Tyra K. Mitchell v. Eric K. Shinseki ( 2011 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 09-2169
TYRA K. MITCHELL, APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE .
On Appeal from the Board of Veterans' Appeals
(Argued June 15, 2011 Decided August 23, 2011)
Louis L. Campbell, of Palo Alto, California, with whom Ronald L. Smith, of Washington,
D.C., was on the brief for the appellant.
Brent A. Bowker, with whom William A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; Kenneth A. Walsh, Deputy Assistant General Counsel; and Millicent
Gompertz, Appellate Attorney, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and MOORMAN, and SCHOELEN, Judges.
SCHOELEN, Judge: The appellant, Tyra K. Mitchell, appeals through counsel a
February 12, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial
disability rating in excess of 10% for residuals of reconstructive surgery of the anterior cruciate
ligament (ACL) of the left knee. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). The issue before the panel is whether pain, by itself, throughout a joint's range of motion
constitutes a functional loss entitling the appellant to a higher disability rating under VA regulations.
The Court holds that pain alone does not constitute a functional loss under VA regulations that
evaluate disability based upon range-of-motion loss. But, because the Board erroneously relied upon
a VA medical examination that did not adequately address whether the pain resulted in a functional
loss in this case, the Court will vacate the February 12, 2009, Board decision and remand the matter
for readjudication consistent with this decision.
I. FACTS
The appellant served on active duty from October 1988 to April 1991 in the U.S. Navy, and
from December 2006 to March 2007 in the U.S. Air Force Reserves. Record of Proceedings (R.)
at 4, 351, 665. In June 2005, during a period of inactive duty for training, the appellant "felt
something pop," her left knee "buckled," and she collapsed in pain. R. at 91, 229. A medical
examination diagnosed a "[t]orn ACL and [a] torn anterior aspect of the lateral meniscus"; on
August, 16, 2005, the appellant underwent reconstructive surgery to repair the tears. R. at 214, 219-
20. In December 2005, the appellant submitted a claim for disability compensation for residuals of
the reconstruction. R. at 350-65. A January 2006 VA compensation and pension (C&P) examination
documented the appellant's complaints of "intense pain with standing, walking, and with certain
movements" that affected her employment as a security guard and other daily activities. R. at 335.
The examiner also noted "limited range of motion of the left knee – extension is to 0 degrees, flexion
passively is to 100 degrees without pain, active flexion is to 115 degrees with pain." R at 336. The
normal range of motion for the knee is from 0 degrees for extension to 140 degrees for flexion. See
38 C.F.R. § 4.71, Plate II (2011).
After initially denying her claim, the VA regional office (RO) granted the appellant's claim
on April 21, 2006, with a disability evaluation of 10%, effective December 28, 2005. R. at 141-44,
324-30. Referencing 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5257-5014 (R. at 143), the RO
assigned a 10% disability evaluation "because [the appellant] ha[d] painful and limited motion of
a major joint" (R. at 142). A 20% disability evaluation was not warranted, the decision stated,
because flexion was not limited to 30 degrees or extension to 15 degrees. Id. The appellant filed
a Notice of Disagreement in June 2006, seeking a higher disability rating. R. at 133. Another C&P
examination in October 2006 found the range of motion in her left knee had decreased to 90 degrees
of flexion and lacked 5 degrees of full extension; the examiner noted that "[a]ll of these motions
appeared to be painful." R. at 65. The VA examiner further noted "tenderness and swelling along
the lateral joint line" but also observed that "[t]he range of motion noted above is not additionally
limited following repetitive use." Id. The RO continued the denial of the appellant's claim, and the
appellant appealed to the Board. R. at 49-50, 53.
2
On February 12, 2009, the Board issued the decision currently on appeal, denying the
appellant's claim for a disability evaluation in excess of 10% for residuals of reconstruction of her
left knee ACL. R. at 3-14.1 The Board first noted that the appellant received her 10% disability
rating based upon evaluation under 38 C.F.R. § 4.71a, DC 5257-5014, and that DC 5014 refers to
osteomalacia, which, in turn, "is to be rated on limitation of motion of affected parts, as arthritis,
degenerative" under DC 5003. R. at 8.2 The Board then evaluated the claim under 38 C.F.R.
§ 4.71a, DCs 5003, 5260, and 5261.3 R. at 5-6. The Board found that the appellant's range of
motion did not warrant a compensable rating under DC 5260 or DC 5261 and that 10% was the
appropriate rating for painful motion under DC 5003.4 R. at 6-9. Furthermore, the Board found that
even considering functional impairment "due to such factors as pain on motion, weakened
movement, excess fatigability, diminished endurance, or incoordination," an evaluation greater than
10% was not warranted. Id. (citing 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59, and DeLuca v. Brown,
8 Vet.App. 202 (1995)). This appeal followed.
1
In this decision, the Board also remanded for further Agency adjudication the appellant's
disagreement with the initial assignment of a December 28, 2005, effective date. R. at 12-14. As
such, that issue is not before the Court.
