FINGER(S) AMPUTATION OF ONE OR MORE

JOHN J. CROWLEY · 2026 · Case ID: A26037945

DENIED

Summary

The veteran, who served from August 2015 to July 2018, appeals the denial of service connection for right finger amputations and seeks an increased rating for his service-connected back disability and syncope. The veteran claimed his finger amputations were secondary to syncope, alleging a syncopal episode caused him to faint and injure his fingers while mowing a lawn. However, the Board found the VA examiner's opinion more persuasive, concluding that the injury was likely due to the veteran's actions with the lawnmower rather than a syncopal episode, and that the veteran's lay testimony lacked the necessary medical expertise to establish a nexus. For the back disability, the veteran claimed entitlement to a rating higher than 20 percent, citing weekly severe flare-ups. The Board reviewed the VA examinations, which showed no objective neurological abnormalities, no IVDS, and flexion limitations that did not meet the criteria for a higher rating. The Board found the objective medical evidence, particularly the range of motion findings, outweighed the veteran's subjective complaints. For syncope, the veteran sought a rating higher than 10 percent, but the Board found the evidence did not support more than a 10 percent rating, as there was no history of major seizures or frequent minor seizures, and the syncope was not severe enough to require continuous medication. The Board denied all claims.

Rationale

No evidence of in-service injury/amputation; Lay testimony lacked medical expertise for nexus; VA examiner opinion found more probative

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5003

Docket No.

210504-157052

Full Decision Text

Citation Nr: A26037945
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 210504-157052
DATE: April 22, 2026

ORDER

Service connection for right finger amputations is denied.

A disability rating higher than 20 percent for a back disability is denied.

A disability rating higher than 10 percent for syncope is denied.

FINDINGS OF FACT

1. The Veteran's right finger amputations are not shown to be causally related to his service connected syncope.

2. The?Veteran's service-connected back disability has not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc syndrome and/or a herniated disc with compression or irritation of the nerve root;?or any associated?neurological?impairment.?

3. The Veteran's syncope is characterized by dizziness; it has not resulted in a clinical diagnosis of seizures or epilepsy.

CONCLUSIONS OF LAW

1. The criteria for service connection for right finger amputations have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310.

2. The criteria for a disability rating higher than 20 percent for a back disability have not been met.? 38?U.S.C. §§?1155, 5107; 38?C.F.R. §?4.71a, Diagnostic Codes 5237-5243.

3. The criteria for a disability rating higher than 10 percent for syncope have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Codes 8108, 8911.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The?Veteran?served on active duty from August 2015 to July 2018.

The?Veteran?appeals?March 2021 and May 2021?Appeals Modernization Act (AMA) rating decisions.? The?Veteran?submitted?a timely?AMA?Notice of Disagreement (Hearing Review Lane)?received?May?2021.??See?VA Form 10182.???

The?Veteran?testified?before?the undersigned?Veterans Law Judge?in July 2024 and had 90 days?thereafter to?submit?additional?evidence in support of this appeal pursuant to?the?AMA?Hearing Lane election.??

The Board acknowledges that a claim for TDIU is considered part and parcel of a claim for an increased rating, when reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, there is a separate AMA appeal stream for the matter of entitlement to a TDIU and the claim for an increased rating for posttraumatic stress disorder that encompasses the period under consideration here and has been docketed under a separate appeal stream, 210923-187063.

Generally, the same issue cannot be adjudicated in two different AMA appeal streams. Under the AMA, each decision on an issue is subject to one review. See 38 U.S.C. § 5104C (a)(1); 38 C.F.R. § 3.2500 (a). Thus, as the Veteran's TDIU claim is subject to its own appeal, the issue will not be adjudicated herein and will be addressed in a separate Board decision.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.??38?U.S.C. § 1131;?38?C.F.R. §?3.303.? Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.??38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?3.303(d).???????

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease
particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein.??38?C.F.R. §?3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.? 38?C.F.R. §?3.303(d).???????

To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service.? Horn v.? Shinseki, 25?Vet. App.?231, 236 (2010);?Shedden?v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);?Gutierrez v.?Principi, 19?Vet. App.?1, 5 (2004) (citing Hickson v.?West, 12?Vet. App.?247, 253 (1999)).? In many cases, medical evidence is required to meet the requirement that the evidence be "competent."? However, when a disability may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.? Barr v. Nicholson, 21?Vet. App.?303, 309 (2007).???????

