SCARS OF THE HEAD, FACE OR NECK

J. KIRBY · 2026 · Case ID: A26024575

MIXED

Summary

The Veteran, who served from January 1977 to January 1981 and September 1981 to June 1982, appeals multiple denials from prior rating decisions. The Veteran sought an increased rating for forehead scars, arguing they warranted more than the 30 percent assigned. The Board reviewed the May 2022 VA TBI examination, which found a scar with some adherence but no significant tissue loss or distortion, concluding the criteria for a higher rating were not met. The Board found the medical evidence more probative than the Veteran's subjective complaints and denied the increase, finding the benefit of the doubt doctrine inapplicable as the evidence weighed against a higher rating. The Veteran also sought a higher rating for service-connected gastritis with dyspepsia. The Board applied both pre- and post-May 19, 2024, rating criteria. Under the pre-amended criteria, the 10 percent rating was sustained as eroded or ulcerated areas were not shown. However, under the amended criteria, a 40 percent rating was granted effective May 19, 2024, due to the Veteran experiencing continuous abdominal pain, recurrent nausea, and melena, managed by daily medication, aligning with the criteria for that rating. Service connection for a right leg above-the-knee amputation was denied, as the Board found the evidence persuasively weighed against a service connection, noting the amputation occurred post-service due to gangrene and peripheral arterial disease, with no asserted in-service injury or disease. The Veteran's claims for temporary total disability due to hospitalization/convalescence, automobile assistance, specially adapted housing (SAH), and special home adaptation (SHA) were also denied, as service connection for the underlying amputation was not established, and the Veteran did not meet the criteria for these benefits based on his existing service-connected disabilities. The claim for service connection for sleep apnea, to include as secondary to a service-connected disability, was remanded due to an inadequate VA examiner opinion. The examiner failed to address aggravation of sleep apnea by migraine headaches, which is a separate inquiry from causation.

Rationale

Evidence did not meet criteria for higher rating; Medical findings less probative than Veteran's subjective complaints; Benefit of doubt doctrine inapplicable as evidence weighed against higher rating

Special Benefit

TEMPORARY TOTAL (§4.30); AUTO / ADAPTIVE EQUIPMENT

Docket No.

250422-547021

Full Decision Text

Citation Nr: A26024575
Decision Date: 03/18/26 Archive Date: 03/18/26

DOCKET NO. 250422-547021
DATE: March 18, 2026

ORDER

Entitlement to an initial rating in excess of 30 percent for forehead scars is denied.

Entitlement to a rating in excess of 10 percent for gastritis with dyspepsia for the period prior to May 19, 2024, is denied.

Entitlement to a 40 percent for gastritis with dyspepsia for the period beginning May 19, 2024, is granted, subject to the laws and regulations governing the payment of monetary awards.

Entitlement to service connection for right leg above-the-knee amputation is denied.

Entitlement to a temporary total rating due to the need for convalescence or hospitalization in excess of 21 days due to a service-connected disability is denied.

Entitlement to financial assistance for an automobile or other conveyance and adaptive equipment or for adaptive equipment only is denied.

Entitlement to specially adapted housing is denied.

Entitlement to special home adaptation is denied.

REMANDED

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's forehead scars did not manifest in visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or four or five characteristics of disfigurement.

2. Prior to May 19, 2024, the Veteran's gastritis with dyspepsia did not manifest in multiple small eroded or ulcerated areas.

3. Beginning May 19, 2024, the Veteran's gastritis with dyspepsia manifested in episodes of abdominal pain, nausea, or vomiting, that: last for at least three consecutive days in duration; occur four or more times in the past 12 months; and are managed by daily prescribed medication; anemia and hospitalizations were not shown.

4. The evidence of record persuasively weighs against finding that the Veteran's right leg above-the-knee amputation began during active service or is otherwise related to an in-service injury or disease.

5. During the period on appeal, none of the Veteran's service-connected disabilities required at least one month of convalescence, severe post-operative residuals, a major joint was not immobilized or necessitate that the Veteran be hospitalized in excess of 21 days.

