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Court of Appeals for Veterans Claims Brief: BVA Denial of Servie Connection (Brief 1, p 12)

Disabilities: Stomach Disorder, metatarsalgia of the right foot, and Bilateral foot and leg disorder

Court of Appeals for Veterans Claims Brief: BVA Denial

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The Board Decision denying the veteran's claim for entitlement to a rating in excess of 10 percent for metatarsalgia of the right foot and in denying the claim for service connection for bilateral foot and leg disorders other than metatarsalgia of the right foot is clearly erroneous.

The degree of disability under the VA schedule for rating disabilities is a finding of fact subject to the "clearly erroneous" standard of review. See Smallwood v. Brown, 10 Vet.App.93, 97 (1997); Lovelace v. Derwinski, 1 Vet. App. 73, 74 (1990); Gilbert v. Derwinski, 1 Vet.App.49, 53 (1990). "Reversal is the appropriate remedy when ‘[t]here is absolutely no plausible basis' for the decision and where that decision ‘is clearly erroneous in light of the uncontroverted evidence in appellant's favor.'" Pentecost v. Principi, 16 Vet. App. 124, 129 (2002); Harder v. Brown, 5 Vet. App. 183, 189 (1993); Barnhill v. Brown, 5 Vet. App. 75, 77 (1993). Clear and Unmistakable Error ("CUE") is present only where thee is an error that is "undebatable, so that . . . reasonable minds could only conclude that the original decision was fatally flawed." Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

On August 6, 1997, the Board awarded 10% disability for metatarsalgia right foot since 07/03/96, based on an exam at the VA Health System Richmond, and on a VA examination of 4/8/97 at the VA Health System Baltimore in which the metatarsal heads were tender bilaterally . The Rating Decision stated that service connection had been established for the right foot condition but not for the left foot condition (R. 1029).

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