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the?veteran's service.? 38?C.F.R. §?3.310.? In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities and the condition said to be proximately due to the service-connected disability or disabilities.? Buckley v. West, 12?Vet. App.?76, 84 (1998); see also?Wallin?v. West, 11?Vet. App.?509, 512 (1998).? In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. ?See Allen v. Brown,?7?Vet. App.?439 (1995);?38?C.F.R. §?3.310(b); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).??

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.? VA shall consider all information and medical and lay evidence of record.? Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.? 38?U.S.C. §?5107; 38?C.F.R. §?3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).????

Lastly, the Board notes that in Medlin v. Collins, 2025 U.S. App. Vet.?Claims LEXIS 1122 (13 Aug 2025), the Court recently held that to satisfies its duty to provide adequate reasons and bases under 38 U.S.C. § 7104(d)(1) its' decisions should include the following: 1. address legal authorities potentially applicable to the claim; 2. analyze the credibility and probative value of evidence; 3. account for evidence that it finds persuasive or unpersuasive; and 4. provide reasons for rejecting any material evidence potentially favorable to the claimant.

1. Entitlement to service connection for right finger amputations.

The Veteran seeks service connection for amputated right hand fingers secondary to his service connected syncope. He claims that he was mowing his lawn when he experienced a syncopal episode which caused him to become dizzy and faint.

When he regained consciousness, he found himself on the ground with his right hand fingers amputated, specifically his index finger, long (middle finger) finger and partial amputation of the distal ring finger.

The evidence does not show, nor does the Veteran claim, that his right hand fingers were injured/amputated during service. Accordingly, since
4. provide reasons for rejecting any material evidence potentially favorable to the claimant.

1. Entitlement to service connection for right finger amputations.

The evidence does not show, nor does the Veteran claim, that his right hand fingers were injured/amputated during service. Accordingly, since the Veteran does?not contend that his right hand finger amputations are directly related to service, and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for these?disabilities?on a secondary basis. See Robinson v. Mansfield, 21?Vet. App.?545, 552-56?(2008) (concluding "that the Board is?not?required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki,?557 F.3d 1355 (Fed. Cir. 2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory").??

VA treatment records during the period on appeal document syncope associated with lightheadedness.

VA treatment records show that in September 2019, the Veteran was treated in August 2019 at a private facility after he reportedly experienced a syncopal episode and passed out while mowing the lawn with his hands under the mower blades suffering partial amputation of his right hand fingers. He had to have hand reconstruction surgery and three finger partial amputation.

The Veteran underwent a VA examination in November 2019. He reported that in August 2019, he found himself on the ground with right second and third fingers amputated from lawn mower. The Veteran indicated that at the time, the safety device on the lawn mower was functional. He went to the hospital to have fingers treated.

Following a review of the evidence and an examination of the Veteran, the examiner opined that the right hand amputated fingers were less likely than not caused by the service connected syncope. The examiner explained that when a person fainted, they lost consciousness along with loss of lose use of extremities. The examiner noted that the Veteran reported that he was mowing the lawn and woke up with his right hand fingers amputated. Given the Veteran's report that the safety device on the lawn mower was functioning at the time of the incident, which would cause lawn mower blade cessation when releasing the lawn mower handle, the examiner opined that it was more likely that the Veteran was trying to reach under lawn mower while it was running, injured his fingers and then fainted from the pain and blood.

As an individual who does, from time to time, mow lawns, the Board finds the examiner's deductive reasoning to be highly probative.

Notably, the Veteran reported not recalling what happened and his wife claimed to have found him holding on to the lawn mower while fainted. The examiner reiterated that the type of injury described was not congruent with a true syncopal episode as the Veteran would have lost use of his extremities, including his right hand, thus triggering the lawn mower safety mechanism.

The Board finds the opinion of the VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran's right finger amputations are secondary to the service connected syncope.? The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his claimed injuries were due to service or were proximately caused by his service connected syncope. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and is of significant probative value. See Nieves-Rodriguez v. Peake, 22?Vet. App. 295, 303-304 (2008); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and
service connected syncope.? The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his claimed injuries were due to service or were proximately caused by his service connected syncope. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and is of significant probative value. See Nieves-Rodriguez v. Peake, 22?Vet. App. 295, 303-304 (2008); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a Veteran's medical records). Accordingly, the November 2019 VA medical opinion carries significant probative weight in the Board's determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Significantly, there is no competent medical evidence that supports the Veteran's contentions.?