6. At no point during the period on appeal, did the Veteran have a service-connected disability resulting in the loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; permanent impairment of vision of both eyes; severe burn injury precluding effective operation of an automobile; amyotrophic lateral sclerosis (ALS); or ankylosis of one or both knees or one or both hips.

7. At no point during the period on appeal did the Veteran have a service-connected disability rated as permanent and total due to the loss or loss of use of both upper extremities or loss or loss of use of both of his lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; nor does he have service-connected amyotrophic lateral sclerosis, full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or loss of use of one lower extremity with blindness in both eyes that results in only having light perception.

8. At no point during the period on appeal did the Veteran have permanent and total service-connected disability which includes the anatomical loss or loss of use of both hands or is due to burn injuries or residuals of an inhalational injury, nor did he have a service-connected disability due to blindness in both eyes, with corrected central visual acuity of 20/200 or less in the better eye.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent forehead scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800.

2. Prior to May 19, 2024, the criteria for a rating in excess of 10 percent for gastritis with dyspepsia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3
20/200 or less in the better eye.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent forehead scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800.

2. Prior to May 19, 2024, the criteria for a rating in excess of 10 percent for gastritis with dyspepsia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7307.

3. The criteria for a 40 percent rating, but no higher for gastritis with dyspepsia have been met beginning May 19, 2024. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7307

4. The criteria for service connection for right leg above-the-knee amputation are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for entitlement to a temporary total rating due to the need for convalescence or hospitalization in excess of 21 days have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30.

6. The criteria for eligibility to financial assistance for an automobile or other conveyance and adaptive equipment or adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5103, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808.

7. The criteria for specially adapted housing (SAH) have not been met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809, 3.809a.

8. The criteria for a special home adaptation (SHA) grant have not been met. 38 U.S.C. §§ 2101 (b), 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1977 to January 1981 and from September 1981 to June 1982.?????

In?December 2023, January 2024, and March 2024,?the Veteran?submitted VA Forms 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2023 rating decision that granted service connection and assigned a noncompensable (0 percent) evaluation for forehead scars, denied a rating higher than 10 percent for gastritis, denied service connection for sleep apnea and a right leg above-the-knee amputation, and denied entitlement to temporary total evaluations because of hospital treatment in excess of 21 days and because of treatment for a service-connected disability; a February 2023 rating decision that denied entitlement to SAH and SHA; and a March 2023 rating decision that denied entitlement to an allowance for an automobile or other conveyance, and adaptive equipment, or adaptive equipment only; respectively.

In an interim March 2023 rating decision, the initial rating for the Veteran's forehead scar was increased to 30 percent. The agency of original jurisdiction (AOJ) also granted service connection separately for painful forehead scars, but the Veteran has not appealed that issue in his April 2025 VA Form 10182, and it is not before the Board.

In?March 2024, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the prior respective rating decisions, to include denying a rating in excess of 30 percent for forehead scars.

In the April 22, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the January 2023, February 2023, and March 2023 AOJ decisions,
, but the Veteran has not appealed that issue in his April 2025 VA Form 10182, and it is not before the Board.

In the April 22, 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the January 2023, February 2023, and March 2023 AOJ decisions, which were all subsequently subject to higher-level review in April 2024, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to a higher initial rating for forehead scars, entitlement to a higher rating for gastritis, service connection for a right leg above-the-knee amputation, temporary total evaluations because of hospital treatment in excess of 21 days and because of treatment for a service-connected disability; entitlement to SAH and SHA; an allowance for an automobile or other conveyance, and adaptive equipment, or adaptive equipment only, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim 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.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is remanding the issue of entitlement to service connection for sleep apnea for further development, this additional evidence will be considered by the AOJ in the adjudication of that claim.

