Entitlement to service connection for a right foot disability is denied.

Citation Nr: A26069946 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 250723-569929 DATE: July 30, 2026 ORDER Entitlement to service connection for a right foot disability is denied. For the entire period on appeal, entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an increased rating for residuals of a traumatic brain injury (TBI), to include whether separate ratings are warranted for Meniere's disease and/or vision changes, is remanded. FINDINGS OF FACT 1. The evidence persuasively weighs against a finding that the Veteran has a current right foot diagnosis or any current right foot symptoms resulting in functional impairment of earning capacity. 2. The Veteran is currently in receipt of the maximum rating of 10 percent available for left foot metatarsalgia under Diagnostic Code (DC) 5279 for the entire period on appeal; loss of use of the left foot is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for an initial rating in excess of 10 percent for left foot metatarsalgia are not met for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5279. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from May 1977 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2025 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), notice of which was sent to the Veteran on July 11, 2025. Notably, the RO made favorable findings that new and relevant evidence had been received in support of the service connection claims on appeal. Having found no clear and unmistakable error, the Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Accordingly, the Board will readjudicate the claims on a de novo basis. Later in July 2025, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal) and requested direct review by the Board. The Board observes that the Veteran included lay evidence in his VA Form 10182. Pursuant to Edwards v. McDonough, 36 Vet. App. 56 (2023), in the September 2025 Board docketing letter, the Veteran was advised that he may request to switch dockets. To date, the Veteran has not requested to switch dockets, and the deadline has now elapsed for requesting a docket switch. Accordingly, the Board will review the matter under the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2025 rating decision on appeal. 38 C.F.R. §?20.301. Any evidence submitted after July 2025 rating decision cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the bilateral knee and TBI claims, any evidence the Board could not consider will be considered by the RO in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Of note, in a January 2026 rating decision, the RO awarded a 70 percent rating for posttraumatic stress disorder (PTSD) with TBI and associated mild neurocognitive disorder under DCs 8045-9411, effective July 11, 2024. Prior to the January 2026 rating decision, the Veteran was in receipt of a 10 percent rating for his TBI under DC 8045, effective July 11, 2024. Considering the January 2026 rating decision and based on the evidence discussed in the Remand section below, the Board has recharacterized the TBI issue on appeal as one seeking an increased rating for residuals of a TBI, to include whether separate ratings are warranted for Meniere's disease and/or blurred vision. As an aside, the Board notes that the Veteran has other pending appeals regarding the issues of service connection for major depressive disorder with anxious distress (Docket No. 250726-569135) and service connection for left side sternocleidomastoid muscle spasm and rigidity (Docket No. 260410-666105). Those appeals will be addressed in separate decisions. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to service connection for a right foot disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (2018) (holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."). A subsequent decision by the U.S. Court of Appeals for Veterans Claims (Court) in Wait v. Wilkie, 33 Vet. App. 8 (2020) provided further guidance on the Saunders test for establishing pain as a disability. Under Wait, the Court found that a disability under Saunders requires competent evidence demonstrating that the symptoms result in functional impairment that in fact affects the veteran's earning capacity. In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. The rating schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 17. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against the claim, the claim is denied. Here, the Veteran asserts that service connection is warranted for a right foot disability. See July 2024 claim application. In the July 2025 rating decision on appeal, the RO made a favorable finding that the claimed primary disability of left foot metatarsalgia is service connected. Having found no clear and unmistakable error, the Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). As an aside, the Board notes that in rating decisions dated January 2025, June 2025, and July 2025, the RO also made "favorable" findings that the Veteran participated in a toxic exposure risk activity (TERA) during service due to exposure to asbestos, industrial solvents, leads, and fuels (petroleum, oils, and lubricants) in his military occupational specialty (MOS). However, these findings are not relevant (or favorable) to the instant claim since it is based on physical trauma to the right foot. See July 2024 claim application; VBA Letter 20-24-06, Updated Guidance on Processing Claims Involving the PACT Act, 89 Fed. Reg. 51,224 (Jun. 17, 2024). Turning to the evidence, in July 2024, the Veteran filed a service connection claim for "[b]ilateral feet" as due to his MOS and ruck sack marches during service. In a September 2024 VA Form 27-0820 Report of General Information, in pertinent part, the Veteran stated that he experiences pain and swelling in his feet, and that his left foot is twice as swollen as his right foot. In October 2024, the Veteran was provided a VA examination for his claimed bilateral foot disability, which was documented in a January 2025 VA "Foot Conditions" Disability Benefits Questionnaire (DBQ). Notably, the Veteran did not report any current right foot symptoms, to include pain or swelling, on examination. See id. Furthermore, in the "Remarks" section of the DBQ, the VA examiner found that the Veteran's claimed "BILATERAL FEET; PAIN AND SWELLING, has been subsumed by the diagnosis of Metatarsalgia in the Left Foot. There was no objective evidence to support a disabling diagnosis in the R foot, as examination of the R foot was normal in all respects." Id.; see also January 2025 VA medical opinion. On review, the Board finds that the evidence persuasively weighs against the Veteran's claim as there is no evidence of a currently diagnosed right foot disability or any current right foot symptoms resulting in functional impairment of earning capacity. Although the Veteran endorsed pain and swelling in his feet in the September 2024 VA Form 27-0820 Report of General Information, he did not provide any information as to whether those symptoms affect his earning capacity. Furthermore, on VA examination in October 2024, a little over a week after he provided the statement in September 2024, the Veteran denied experiencing any symptoms in his right foot, and the VA examiner found that the Veteran did not have a current right foot diagnosis. The Board acknowledges that in a June 2025 Supplemental Claim, the Veteran asserted that service connection was warranted for a right foot disability to include as due to his in-service TERA, and that he attached an article titled "Asbestos Exposure Linked to Arthritis." However, since there is no lay or medical evidence of a current diagnosis of right foot arthritis, the Board does not find that a TERA opinion would be warranted for this claim pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). See 38 U.S.C. § 1168. In sum, the Veteran does not meet the threshold element of a current disability. Because the evidence does not show that he is diagnosed with a current right foot disability or has any current right foot symptoms resulting in functional impairment of earning capacity, there can be no valid claim. See Brammer, 3 Vet. App. at 225. For these reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim. Accordingly, the benefit-of-the-doubt rule is not for application, and service connection for a right foot disability must be denied. 2. Entitlement to an initial rating in excess of 10 percent for left foot metatarsalgia Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion (ROM) testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Here, the Veteran is currently in receipt of an initial rating of 10 percent for left foot metatarsalgia under DC 5279 for the entire period on appeal. He asserts that a higher rating is warranted. See February 2025 and June 2025 Supplemental Claims; July 2025 VA Form 10182. On review, the Board finds that the evidence persuasively weighs against the Veteran's claim. A 10 percent rating is the maximum rating available under DC 5279 for unilateral metatarsalgia. See 38 C.F.R. § 4.71a, DC 5279. Furthermore, the Board does not find that the Veteran's metatarsalgia would be more appropriately rated under another DC, as the currently applied code directly contemplates his disability. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015). Under DC 5167, a higher rating of 40 percent is available if there is loss of use of the foot. See 38 C.F.R. § 4.71a, DC 5167; see also 38 C.F.R. § 4.63 (loss of use of foot). However, in this case, the evidence does not show any foot disability equivalent to loss of use of a foot. See January 2025 VA "Foot Conditions" DBQ. The Veteran's ability to stand and walk on his left foot, although limited by pain, swelling, and unsteadiness, reflects more function than would be served by amputation of the foot. See id. For these reasons, the Board finds that the evidence persuasively weighs against the Veteran's claim. Accordingly, the benefit-of-the-doubt rule is not for application, and the claim for an initial rating in excess of 10 percent for left foot metatarsalgia must be denied. Furthermore, although there is some evidence of occupational impairment in this matter, the Board finds that there is no cogent evidence of unemployability due to the Veteran's left foot metatarsalgia, so as to raise the issue of entitlement to a total disability rating based upon individual unemployability (TDIU). See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); Rice v. Shinseki, 22 Vet. App. 447 (2009); see also January 2025 VA "Foot Conditions" DBQ (noting that the Veteran's left foot metatarsalgia impacts his ability to perform occupational tasks since he is unable to stand or walk for prolonged periods of time and has unsteadiness on his feet); May 2025 VA "Initial PTSD" DBQ (Veteran reported he has his own business buffing, waxing, and polishing cars). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, apart from those discussed in the Remand section below. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Remand by the Board in the system governed by the Appeals Modernization Act (AMA) is proper for correction of (1) duty to assist errors occurring prior to the date of the RO decision on appeal (i.e., pre-decisional duty to assist errors) and (2) RO errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the Veteran's claim. 38?C.F.R. §?20.802(a). 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts that service connection is warranted for right and left knee disabilities. In rating decisions dated January 2025, June 2025, and July 2025, the RO made favorable findings that: (1) the Veteran participated in a TERA during service due to exposure to asbestos, industrial solvents, leads, and fuels (petroleum, oils, and lubricants) in his MOS; and (2) the claimed primary disability of left foot metatarsalgia is service connected. Having found no clear and unmistakable error, the Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). In October 2024 correspondence, the Veteran, through his representative, stated that he experiences weakness and arthritis in his bilateral knees. In a June 2025 Supplemental Claim, the Veteran asserted that service connection was warranted for his knee disabilities as "secondary to SC L. Foot and TERRA (sic)." In June 2025, the Veteran submitted multiple articles: (1) "The Impacts of Overcompensating Limbs and Joints," which noted that "[l]ower joints such as the hips, knees, and ankles will suffer the most from overcompensation"; (2) an article titled "Asbestos Exposure Linked to Arthritis"; and (3) an article titled "Autoimmunity and Asbestos Exposure." In July 2025, the Veteran submitted an article titled "Foot Marching and Load-Carriage Injuries," which included a check mark next to and underline of the words "knee pain" in the article. To date, the Veteran has not been provided VA examinations or medical opinions for these claims. Based on the foregoing evidence, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the RO erred in not providing the Veteran VA examinations prior to adjudicating these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Additionally, the Board finds that the RO must obtain VA medical opinions as to direct service connection, TERA opinions, and opinions as to whether the Veteran's right and left knee disabilities are caused or aggravated by his service-connected left foot metatarsalgia. The Board acknowledges that a TERA opinion would not ordinarily be required in such claims given the physical trauma exception in the PACT Act sub-regulatory guidance. See VBA Letter 20-24-06, Updated Guidance on Processing Claims Involving the PACT Act, 89 Fed. Reg. 51,224 (Jun. 17, 2024). However, here, the evidence reasonably raises the theory that the Veteran's in-service asbestos exposure may be linked to his claimed bilateral knee arthritis, potentially independent of any physical trauma that may have occurred during service. Therefore, the Board finds that TERA opinions are also warranted for these claims. 