Even the Veteran's statements do not support his claim as he indicates he does not recall what happened. The claim is based on speculation.

To the extent VA treatment records since September 2019 reflect a history of right finger amputations associated with syncope, such evidence is merely a recordation of the Veteran's history and does not represent a probative medical conclusion by a physician. LeShore v. Brown, 8 Vet. App. 406 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional).

The Board has considered the Veteran's statements asserting that his syncope caused him to faint and then injure his fingers after he fainted. The Board notes that lay statements can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error to reject "categorically" lay statements on the issue of medical nexus, and similarly to make a categorical finding that a medical opinion was required); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). Moreover, the Veteran is competent to report experiencing lay observable symptoms. See Washington v. Nicholson, 19 Vet. App. 363 (2005).

However, the Veteran does not have the training or expertise to render a competent opinion on the medical issue in this case, namely whether his right finger amputations were caused by the lawn mower blades, which apparently malfunctioned and amputated his fingers after he fainted due to his service connected syncope. Syncopal episodes and its effect on the body is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).

Here, the only evidence suggesting a medical nexus between the Veteran's right finger amputations and the service connected syncope is the Veteran's lay assertion of causation. As noted, this etiological question is a medical determination that is too complex to be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469-71. Moreover, although the Veteran contends that his right finger amputations occurred after he fainted, he admittedly has no recollection of the events that transpired as he woke up on the ground after the injury occurred, and
, the only evidence suggesting a medical nexus between the Veteran's right finger amputations and the service connected syncope is the Veteran's lay assertion of causation. As noted, this etiological question is a medical determination that is too complex to be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469-71. Moreover, although the Veteran contends that his right finger amputations occurred after he fainted, he admittedly has no recollection of the events that transpired as he woke up on the ground after the injury occurred, and he has submitted no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Accordingly, although lay persons are competent to provide opinions on some medical issues, because the specific issue in this case falls outside the realm of common knowledge of a lay person, the Veteran's unsupported assertions concerning the etiology of his current right finger amputations lack probative value, and are outweighed by the November 2019 VA medical opinion to the contrary. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); see also Jandreau, 492 F. 3d at 1376-77; Layno, 6 Vet. App. at 469-71; Kahana, 24 Vet. App. at 435.

In any event, the facts of this case are the key issue, and the facts of this case do not support the contention in this case: The Veteran fainted due to his service connected problem and, somehow, the lawnmower ran over his hands. The facts of this case strongly suggests that he was doing something with the lawnmower he should not have been doing (as people in the United States do frequently) and he accidentally injured himself, leading him to fait due to the injury.

In reaching the above conclusions, and in?accordance with Medlin, supra, the Board's decision including the following: 1. It addressed all legal authorities potentially applicable to the claim; 2. It analyzes the credibility and probative value of evidence; 3. It accounted for evidence that it found and unpersuasive; and 4. It provided reasons for rejecting any material evidence potentially favorable to the claimant.

Also, in reaching the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence of record is against the claim (i.e., the evidence for and against the claim is not approximately in balance), the Board finds that the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Lynch, supra.

Increased Ratings

Ratings for service-connected disabilities 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.? 38?U.S.C. §?1155; 38?C.F.R. §?4.1.? 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.? The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than
.F.R. §?4.1.? 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.? The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12?Vet. App.?119 (1999); Hart v. Mansfield, 21?Vet. App.?505 (2009).???

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."? See Butts v. Brown, 5?Vet. App.?532, 538 (1993).? One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.???

Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint.? When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected.???

38?C.F.R. §?4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis).? Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38?C.F.R. §?4.71a, Diagnostic Code 5003.? When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.? The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38?C.F.R. §?4.71a, Diagnostic Code 5003.? In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38?C.F.R. §?4.71a, Diagnostic Code 5003, Note 1.???

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.? Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.? 38?C.F.R. §§?4.59; see Burton v. Shinseki, 25?Vet. App.?1, 5 (2011) (holding that the provisions of 38?C.F.R. §?4.59 are not limited to disabilities involving arthritis).???

Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38?C.F.R. §§?4.40, 4.45, 4.59; see also DeLuca v. Brown, 8?Vet. App.?202 (1995); Burton, 25?Vet. App.?at 5.? The Court also held in Correia v. McDonald, 28?Vet. App. 158 (2016) that the final sentence of 38?C.F.R. §§?4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.???