Increased Rating

Disability ratings are?determined?by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as?practically can?be?determined, on average impairment in earning capacity.? Separate Diagnostic Codes?identify?the various disabilities.? 38?C.F.R. Part 4.? When rating a service-connected disability, the entire history must be borne in mind. Schafrath?v.?Derwinski, 1?Vet. App.?589 (1991).? Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria?required?for that rating.? Otherwise, the lower rating will be assigned.? 38?C.F.R. §?4.7.??????????

Where entitlement to compensation has already been?established?and an increase in the disability rating is at issue, the present level of disability is of primary concern.??See?Francisco v. Brown, 7?Vet. App.?55, 58 (1994).? Staged ratings are?appropriate in?any increased-rating claim in which distinct time periods with different ratable symptoms can be?identified.??Hart v. Mansfield, 21?Vet. App.?505 (2007).???????

Forehead Scars

The Veteran seeks an initial compensable rating for his service-connected forehead scars, which has been rated as 30 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7800 from January 4, 2022.

Service connection for forehead scars was granted in a January 2023 rating decision and assigned a noncompensable (0 percent) rating, effective January 4, 2022. As noted above, in a March 2023 rating decision, the initial rating was increased to 30 percent, also effective January 4, 2022. As noted above, service connection was separately granted for painful forehead scars and
505 (2007).???????

Forehead Scars

As the Veteran's December 2023 Higher Level Review request, the Veteran specifically requested review of the issue of the rating of the Veteran's forehead scar as addressed in the January 2023 rating decision. Therefore, the Board will only address the rating of the Veteran's forehead scars under Diagnostic Code 7800, not the rating assigned for painful scar under Diagnostic Code 7804.

Under Diagnostic Code 7800, for scars of the head, face or neck, or other disfigurement of the head, face, or neck, a 10 percent rating is assigned for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement warrants. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement warrants. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118.

Note (1) provides the following 8 characteristics of disfigurement: a scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper- pigmented in an area exceeding six square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39-sq. cm.).

Diagnostic Code 7805 relates that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate Diagnostic Code.

Neither Diagnostic Codes 7801 and 7802 are applicable with respect to the Veteran's disability because both Diagnostic Codes pertain to scars "other than the head, face or neck" and his service-connected disability affects his forehead.

Based on a review of the record, the Board concludes that an initial rating in excess of 30 percent is not warranted at any point during the period on appeal for the Veteran's forehead scars under Diagnostic Code 7800 because the evidence of record does not reflect that the Veteran had tissue loss, distortion or asymmetry or any paired sets of features or four characteristics of disfigurement.

The only reviewable evidence of record during the period on appeal that addresses the Veteran's forehead scar is a May 2022 VA contract traumatic brain injury (TBI) examination. The examiner found that the Veteran had a mid-upper forehead scar "with illumination" as a result of his TBI. The examiner found that the scars were not painful, unstable, or had a total area greater than 39 square centimeters (6 square inches). The scar measured 3.5 cm by 0.1 to 0.2 cm. The scar adhered to a palpable linear ridge of firm, non-mobile raised (not visible) subcutaneous scar tissue. A separate DBQ for the Veteran's scar was not completed.

There are no other disabling effect not considered in a rating provided under Diagnostic Codes 7800-04.

In deciding the Veteran's claim for increase,
) examination. The examiner found that the Veteran had a mid-upper forehead scar "with illumination" as a result of his TBI. The examiner found that the scars were not painful, unstable, or had a total area greater than 39 square centimeters (6 square inches). The scar measured 3.5 cm by 0.1 to 0.2 cm. The scar adhered to a palpable linear ridge of firm, non-mobile raised (not visible) subcutaneous scar tissue. A separate DBQ for the Veteran's scar was not completed.

There are no other disabling effect not considered in a rating provided under Diagnostic Codes 7800-04.

In deciding the Veteran's claim for increase, the Board has considered his lay statements that his service-connected disability is more severe than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6?Vet. App.?465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate Diagnostic Codes. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the qualified personnel who have treated him during the current appeal, and who have rendered pertinent opinions in conjunction with the evaluations. The competent medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology.??

