorado, Regional Office (RO) which, pursuant to a February 1992 decision of the Board of Veterans' Appeals (Board), implemented a grant of service connection for pes planus. The March 1992 decision rated this disability as 10 percent disabling effective from May 30, 1990 and denied the veteran's claim of entitlement to a total rating based on individual unemployability. In the notice of disagreement, which was received in April 1992, the veteran raised the issue of entitlement to retroactive benefits to 1955 for his service- connected pes planus. In November 1993, the Board remanded the case for further development. An August 1994 rating decision continued the previous denials of an evaluation above 10 percent for bilateral pes planus and of a total rating based on individual unemployability. The decision also changed the effective date of the 10 percent evaluation to May 16, 1990. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bilateral pes planus is more than 10 percent disabling. He contends that he suffers from severe pain and discomfort in his feet. He further contends that he should be awarded compensation from 1955, when his symptoms began. Finally, the veteran contends that he is unable to work due to his service-connected bilateral foot disability. His representative requests that all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for bilateral pes planus; that the preponderance of the evidence is against the claim for a total disability rating based on individual unemployability; and that the preponderance of the evidence is against the claim for entitlement to an effective date earlier than May 16, 1990 for an award of compensation for bilateral pes planus. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's bilateral pes planus is manifested by pain on manipulation and use of the feet, but there is no objective evidence of marked deformity, accentuated pain on manipulation and use, indications of swelling on use, or characteristic callosities. 3. The veteran's claim for service connection for bilateral pes planus was originally received by the RO on May 16, 1990. 4. Bilateral pes planus is the only disability for which service connection has been established. 5. The veteran's service-connected disability does not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5276 (1993). 2. The criteria for an effective date earlier than May 16, 1990 for an award of compensation for bilateral pes planus have not been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1993). 3. The criteria for a total disability rating for compensation based on individual unemployability have not been met. 38 C.F.R. §§ 3.321(b), 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Bilateral Pes Planus The veteran's service medical records were reportedly destroyed in a fire at the records center in 1973. The record does contain a revision of physical profile dated in June 1955 that reflects permanent restrictions for third degree pes planus. The veteran was deemed unfit to engage in prolonged standing or marching. The veteran's original claim for disability benefits was submitted in May 1990, and the Board granted service connection for bilateral pes planus in February 1992. In March 1992, the RO assigned a 10 percent disability evaluation. This rating has been continued in subsequent rating decisions. The veteran contends that he is entitled to a higher evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). The current 10 percent evaluation contemplates moderate disability with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. The next higher rating, 30 percent, requires a severe disability, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, bilateral. 38 C.F.R. Part 4, Code 5276 (1993). The record contains a letter dated in June 1990 from Ralph L. Kelley, M.D. Dr. Kelley stated that the veteran had severe third degree bilateral pes planus with difficulty in walking. He further stated that he had recommended a drive in pass for the veteran for work and that the veteran's feet were getting worse. A statement from James H. Hite, Jr., M.D., dated in June 1990, stated that the veteran had arthritis in his feet, that they had become progressively worse since January 1990, and that he had to lay off work in May 1990. He diagnosed extremely painful third degree pes planus. A VA examination was conducted in July 1990. The veteran reported pain in his feet and difficulty walking. On examination, both feet were flat, with the arches touching the ground completely; a finger could not be admitted under either arch. The gait was normal, but there was some audible cracking form the feet when the veteran walked. There was tenderness diffusely over the heels, arch and dorsum of the feet. Deep tendon reflexes were 1+ in the ankles. X-rays showed mild bilateral pes planus deformity. The diagnosis was bilateral pes planus with discomfort and limitation. The veteran was seen by Robert S. Young, M.D., in September 1990. Dr. Young reported that the veteran had severe symptomatic third degree pes planus that severely limited his ability to stand or walk for more than 30 minutes. He stated that the veteran walked with a definite limp. Dr. Young stated that the veteran's job required him to stand and walk around for a full eight hour shift. Dr. Young stated that it was his opinion that the veteran was permanently disabled from returning to any work for which he has seniority and experience. A Social Security Administration (SSA) disability examination was conducted in January 1991. The veteran complained of bilateral foot and ankle pain. On examination, there was a typical flattened arch which was not pathological. There was no callus on the plantar aspect of the foot and no sign of physical impairment or disturbance of weight bearing. X-rays were within normal limits. The examiner stated that the veteran was employable, at least at a sedentary type of occupation. A second physician noted that the veteran's complaints of constant pain did not seem that credible. VA outpatient treatment records dated from 1992 to 1994 show that the veteran underwent ultrasound and whirlpool treatments for his foot problems. Orthotics were provided in January 1994. The most recent VA examination was conducted in June 1994. The veteran stated that he had not been able to work in four years due to the pain in both feet. He stated that his previous job required him to walk back and forth between two work stations constantly during his shift. No specific swelling, heat or redness was noted. On examination, there was a slight limp. The feet were flat bilaterally. There was no heat, redness, tenderness or swelling of the