Case A26036842

T. REYNOLDS · 2026 · Case ID: A26036842

MIXED

Summary

The Veteran served from May 2001 to May 2007 and July 2007 to September 2012. The Veteran appeals the denial of an increased rating for left foot metatarsalgia, for which service connection was granted at 10 percent. The Board found that the 10 percent rating was the maximum schedular rating for metatarsalgia under Diagnostic Code 5279 and that the evidence did not demonstrate loss of use of a foot or a disability more appropriately rated under a different code. The Board denied the increased rating, finding the evidence weighed against it and that the benefit-of-the-doubt rule did not apply. The case also involves several remanded claims: PTSD, sleep apnea, right knee disability, left knee limitation of extension and flexion, and left shoulder disability. For PTSD, the Board found the RO failed to properly collate and articulate deficiencies in the Veteran's stressor statements, constituting a duty to assist error. For sleep apnea, the Board found the RO failed to address secondary service connection to obesity, a duty to assist error, and that the issue was intertwined with other remanded claims. For the right knee, the Board found the RO's etiological opinion conclusory and insufficient. For the left knee and shoulder, the Board found the VA examinations insufficient regarding flare-ups and medication effects, also constituting duty to assist errors.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5279

Docket No.

201216-128983

Full Decision Text

Citation Nr: A26036842
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 201216-128983
DATE: April 21, 2026

ORDER

A rating in excess of 10 percent for left foot metatarsalgia is denied.

REMANDED

Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for right knee disability is remanded.

Entitlement to a rating in excess of 10 percent for limitation of left knee extension is remanded.

Entitlement to a rating in excess of 10 percent for limitation of left knee flexion is remanded.

Entitlement to a rating in excess of 20 percent for left shoulder disability is remanded.

FINDING OF FACT

For the entire period on appeal, the Veteran's left foot metatarsalgia is assigned a maximum 10 percent rating; loss of use of the feet is not shown.

CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for service-connected left foot metatarsalgia have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5279.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 2001 to May 2007 and from July 2007 to September 2012. These matters come before the Board of Veterans' Appeals (Board) after the issuance of a July 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), wherein he selected the Hearing with a Veterans Law Judge docket. The Veteran was scheduled for a hearing with a Veterans Law Judge on May 20, 2024; however, this hearing was cancelled at the Veteran's request; he did not request that he be provided with another one. As such, at this juncture, the Board finds that it is appropriate to address the merits of the Veteran's claim.

In the July 2020 rating decision, the RO granted service connection for the Veteran's left foot metatarsalgia and assigned thereto a 10 percent rating, effective May 23, 2019. The Veteran is seeking an increased rating throughout the appeal period.

According to Diagnostic Code 5279, a 10 percent rating is assigned for metatarsalgia, anterior (Morton's disease), that is unilateral or bilateral. 38 C.F.R. § 4.71a.

The already assigned 10 percent is the maximum schedular rating authorized under Diagnostic Code 5279. Furthermore, the Board does not find that the Veteran's left foot metatarsalgia would be more appropriately rated under a different diagnostic code, as the currently applied code directly contemplates the Veteran's disability. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) (holding that, as a matter of law, Diagnostic Code 5284 does not apply to the eight other foot conditions specifically listed in § 4.71a, and so listed conditions could not be rated by analogy under that Diagnostic Code).

A higher rating is warranted if there is loss of use of a foot, in which case the feet would be separately rated, and the ratings combined. See 38 C.F.R. § 4.71a, Diagnostic Code 5167.

In this case, the evidence does not show any foot disability equivalent to loss of use of a foot. Specifically, the Veteran underwent a VA examination in June 2019, during which a VA examiner determined that the Veteran's disability did not result in functional impairment such that no effective function remains.

For these reasons, the Board finds that the evidence persuasively weighs against the assignment of an initial disability rating in excess of 10 percent for the Veteran's service-connected left foot metatarsalgia. As such, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

PTSD

In May 2019, in support of his claim, the Veteran submitted a VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD. Therein, the Veteran identified a stressor, including the
the Board finds that the evidence persuasively weighs against the assignment of an initial disability rating in excess of 10 percent for the Veteran's service-connected left foot metatarsalgia. As such, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

PTSD

In May 2019, in support of his claim, the Veteran submitted a VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD. Therein, the Veteran identified a stressor, including the approximate month and year of that incident, a location, his unit of assignment, and a description of the event. The RO found that this document and the information contained therein were insufficient to attempt verification.

In a June 2019 letter, the RO informed the Veteran of this determination. The Veteran submitted another statement later in June 2019, echoing much the information he previously submitted, but also provided some additional information. The Veteran then underwent a VA examination in August 2019, during which he explained to the examiner his claimed in-service event.

In June 2020, the RO deferred adjudication of the Veteran's service connection claim for the Veteran's PTSD.

Later in June 2020, the RO sent the Veteran another letter, informing him that his May 2019 and June 2019 submissions were insufficient, as was his statement during the August 2019 VA examination, to enable verification of his claimed stressor. The Veteran did not provide or identify additional evidence prior to the July 2020 rating decision wherein the RO denied his service connection claim.

The Board finds that the RO accepted and reviewed the Veteran's statements and submissions individually, failing to collate the information provided in the various submissions or during the VA examination. Further, the RO did not specifically articulate what aspect(s) of the Veteran's assertions were lacking, only generally notifying him that his previous submissions were insufficient. The Board finds that both are pre-decisional duties to assist errors and, thus, remanding this claim for additional development is required. 38 C.F.R. § 20.802.