For these reasons, the Board finds that the criteria for a rating greater than 30 percent disabling are not met, and the appeal is denied. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the evidence is persuasively against the assignment of higher ratings.?38?U.S.C. §?5107?(b); 38?C.F.R. §§?4.3, 4.7.???

Gastritis

The Veteran seeks a higher rating for his service-connected gastritis with dyspepsia, which has been rated as 10 percent disabling from January 11, 2016, under 38 C.F.R. § 4.114, Diagnostic Code 7307. He filed his claim for a higher rating in July 2022.

During the pendency of this appeal, the provisions of 38 C.F.R. § 4.114 were amended, effective May 19, 2024. 89 Fed. Reg. 19,735 (Mar. 20, 2024). The Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from May 19, 2024, when the regulations became effective. Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000.

Prior to May 19, 2024, Diagnostic Code 7307 provided a 10 percent rating for chronic gastritis with small nodular lesions, and symptoms; a 30 percent rating for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms, which rates hypertrophic gastritis (identified by gastroscope); a maximum disability rating of 60 percent is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307.

Under the amended criteria in effect beginning May 19, 2024, Diagnostic Code 7307 indicates that gastritis should be rated as peptic ulcer disease under Diagnostic Code 7304. 38 C.F.R. § 4.114, Diagnostic Code 7307. Diagnostic Code 7304 provides that a non-compensable rating for a history of peptic ulcer disease documented by endoscopy or diagnostic imaging studies; a 20 percent rating for episodes of abdominal pain, nausea, or vomiting, that: last for at least three consecutive days in duration; occur three times or less in the past 12 months; and are managed by daily prescribed medication; a 40 percent rating for episodes of abdominal pain, nausea, or vomiting, that: last for at least three consecutive days in duration; occur four or more times in the past 12 months
as peptic ulcer disease under Diagnostic Code 7304. 38 C.F.R. § 4.114, Diagnostic Code 7307. Diagnostic Code 7304 provides that a non-compensable rating for a history of peptic ulcer disease documented by endoscopy or diagnostic imaging studies; a 20 percent rating for episodes of abdominal pain, nausea, or vomiting, that: last for at least three consecutive days in duration; occur three times or less in the past 12 months; and are managed by daily prescribed medication; a 40 percent rating for episodes of abdominal pain, nausea, or vomiting, that: last for at least three consecutive days in duration; occur four or more times in the past 12 months; and are managed by daily prescribed medication; a 60 percent rating for continuous abdominal pain with intermittent vomiting, recurrent hematemesis (vomiting blood) or melena (tarry stools); and manifestations of anemia which require hospitalization at least once in the past 12 months; and a 100 percent rating for post-operative for perforation or hemorrhage, for three months. 38 C.F.R. § 4.114, Diagnostic Code 7304.

In a July 2022 VA contract stomach and duodenal condition examination, the Veteran reported having a constant burning pain in his abdomen, burning aches, nausea, and vomiting. His treatment plan including taking continuous medication for his gastritis which included Zantac and Omeprazole. The examiner found that the impact of the Veteran's condition was that he was unable to perform any work because of his condition due to erosive gastritis, abdominal duodenum characterized by spiculated medial contour and mass effect. The Veteran's symptoms included continuous abdominal pain that occurred at least monthly and was unrelieved by standard ulcer therapy; recurrent nausea, occurring 4 or more times per year and lasting for 10 days or more; and recurrent melena, occurring 4 or more times per year and lasting 1 to 9 days. The Veteran had incapacitation episodes of gastritis 4 or more times per year and lasting for 10 days or more. The examiner did not indicate that the Veteran had anemia. The examiner opined that the Veteran's stomach condition impacted his ability to work because his condition was stressful and he had to avoid spicy foods. The condition also kept him awake at night, so the next day he was tired and could not complete housework.

Based on a review of the record, the Board concludes that a rating in excess of 10 percent for gastritis with dyspepsia is not warranted prior to May 19, 2024, but a 40 percent rating, but no higher, is warranted beginning that date.