Nonetheless,
. See 38?C.F.R. §§?4.40, 4.45, 4.59; see also DeLuca v. Brown, 8?Vet. App.?202 (1995); Burton, 25?Vet. App.?at 5.? The Court also held in Correia v. McDonald, 28?Vet. App. 158 (2016) that the final sentence of 38?C.F.R. §§?4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.???

Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss.? Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38?C.F.R. §§?4.40, before a higher rating may be assigned.? See Mitchell v. Shinseki, 25?Vet. App.?32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating).???

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38?C.F.R. §?4.71a were amended effective February 7, 2021.? 85 Fed. Reg. 230 (Nov. 30, 2020).? These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.???

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.? 38?U.S.C. §?5110(g).? If the revised version of the regulation is more favorable, the implementation of that regulation under 38?U.S.C. §?5110(g) can be no earlier than the effective date of that change.? If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change.? 38?U.S.C. §?5110.? Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021.? The criteria that is more favorable to the Veteran will be applied.

Finally, the Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint.? 38?C.F.R. §?4.59;?Correia, supra.? The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in?Sharp, addressing?38?C.F.R. §?4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."? In light of these requirements, the Board has carefully considered the VA examination of record and whether it complied with?Correia?and?Sharp.?

The Board finds the 2018 and 2019 VA examinations did substantially conform to those requirements.?

2. Entitlement to a rating higher than 20 percent a back disability.

The Veteran claims that he is entitled to a disability rating higher than that currently assigned. At his July 2024 Board hearing he testified that he experienced back flare-ups that rendered him unable to move. He reported weekly flare-ups as often as 3 to 4 times a week.

Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).? Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under?38?C.F.R. §?4.25.? 38?C.F.R. §?4.
2024 Board hearing he testified that he experienced back flare-ups that rendered him unable to move. He reported weekly flare-ups as often as 3 to 4 times a week.

As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses.???

The?Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243.? The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.? A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees;?or,?the combined range of motion of the thoracolumbar spine not greater than 120 degrees;?or,?muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.? A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less.? A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine.? A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.? 38?C.F.R. §?4.71a, General Rating Formula.? In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code.? 38?C.F.R. §?4.71a, General Rating Formula, Note 1.???

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.? The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.? The normal combined range of motion of the thoracolumbar spine is 240 degrees.? The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.? 38?C.F.R. §?4.71a, General Rating Formula,?Note?(2); see also Plate V.???

Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes.? Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.? A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months.? A?rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.? A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months.? Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. ?38?C.F.R. §?4.71a, IVDS Formula.??

On VA examination in February 2018, the Veteran denied back flare-ups. Forward flexion was to 90 degrees, extension was 30 degrees, right and left flexion was to 30 degrees, and bilateral rotation was to 30 degrees, without
are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.? A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months.? Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. ?38?C.F.R. §?4.71a, IVDS Formula.??

On VA examination in February 2018, the Veteran denied back flare-ups. Forward flexion was to 90 degrees, extension was 30 degrees, right and left flexion was to 30 degrees, and bilateral rotation was to 30 degrees, without pain. There was no pain on weight bearing. There was no tenderness to palpation, guarding or muscle spasms. There was no additional loss of function or range of motion after three repetitions or with repeated use over time. Muscle strength was normal with no muscle atrophy. Reflexes were normal. Sensation was normal. Straight leg raising test was negative, bilaterally. There were no neurological abnormalities associated with the lumbar spine. There was no IVDS. There was no ankylosis. Imaging studies were negative. The Veteran did not require assistive devices for ambulation. There was no occupational or functional impairment. The examiner found no objective credible medical evidence to support a diagnosis for a chronic back condition, therefore, a condition was not diagnosed.

On VA examination in August 2019, the Veteran described pain in his lower back and down his left leg, as well as inability to bend all the way over without pain. He reported limping with prolonged standing or sitting. He treated his symptoms with medication. The condition interfered with sleep, sitting, bending and walking. He endorsed severe daily flare-ups that lasted all day. Forward flexion was to 60 degrees, extension was 20 degrees, right and left flexion was to 20 degrees, and bilateral rotation was to 10 degrees with repeated use over time and with flare-ups. There was no pain on weight bearing and non-weight bearing. There was tenderness to palpation without guarding or muscle spasms. Muscle strength was normal with no muscle atrophy. Reflexes were normal. Sensation was normal. Straight leg raising test was negative, bilaterally. There were no neurological abnormalities associated with the lumbar spine. There was no IVDS. There was no ankylosis. Imaging studies were negative. The Veteran did not require assistive devices for ambulation. There was no occupational or functional impairment. The examiner diagnosed degenerative arthritis of the spine.