Achilles' tendons. There was no tenderness to palpation of the heels, and no calluses on the plantar surface of either foot. No specific deformity or swelling was noted. There was normal range of motion of both ankles with plantar flexion from 0-40 degrees, dorsiflexion from 0-20 degrees, inversion from 0-20 degrees and eversion from 0-10 degrees bilaterally. The veteran was noted to have inserts in both of his thick-soled shoes. X-rays showed linear defect with associated bony excrescence in the medial cortex of the proximal left second metatarsal metaphysis. No evidence of fracture or dislocation was seen. The diagnosis was pes planus. The examiner stated that the degree of involvement of the pes planus remained mild at this time, specifically noting the lack of evidence of heat, swelling, calluses, deformity, severe spasm or tendonitis. He also noted that the veteran reported that pain medications and shoe inserts have not been effective in controlling his discomfort while walking. Finally, the examiner stated that the veteran could be gainfully employed in a type of employment that would not require the use of his feet for any prolonged period of time. The Board has carefully considered the veteran's allegations as to the extent of his current disability. However, the findings of the recent examinations most closely describe the moderate pes planus, with pain on use and manipulation of the feet, contemplated by the current 10 percent rating. 38 C.F.R. Part 4, Code 5276 (1993). They do not show a disability which approximates the severe impairment required for the next higher rating. 38 C.F.R. § 4.7 (1993). Specifically, there is no showing of objective evidence of marked deformity, indication of swelling on use, or characteristic callosities. 38 C.F.R. Part 4, Code 5276 (1993). The preponderance of the evidence is against a higher rating. The facts in this case are not in relative equipoise, therefore, they do not raise a reasonable doubt which would warrant an allowance of the claim in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993). Therefore, the current 10 percent rating is more appropriate and must be continued. II. Earlier Effective Date for Compensation Award The veteran contends that he is entitled to compensation from the date of discharge from active service in 1955 since his bilateral pes planus disability began at that time. The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later, if the claim is received more than 1 year after separation from service. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1993). The veteran's original claim for service connection for bilateral pes planus was received by the RO on May 16, 1990. The RO adjusted the veteran's effective date to May 16, 1990 by rating decision of August 1994. Since the claim for service connection was received more than 34 years after the veteran's separation from service, the date of receipt of the claim is the proper effective date for compensation. There is no basis in the law or regulations for an earlier effective date. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1993). III. Total Disability Rating Based on Individual Unemployability Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service connected disability. 38 C.F.R. §§ 3.321(b), 4.16 (1993). The veteran is only service-connected for his bilateral pes planus which results in no more than a moderate level of impairment. He contends that he is unable to work due to the constant pain and difficulty in walking caused by his service- connected bilateral pes planus. The record indicates that the veteran was employed for approximately 31 years with the Colorado Fuel and Iron Company. He reported that he has not worked since May 1990. The veteran has an 11th grade education. The Board notes that the record contains a February 1991 letter to the veteran from the SSA informing him that he was eligible for SSA benefits. The RO has obtained and the Board has reviewed the medical records considered by the SSA in their determination that the veteran was eligible for disability payments. In June 1990, Dr. Hite stated that the veteran had to lay off work in May 1990. In September 1990, Dr. Young stated that the veteran's job required him to stand and walk around for a full eight hour shift, and that it was his opinion that the veteran was permanently disabled from returning to any work for which he had seniority and experience. An SSA disability examination was conducted in January 1991. The examiner stated that the veteran was employable, at least at a sedentary type of occupation. The most recent VA examiner in June 1994 stated that the veteran could be gainfully employed in a type of employment that would not require the use of his feet for any prolonged period of time. The medical evidence of record does not indicate that the veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability. While the various examiners have concluded that the veteran is not able to pursue a job which requires prolonged standing or walking, that does not mean that he is incapable of performing sedentary or clerical- type employment which would allow him to rest his feet periodically. The only support for the claim is found in the veteran's own lay statements. The veteran contends that he is unable to work due to his service-connected condition, but his opinion is not competent evidence to establish the severity of his impairment. The Board must assess the credibility of statements, both oral and written, pursuant to the appeal. O'Hare v. Derwinski, 1 Vet.App. 365 (1991); Ferguson v. Derwinski, 1 Vet.App. 428 (1991). In this case, the lay statements to the effect that the veteran is unable to work due to his service-connected disability stand in direct contradiction to the medical findings. The credibility and probative value of the medical reports is very much greater than that of the lay statements. In light of the foregoing, the Board finds that the veteran is not unable to secure or follow a substantially gainful occupation as a sole result of his service-connected disability. The facts in this case do not raise a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993). Accordingly, a total disability rating for compensation purposes based on individual unemployability is denied. 38 C.F.R. §§ 3.321(b), 4.16 (1993). ORDER An evaluation in excess of 10 percent for bilateral pes planus is denied. Entitlement to an effective date earlier than May 16, 1990 for an award of compensation for bilateral pes planus is denied. A total disability rating for compensation based on individual unemployability is denied. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.