As noted during the pendency of this appeal, the rating criteria for gastritis under Diagnostic Code 7307 was amended and the Board will consider both the old and new rating criteria as permitted, and apply whatever criteria is more favorable.

Under the pre-amended criteria, a rating in excess of 10 percent is not warranted. At no point during the period on appeal was the Veteran's gastritis with dyspepsia shown to have manifested in any eroded or ulcerated areas. Therefore, the pre-amended criteria for a higher 30 percent rating has not been met.

However, a higher 40 percent rating is warranted beginning May 19, 2024, under the amended criteria as for that stage of the appeal period, the Veteran's gastritis with dyspepsia has been manifested by continuous abdominal pain that occurred at least monthly and was unrelieved by standard ulcer therapy; recurrent nausea, occurring 4 or more times per year and lasting for 10 days or more; and recurrent melena, occurring 4 or more times per year and lasting 1 to 9 days. His gastritis also required continuous medication for treatment. A higher 60 percent rating is not warranted as the record does not reflect that the Veteran had anemia or was hospitalized for his digestive disorder at any point during the period on appeal. Further, a 100 percent rating is not warranted as the Veteran was not shown to have surgery for his digestive condition at any point during the period on appeal.

While the Board finds that the new criteria are more favorable to the Veteran, they can only be applied from May 19, 2024, the date the regulations became effective. See Karnas, 1 Vet. App. at 308; Kuzma, 341 F.3d at 1327; 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. Therefore, the higher 40 percent rating is warranted from May 19, 2024, and a rating in excess of 10 percent prior to that date is
rating is not warranted as the Veteran was not shown to have surgery for his digestive condition at any point during the period on appeal.

In deciding the Veteran's claim for increase, the Board has considered his lay statements that his service-connected disability is more severe than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6?Vet. App.?at 465. He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate Diagnostic Codes. Jandreau, 492 F.3d at 1376-77. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the qualified personnel who have treated him during the current appeal, and who have rendered pertinent opinions in conjunction with the evaluations. The competent medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology.??

The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because otherwise the evidence is persuasively against the assignment of higher ratings beyond that awarded by this decision.?38?U.S.C. §?5107?(b); 38?C.F.R. §§?4.3, 4.7.???

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Entitlement to service connection for right leg above-the-knee amputation.

The Veteran seeks service connection for his right leg above-the-knee amputation.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a current diagnosis of a right leg above-the-knee amputation as noted in private treatment records as having occurred in June 2022, the evidence of record persuasively weighs against finding that the Veteran's right leg amputation is related to an in-service injury, event, or disease.

Review of the Veteran's service treatment records confirms that the amputation did not occur during service. Review of the Veteran's post service VA and private treatment records indicate that in June 2022, the Veteran was admitted to a private hospital following a right foot transmetatarsal amputation (amputation of his toes) because of resulting stump gangrene and septic shock. He was found with acute hypoxic respiratory failure, pneumonia, and gangrene of the right lower extremity. He underwent guillotine right above knee amputation at that time, in order to control the gangrene of his right foot in the setting of known peripheral arterial disease.

In sum, the Board finds that the probative evidence of record does not establish that the Veteran's right leg above-the-knee amputation is related to his military service or a service-connected condition. As a threshold issue, the Veteran has not asserted he incurred any injury or disease related to his right leg during his active duty service; his July 2022 claim and April 2025 Form 10182 do not allege an inservice injury, event, or disease or that he experienced continuing symptoms since his separation from service. 38 C.F.R. § 3.303. The record also does not show that service connection is in effect for peripheral arterial disease, or other illness suggestive of affecting the right lower extremity, such as diabetes or peripheral neuropathy (both of which were previously claimed but denied by the AO
that the Veteran's right leg above-the-knee amputation is related to his military service or a service-connected condition. As a threshold issue, the Veteran has not asserted he incurred any injury or disease related to his right leg during his active duty service; his July 2022 claim and April 2025 Form 10182 do not allege an inservice injury, event, or disease or that he experienced continuing symptoms since his separation from service. 38 C.F.R. § 3.303. The record also does not show that service connection is in effect for peripheral arterial disease, or other illness suggestive of affecting the right lower extremity, such as diabetes or peripheral neuropathy (both of which were previously claimed but denied by the AOJ).

