# Dyess v. Derwinski

> United States Court of Appeals for Veterans Claims · September 5, 1991 · 1 Vet. App. 448

URL: https://www.frixlaw.com/law-library/cases/6608679

## Case

- **Full name:** William C. DYESS v. Edward J. DERWINSKI, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** September 5, 1991
- **Citations:** 1 Vet. App. 448; 1991 U.S. Vet. App. LEXIS 88; 1991 WL 182107
- **Precedential status:** Published
- **Opinion:** Concurring in part by Mankin
- **Judges:** Ivers, Mankin, Steinberg
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6608679

## How later opinions describe it (automated extraction)

- applying 38 C.F.R. § 4.21 when evaluating pes planus

## Opinion text

MANKIN, Associate Judge,
concurring in part and dissenting in part.
While I agree with the majority that a remand is necessary in order to determine service connection for appellant’s knee condition, I would reverse on the pes planus issue under 38 C.F.R. § 4.71 (a), Diagnostic Code 5276 (1990). The record contains only two medical reports pertaining to appellant’s pes planus and only one contains a detailed description of the examination and the physician’s findings.
The first consists of handwritten notes made by a VA examiner in October 1988. This report was made on a standard VA form “Report of Medical Examination for Disability Evaluation”. It was conducted by a general surgeon who made a note of moderate pes planus as well as other illegible notations. The report also indicated that the surgeon was “unable to relate pes planus and R knee and LB problem.” R. at 55. The notes on this form are cursory and he recommended an exam by an orthopedic specialist. See R. at 52-54.
*456 The second medical report is a written report made after examination by a podiatrist in October 1988. This report lists findings upon physical examination which match those of severe pes planus under 38 C.F.R. § 4.57 — Static Foot Deformities (1990) and 38 C.F.R. § 4 .71a Code 5276. Appellant was noted to have “[bjiomechani-cally significant forefoot valgus with a plantar-flexed first ray complex accentuating the instability of the midfoot fault in late midstance phase of gait.” R. at 56. He was also noted to suffer from “[a] rigid forefoot valgus with an uncompensated re-arfoot varus accentuating the excessive in gait.” R. at 57. The portion of the Code which deals with static foot deformities mentions the valgus position of the foot in reference to severe cases. It states, “[i]n severe cases there is gaping of bones on the inner border of the foot, and rigid valgus position_” 38 C.F.R. § 4 .71a Code 5276 provides that a 30-percent rating is to be awarded in “severe” cases. Thus, the podiatrist’s statements in reference to the foot valgus would support a 30-percent rating.
The podiatrist’s report also noted “a significant medial column ... excessive mid-stance pronation noted with a mal-alignment of the knee joint complex in late midstance phase.” R. at 57. The 30-per-cent rating criteria also refers to “objective evidence of marked deformity (pronation, abduction, etc.)_” Again the 30-percent rating criteria closely match the podiatrist’s findings in relation to appellant’s gait and stance.
The 30-percent rating criteria refers to “pain on manipulation and use accentuat-ed_” The podiatrist’s report noted a “[pjainful pronated gait accentuated by poor foot mechanics.” R. at 57. The report further noted that appellant was complaining of significant foot and knee pain accentuated by activity. In addition he noted that appellant had related to him that he had been seeing his personal physician for back, knee, and foot problems which the doctor felt were accentuated by poor foot mechanics. Appellant’s statements to the podiatrist are uncontroverted.
Finally, the 30-percent criteria also refers to “characteristic callosities.” The 1988 podiatrist’s report noted that appellant suffered from “significant calcifica-tions of the achilles attachment as well as other degenerative findings in the midfoot fault.” R. at 57.
A careful review of the report of the podiatrist reveals that appellant’s pes pla-nus more closely resembles the 30-percent rating criteria than the 10-percent criteria.
The BVA decision cited the aforementioned information concerning the podiatrist’s exam in 1988 but then went on to conclude that appellant is not entitled to a rating above 10 percent for his service-connected pes planus. The BVA concluded that appellant is not entitled to a 30-per-cent rating because, “[o]n recent VA examination on October 1988, the appellant was clinically described as only of moderate degree. Although he had some pronation of the feet and impaired gait on podiatry examination that month, it is our opinion that, at least some of his gait impairment may be attributed to degenerative changes in his feet and other conditions for which service connection is not in effect, and therefore may not be considered in evaluation of this claim. Additionally, the podiatrist felt that the appellant would receive some relief from using orthotics.” William C. Dyess, BVA 90-06793, at 5 (March 5, 1990).
The Board gave its own opinion of appellant’s medical condition which is not supported by medical evidence in the record. The BVA did not provide any medical authority to support its conclusions. We cautioned the Board against this in Colvin v. Derwinski, 1 Vet.App. 171 (1991); see also Murphy v. Derwinski, 1 Vet.App. 78 (1990). In Colvin we held that “the BVA panels must consider only independent medical evidence to support their findings rather than provide their own medical judgment in the guise of a Board opinion.” Id. at 172 . I find the BVA conclusions in this case to be similar to those in Colvin wherein we found that the BVA was, “in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions.” Id. at 175 . We fur *457 ther noted that where the medical evidence of record is insufficient or of doubtful credibility the BVA is free to seek additional medical evidence or it may rely upon medical authority in recognized medical treatises. Likewise, the BVA was free to seek additional medical evidence or rely upon treatises in this case but it instead chose to draw its own medical conclusions.
The Board also seems to rely on the fact that the 1988 VA examination report described appellant’s condition as pes planus of a moderate degree. In so doing the Board ignores the majority of the evidence which would lead to the conclusion that appellant is entitled to a 30-percent rating.
The Board also appears to give greater weight to the VA examination than the podiatrist’s examination which was performed after the VA examiner requested further evaluation. The VA examination report merely consists of brief handwritten notes and there is no indication that the October 1988 VA exam was a thorough exam. The podiatrist’s report does show that he conducted a thorough examination. Additionally, the Board appears to have totally ignored the podiatrist’s description of appellant’s condition which closely fits the criteria for the 30-percent rating for pes planus.
I would hold the BVA finding that appellant is entitled to only a 10-percent rating to be clearly erroneous. In Gilbert v. Derwinski, 1 Vet.App. 49 (1990), we discussed 38 U.S.C. § 7261 (a)(4) (formerly § 4061(a)(4)) which states that this Court may hold unlawful and set aside findings of material fact only if they are found to be clearly erroneous. In Gilbert , at 52-53, we noted that, “this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determinations of the BVA ... we cannot overturn them.” Id. at 52-53 ; see also, Sammarco v. Derwinski, 1 Vet.App. 111, 112-114 (1991). Gilbert relied upon the United States Supreme Court holding that a court of appeals may not reverse if the lower court’s “account of the evidence is plausible in light of the record viewed in its entirety_” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985) (citing United States v. Yellow Cab. Co., 338 U.S. 338, 342 , 70 S.Ct. 177, 179 , 94 L.Ed. 150 (1949)).
In general, “ ‘[a] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.’ ” Gilbert , at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948)).
In the case at bar, I am left with a definite and firm conviction that a mistake has been committed in not granting appellant a 30-percent disability rating for pes planus since the diagnosis and statements in the only descriptive medical report in the record closely match the criteria for the 30-percent rating. The only other medical evidence in the record consists of handwritten notes which are not detailed and contain no discussion of appellant’s condition. For the reasons discussed herein I find no plausible basis in the record for the finding that appellant is entitled to only a 10-percent disability rating and, therefore, I would reverse on the pes planus issue and grant appellant a 30-percent disability rating for pes planus.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6608679. Public record. Not legal advice.