The Board notes that during the period on appeal, the Veteran's VA and private treatment records reflect?findings?consistent?with the VA?examination?reports, and nothing in these records show adverse symptomatology to be worse than what was reported by the above VA?examiners, particularly the range of motion testing, which consistently provides evidence against this claim.???

Here, the evidence does not show, nor does the Veteran claim, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a week or more during any given 12 months period, and/or a herniated disc with compression or irritation of the nerve root.? Additionally, the VA examiner found no evidence of IVDS. ?Thus, considering both the pre- and post-February 7, 2021, Diagnostic Code 5243, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS.? 38?C.F.R. §?4.71a, Diagnostic Code 5243.????

As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula.???

Here, the range of motion findings detailed above, do not show limitation so severe as to meet the criteria for the next higher rating of 40 percent.???

To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. ?38?C.F.R. §?4.71a.? Recorded range of motion findings, to include during his reportedly severe daily flare-ups, showed that the Veteran's flexion was noted, at worst, to 60 degrees.? There is no evidence that his forward flexion of the lumbar spine was limited to 30 degrees. See DeLuca, 8?Vet. App.?at 207; see also Mitchell, 25?Vet. App.?at 32; Correia, 28?Vet. App.?at 158; Sharp, 29?Vet. App.?at 26.? Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis or the functional equivalent of ankylosis.? Therefore, the Board finds that a rating in excess of 20 percent is not warranted.? 38?C.F.R. §?4.71a, Diagnostic Codes 5235-5242.?????

In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.?? At no time throughout the appeal was there any reliable objective evidence of any neurological abnormalities of the lumbar spine that would provide adequate information to assign any separate compensable rating. For this reason, separate ratings for objective neurological abnormalities are not warranted.

The Veteran is competent to describe his observable symptoms, including back pain resulting in limitation of motion. Layno, 6 Vet. App. at 469-71. However, to the extent that his reported symptoms are inconsistent with the objective medical evidence of record, such statements are afforded less probative value, as the Veteran does not possess the medical or orthopedic expertise to assess the severity of a complex musculoskeletal or orthopedic condition. See Jandreau, 492 F. 3d at 1376-77. The medical findings directly address the criteria under which this disability is evaluated. The Board accords the objective records greater weight than the Veteran's subjective complaints. See Cartwright, 2 Vet. App. at 24-25. Therefore, the claim for increased schedular or additional separate ratings must be denied.

In sum, a disability rating higher than 20 percent for the Veteran's back disability throughout the appeal, is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch, supra.

3. Entitlement to a disability rating higher than 10 percent for syncope.

The Veteran generally asserts that his service-connected syncope is worse than what his current evaluation reflects.

The Veteran's disability is rated by analogy under a hyphenated diagnostic code. Diagnostic Code 8108, for narcolepsy, directs VA adjudicators to evaluate narcolepsy under the rating criteria for petit mal epilepsy (Diagnostic Code 8911).

The General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula) provides that both the frequency and type of seizures a Veteran experiences are considered in determining the appropriate rating. See 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911.

Under the General Rating Formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. Under the General Rating Formula for Major and Minor Epileptic Seizures, both the frequency and type of seizures experienced are considered in determining the appropriate rating. Note (1) defines a major seizure as one that is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1). Note (2) defines a minor seizure as a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (2).

A 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or
(1). Note (2) defines a minor seizure as a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (2).

A 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures, or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. See 38 C.F.R. § 4.124a, Diagnostic Code 8911. Note (1) provides that a minimum 10 percent rating is warranted when continuous medication is shown necessary for the control of epilepsy, and that this 10 percent rating is not to be combined with any other rating for epilepsy.

The Veteran underwent a VA examination in 2019. He reported having experienced episodes of light headiness with heart palpitations and chest discomfort. He reported having fainted twice at work. The examiner noted that the Veteran underwent extensive cardiac workups which were essentially negative. The Veteran did not require continuous medications to treat his symptoms.

VA treatment records during the period on appeal show document syncope associated with lightheadedness.

The Veteran repeatedly denied a history of seizures.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's syncope disability. The evidence does not show that the Veteran has had 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months warranting a higher 20 percent rating.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating higher than 10 percent. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch, supra.

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Azizi, T.

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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