Absent either of these, the threshold to order a VA examination to determine a nexus is not reached. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the AOJ's decision not to obtain a VA examination did not constitute pre-decisional error. There is no other evidence suggesting a nexus. Accordingly, the criteria for service connection are not met, and the appeal must be denied.

In reaching the conclusions?stated?above, the Board has considered the applicability of the benefit of the doubt doctrine.?As the evidence persuasively favors one side or the other, the doctrine is not for application.?See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en?banc); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.??

Entitlement to a temporary total rating due to the need for convalescence or hospitalization in excess of 21 days due to a service-connected disability

The Veteran seeks a temporary total rating due to being hospitalized for over 21 days for his right above-the-knee amputation and for convalescence following that hospital stay.

Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Subject to the provisions of paragraphs (d), (e), and (f) of § 4.29, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29 (a).

If a hospital admission was for disability not connected with service, and during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. See 38 C.F.R. § 4.29 (b).

The assignment of a total disability rating on the basis of hospital treatment or observation will not preclude the assignment of a total disability rating otherwise in order under other provisions of the rating schedule, and consideration will be given to the propriety of such a rating in all instances and to the propriety of its continuance after discharge. Particular attention, with a view to proper rating under the rating schedule, is to be given to the claims of veterans discharged from hospital, regardless of length of hospitalization, with indications on the final summary of expected confinement to bed or house, or to inability to work with requirement of frequent care of physician or nurse at home. See 38 C.F.R. § 4.29 (c).

Additionally, under 38 C.F.R. § 4.30, a temporary total disability rating may also be assigned if a service-connected disability results in one of the following: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Additionally, under 38 C.F.R. § 4.29, a total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment or observation in a VA or
-connected disability results in one of the following: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Additionally, under 38 C.F.R. § 4.29, a total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment or observation in a VA or an approved hospital for a period in excess of 21 days.

In the Veteran's July 2022 claim, the Veteran asserted that he was hospitalized for over 21 days, from June 2, 2022, to June 27, 2022, for his right above-the-knee amputation with continued rehabilitation that followed.

In a separately filed July 2022 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran asserted that a temporary total disability was warranted due to hospitalization for treatment for more than 21 days and for requiring convalescence of at least one month due to severe postoperative residuals of his right leg amputation.

The record reflects that the Veteran was hospitalized for 21 days or more as he was hospitalized for his right leg amputation from June 2, 2022, to June 27, 2022, and he required at least one month of convalescence following that surgery. See Favorable Findings April 2025 HLR decision.

However, as service connection for a right above-the-knee amputation was not in effect at the time of the June 2022 hospitalization and has not been warranted at any point during the period on appeal, to include elsewhere in this decision, the criteria for both entitlement to a temporary total rating for a period in excess of 21 days for a service-connected disability and to a temporary total rating based on the need of convalescence have not been met. The appeal is therefore denied.

Entitlement to financial assistance for an automobile or other conveyance and adaptive equipment or for adaptive equipment only.

The Veteran seeks entitlement to financial assistance for an automobile or other conveyance and adaptive equipment.

Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. See 38 U.S.C. § 3902 (a), (b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis (ALS); or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. See 38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.808, 17.156.

The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63.

Examples under 38 C.F.R. § 3.350 (a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concom
a foot, could be accomplished equally well by an amputation stump with prosthesis. See 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63.

Examples under 38 C.F.R. § 3.350 (a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63.

Further, in Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The Board must also consider the impact of pain. Id.

In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court further clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350 (a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809 (b) (see below). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Jensen Court did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id.