3. Entitlement to an increased rating for residuals of a TBI, to include whether separate ratings are warranted for Meniere's disease and/or blurred vision, is remanded. As noted previously, in a January 2026 rating decision, the RO awarded a 70 percent rating for PTSD with TBI and associated mild neurocognitive disorder under DCs 8045-9411, effective July 11, 2024, which is the entire period on appeal in this matter. Even so, the Board finds that the issue of entitlement to increased rating for residuals of a TBI is still on appeal before the Board. In October 2024, the Veteran was provided a VA examination for his TBI residuals. See October 2024 VA "Initial Evaluation of Residuals of TBI" DBQ. In the "Remarks" section of the DBQ, the VA examiner wrote, "Although the Veteran reported occasional dizziness and 'stumbling a lot', Audiology Consult on 04 Nov 2016 reports a diagnosis of Meniere's disease 2 years prior." The VA examiner did not provide any further comment as to the etiology of the Veteran's Meniere's disease. Additionally, the Veteran complained of blurry vision and other vision changes in VA treatment records during the period on appeal. See VA treatment records dated October 2024 to April 2025. Per 38 C.F.R. § 4.124a, DC 8045, intermittent dizziness and blurred or double vision may be subjective symptoms of a TBI, and Meniere's disease is provided as an example of a potential TBI residual that has a distinct diagnosis. On review, the Board finds that remand is necessary to cure a pre-decisional duty to assist error by the RO. Prior to adjudicating the TBI claim, the RO should have obtained addendum VA medical opinions to clarify whether the Veteran's Meniere's disease and/or vision changes are residuals of his TBI. If so, the Veteran should be provided VA examinations to document their severity. This must be accomplished on remand. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran a VA examination for his claimed right and left knee disabilities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. After a review of the entire claims file and examination of the Veteran, the examiner is asked to: (a) Elicit from the Veteran and the record the history of his knee symptoms during and since active service. (b) Identify all diagnoses pertaining to the Veteran's claimed right and left knee disabilities, to include symptoms resulting in functional impairment of earning capacity. (c) For each current knee disability, provide an opinion as to the following: a. MEDICAL OPINION - Direct Service Connection Whether it at least as likely as not had its onset during or is otherwise related to the Veteran's active service, to include as due to foot marching or load-carriage injuries. b. MEDICAL OPINION - TERA Whether it is at least as likely as not that there is a nexus between the disability at one or more of the Veteran's TERAs, considering the total potential exposure through all applicable military deployments and the synergistic, combined effect of all his TERAs. c. MEDICAL OPINION - Secondary Service Connection by Causation Whether it is at least as likely as not caused by the Veteran's service-connected left foot metatarsalgia, to include as due to overcompensation. d. MEDICAL OPINION - Secondary Service Connection by Aggravation Whether it is at least as likely as not aggravated by the Veteran's service-connected left foot metatarsalgia, to include as due to overcompensation. In providing these opinions, please consider the following: " In rating decisions dated January 2025, June 2025, and July 2025, the RO made favorable findings that: (1) the Veteran participated in a TERA during service due to exposure to asbestos, industrial solvents, leads, and fuels (petroleum, oils, and lubricants) in his MOS; and (2) the claimed primary disability of left foot metatarsalgia is service connected. " In October 2024 correspondence, the Veteran, through his representative, stated that he experiences weakness and arthritis in his bilateral knees. " In a June 2025 Supplemental Claim, the Veteran asserted that service connection was warranted for his knee disabilities as "secondary to SC L. Foot and TERRA (sic)." " In June 2025, the Veteran submitted multiple articles: (1) "The Impacts of Overcompensating Limbs and Joints," which noted that "[l]ower joints such as the hips, knees, and ankles will suffer the most from overcompensation"; (2) an article titled "Asbestos Exposure Linked to Arthritis"; and (3) an article titled "Autoimmunity and Asbestos Exposure." " In July 2025, the Veteran submitted an article titled "Foot Marching and Load-Carriage Injuries," which included a check mark next to and underline of the words "knee pain" in the article. 2. Obtain an addendum VA medical opinion regarding the Veteran's TBI residuals. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one must be provided to the Veteran. After a review of the entire claims file, the examiner is asked to provide opinions as to the following: (a) Whether the Veteran's Meniere's disease is at least as likely as not a residual of his TBI. If so, please complete a VA "Ear Conditions" DBQ to document the severity of the Veteran's Meniere's disease. (Continued on the next page) ? (b) Whether the Veteran's vision changes (reported in VA treatment records dated October 2024 to April 2025) are at least as likely as not a residual of his TBI. If so, please complete a VA "Eye Conditions" DBQ to document the severity of the Veteran's vision changes. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Counsel 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.