Sleep Apnea

The evidence of record indicates that the Veteran experiences obesity. The Board finds that this reasonably raises the assertion that the Veteran's sleep apnea is secondary to service-connected disability, with obesity as an intermediate step. See Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020); Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (holding that the Board must address issues raised by the appellant or reasonably raised by the record), aff'd sub nom Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009). The Veteran underwent a VA examination in August 2019, and the RO obtained an etiological opinion in July 2020, which did not address secondary service connection or the Veteran's obesity. The Board finds that this failure constitutes a pre-decisional duty to assist error and, thus, a remand to provide the Veteran with another VA examination is required. Id.

The Board also finds that the issue of entitlement to service connection for sleep apnea is inextricably intertwined with the other issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, remanding this claim for contemporaneous consideration is required.

Right Knee

In August 2019, the Veteran underwent a VA examination regarding his right knee disability; no etiological opinion was rendered at that time.

In July 2020, the RO obtained an etiological opinion from a different VA examiner. The Board finds that the July 2020 opinion is conclusory. Further, the examiner considered irrelevant evidence regarding the Veteran's other disabilities. For these reasons, the Board finds the opinion to be insufficient. This insufficiency is a pre-decisional duty to assist error and, thus, remanding this claim to obtain another opinion is required. 38 C.F.R. § 20.802.

Left Knee and Left Shoulder

Preliminarily, regarding the Veteran's left knee, the Board notes that the RO issued a February 2025 rating decision wherein it granted a separate 10 percent rating. The Board has modified the Veteran's current claims to reflect this grant.

In August 2019, the Veteran underwent VA examinations regarding his left knee and left shoulder disabilities. Neither examiner provided any information regarding the Veteran's impairment during a flare up, to include, if appropriate, an
finds the opinion to be insufficient. This insufficiency is a pre-decisional duty to assist error and, thus, remanding this claim to obtain another opinion is required. 38 C.F.R. § 20.802.

Left Knee and Left Shoulder

In August 2019, the Veteran underwent VA examinations regarding his left knee and left shoulder disabilities. Neither examiner provided any information regarding the Veteran's impairment during a flare up, to include, if appropriate, an indication that the Veteran did not experience/endorse flare ups of either disability.

Further, neither examiner discussed the Veteran's use of medications to treat symptoms (e.g., pain) associated with his left knee and left shoulder disabilities, including discounting any ameliorative effects they provided. See Ingram v. Collins, 38 Vet. App. 130 (2025).

The Board finds that the deficiencies discussed above render the August 2019 VA examinations insufficient and, moreover, that these insufficiencies constitute pre-decisional duty to assist errors. 38 C.F.R. § 20.802. Consequently, the Board finds that remanding these claims is required to provide the Veteran with additional VA examinations.

The matters are REMANDED for the following action:

1. Collate the information already provided by the Veteran regarding his claimed in-service stressor.

2. Provide the Veteran with notice about any specific deficiency with the collated information. Request from the Veteran a comprehensive statement with as much detail as possible regarding his claimed stressor, emphasizing the need for him to cure any identified deficiency. Ask the Veteran to provide specific details of any claimed event or other identifying information concerning any other individuals involved in the event, including their name, ranks, and units of assignment, or any other identifying detail. Advise the Veteran to submit any verifying information that he can regarding his claimed stressor, such as statements of fellow service members, police reports, newspaper articles, obituaries, etc. Advise the Veteran that this information is vitally necessary to obtain supportive evidence of the stressful events he claims to have experienced, and he must be asked to be as specific as possible, because, without such detail, an adequate search for verifying information cannot be conducted.

3. If the Veteran provides or identifies adequate information, undertake efforts to verify his claimed stressor.

4. Provide the Veteran with a VA examination regarding his sleep apnea. The Veteran's claims file must be made available to the examiner, and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities, to include consideration of obesity as an intermediate step.

With respect to the intermediate step of obesity, the examiner is asked to specifically consider and discuss whether any or any combination of the Veteran's service-connected disabilities resulted in obesity due to such factors as (1) mobility limitations; (2) reduced physical activity or inability to follow a course of exercise or diet; and/or (3) side effects of prescribed medication. If so, the examiner is asked to opine as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) the resulting obesity caused or aggravated the Veteran's sleep apnea.

Regarding secondary service connection, the examiner is also asked to consider whether it is at least as likely as not that any medication prescribed to treat the Veteran's service-connected disability caused or aggravated his sleep apnea.

All opinions rendered must be accompanied by a thorough rationale.

5. Obtain an etiological opinion regarding the Veteran's right knee disability. The Veteran's claims file must be made available to the examiner, and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported.

The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right knee disability was incurred during or due to his active duty.

All opinions rendered must be accompanied by a thorough rationale. If the examiner concludes that an examination is required, one should be provided to the Veteran.

6. Obtain a medical opinion from a VA examiner to determine the severity of the Veteran
iological opinion regarding the Veteran's right knee disability. The Veteran's claims file must be made available to the examiner, and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported.

The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right knee disability was incurred during or due to his active duty.

All opinions rendered must be accompanied by a thorough rationale. If the examiner concludes that an examination is required, one should be provided to the Veteran.

6. Obtain a medical opinion from a VA examiner to determine the severity of the Veteran's left knee and left shoulder disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities.

The examiner is asked to provide an opinion regarding the severity of the Veteran's disabilities, to include discounting the ameliorative effects of any medication.

The examiner should provide a rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. If the examiner concludes that an examination is required, one should be provided to the Veteran.

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Sean Pflugner

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.

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