Service connection is in effect for posttraumatic stress disorder (PTSD), migraine headaches, forehead scars, painful forehead scars, gastritis with dyspepsia, traumatic brain injury (TBI), and erectile dysfunction.

While the Veteran has undergone a right above-the-knee amputation, as found above, service connection is not warranted for such a disability and is not the result of any service-connected disability. The Veteran does not have a service-connected disability of severe visual impairment, severe burn injury, ALS, or any disability affecting his upper extremities. Ankylosis has also not been shown in any joint.

Accordingly, the most probative medical evidence of record does not support that the Veteran's service-connected disabilities meet the necessary criteria for a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only. The evidence does not support that he has either ankylosis of any joint or permanent loss of use of one or both hands or feet due to a service-connected disability or has otherwise met any of the other criteria listed under 38 U.S.C. § 3901 and 38 C.F.R. § 3.808.

The evidence of record is persuasively against finding that the Veteran's service-connected disabilities satisfy the criteria set forth in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 for eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, under 38 U.S.C. § 3902. Accordingly, his appeal must be denied.

Specially Adapted Housing

Special Home Adaptation

The Veteran seeks specially adapted housing and special home adaptation.

Specially adapted housing is available to veterans who have a service-connected disability rated as permanent and total due to ALS or one of the following: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of
wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809 (a), (b), (d).

If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature.

Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the trunk; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a (b).

Again, service connection is in effect for PTSD, migraine headaches, forehead scars, painful forehead scars, gastritis with dyspepsia, TBI, and erectile dysfunction.

As noted by the favorable findings in the April 2025 HLR decision, the Veteran's right leg above-the-knee amputation meets the criteria for potential SAH and SHA; however, as found above, service connection is not warranted for such a disability and is not the result of any service-connected disability. The Veteran also does not have a service-connected disability of severe visual impairment, a severe burn injury, ALS, residuals of an inhalation injury, or a service-connected disability affecting either lower extremity. See 38 U.S.C. § 2101 (a)(2)(C).

Accordingly, the Board finds that the evidence is persuasively against a finding of entitlement to specially adapted housing or a special home adaptation grant. The competent and probative medical evidence is against finding that the Veteran's service-connected disabilities meet any of the criteria under 38 C.F.R. § 3.809 or 3.809a. For these reasons, the appeals are denied.

REASONS FOR REMAND

Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability.

The appeal for service connection for sleep apnea is remanded to correct a duty to assist error that occurred prior to the January 2023 rating decision. Specifically, the opinion of the September 2022 VA contract examiner is inadequate.

The Veteran asserts that his sleep apnea is secondary to his service-connected migraine headaches. The September 2022 VA contract examiner provided a negative opinion as to whether the Veteran's sleep apnea was caused by the Veteran's headaches but did not address aggravation. These are separate inquiries. El-Amin v. Shinseki, 26?Vet. App.?136, 140 (2013). Accordingly, a new opinion is necessary.

The matter is REMANDED for the following action:

1. Obtain an opinion from?a qualified medical provider, with?in-person or telehealth examination?if?deemed necessary by the examiner, on the?likely etiology of?the Veteran's sleep apnea.? Copies of all pertinent records should be made available to the examiner for review.??Based on the review?of?the record (and examination if needed), the examiner should answer the following:??????

Is it whether
by the Veteran's headaches but did not address aggravation. These are separate inquiries. El-Amin v. Shinseki, 26?Vet. App.?136, 140 (2013). Accordingly, a new opinion is necessary.

The matter is REMANDED for the following action:

Is it whether it is at least as likely as not (i.e.,?likelihood approximately?balanced or nearly equal, if not higher) that the Veteran's?sleep apnea is (i) caused (direct result) or (ii) aggravated (any increase in disability) by?the Veteran's service-connected migraine headaches? Why or why not??

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as?appropriate. If an opinion cannot be provided, the examiner should?indicate?why.?

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Struening, Eric

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.

Analyze in VA Law Explorer