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Court of Appeals for Veterans Claims Brief: BVA Denial of Servie Connection (Brief 1, p 14)

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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This was legal error. The veteran had been receiving 10% disability for the right foot metatarsalgia, and now had been diagnosed with bilateral metatarsalgia which the examining physician from the VA stated was at least as likely as not due to the veteran's service-connected foot metatarsalgia. This was new and material evidence - material to both the increased rating of right foot metatarsalgia, and to the claim of a bilateral foot condition.

The Regulations set forth the correct procedure to follow under the "bilateral factor:" "When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. 38 C.F.R. § 4.26.

The Regulations state that [t]he use of the terms "arms" and "legs" is not intended to distinguish between the arm, forearm and hand, or the thigh, leg and foot, but relates to the upper extremities and lower extremities as a whole. Thus, with a compensable disability of the right thigh, for example, amputation, and one of the left foot, for example, pes planus, the bilateral factor applies, and similarly whenever there are compensable disabilities affecting use of paired extremities regardless of location or specified type of impairment. 38 C.F.R. § 4.26(a).

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