2
When a condition is not listed in the VA disability schedule, such as residuals from ACL
surgery in this case, "VA may undertake rating by analogy where the disability in question is
analogous in terms of the functions affected, the anatomical localization, and the symptomatologies
of the ailments." Vogan v. Shinseki, 24 Vet.App. 159, 161 (2010); see 38 C.F.R. § 4.20 (2011).
3
Under DC 5260, which is based on the degree of flexion of the leg, a (maximum) 30%
disability rating is permitted when the flexion is limited to 15 degrees, 20% when limited to 30
degrees, 10% when limited to 45 degrees, and 0% when limited to 60 degrees. Conversely, under
DC 5261, when extension is limited to 45 degrees, it is rated at (the maximum disability rating of)
50%, a limitation to 30 degrees is rated at 40%, 20 degrees at 30%, 15 degrees at 20%, 10 degrees
at 10%, and, finally, 5 degrees at 0%. DC 5003 will be discussed in detail below.
4
At oral argument, the appellant's counsel expressed the belief that the appellant was not rated
under DC 5003, but simply under DCs 5260 and 5261. This, however, was not the case. See R. at
9.
3
II. THE PARTIES' ARGUMENTS
A. Initial Briefing
On appeal to this Court, the appellant argued that the Board's decision must be reversed and
the appellant awarded the maximum disability ratings under DCs 5260 and 5261: 30% and 50%,
respectively. Appellant's Brief (Br.) at 10. The appellant contends that because she experiences pain
throughout the entire range of motion of her left leg, and because that painful motion is deemed to
be limited motion (even absent further limitation of range of motion), the motion of her left knee
should be considered completely limited, and she should receive the disability ratings for maximum
limitation under the DCs. Id. at 8-9. Thus, she asserts that painful motion is the equivalent of
limited motion, which the appellant also refers to as "functional limitation" and "functional loss."
See id. at 1, 8-9. For the proposition that painful motion should be considered limited motion, the
appellant relies principally on the statements from Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991),
and Hicks v. Brown, 8 Vet.App. 417 (1995). Although the appellant recognizes that in these cases
the Court originally equated painful motion with limited motion in the context of arthritis evaluations
under DC 5003, she argues that the Court has since extended the principle to cases involving
evaluations under other DCs. Appellant's Br. at 9.
The Secretary responds, first, that the range of motion tests performed during the C&P
examinations demonstrate that the appellant's left knee motion is not limited enough to qualify for
a compensable disability rating under DCs 5260 or 5261. Secretary's Br. at 7-8. Addressing the
appellant's arguments, the Secretary contends that the Court's statement – that painful motion is
limited motion – is confined to the context of arthritis evaluations, and the appellant has not been
diagnosed with arthritis. Id. at 8. He also argues that the appellant misconstrues the cases she cites
to support her argument that this Court has applied the principle to nonarthritis cases, or those cases
are distinguishable from this one. Id. at 9. Next, although the appellant's initial argument is not
premised on DeLuca, supra, the Secretary asserts that the Board complied with the case, which
stands for the proposition that "functional loss due to pain must specifically note the limitation of
motion and the extent of pain on motion." Id. at 10. Finally, the Secretary argues that reversal is
inappropriate because, whatever the Court decides, there is more than one permissible view of the
evidence. Id. at 10-11.
4
In her reply brief, the appellant challenges the Secretary's characterization of the caselaw she
relies on. First, she argues that the reasoning of the cases in which the Court initially equated painful
motion with limited motion is not limited to arthritis cases and that the Secretary has not adequately
explained why it should be so limited. Reply Br. at 1. The appellant also contends that the
Secretary's discussion of the cases that she asserts extend the principle outside of the arthritis context
is incomplete and "ignor[es] the portions of their holdings focusing on painful motion." Id. at 1-3.
B. Supplemental Briefing
On April 26, 2011, the Court, noting the parties' divergent concepts of what constitutes
functional loss, ordered the parties to submit supplemental briefs addressing the following questions:
Does any pain throughout a body part's range of motion constitute a "functional loss"
that is compensable under the VA disability system, or must there be a certain
threshold degree of pain (e.g., moderate pain or severe pain) in order for functional
loss due to pain to arise? If functional loss must be based on some degree of pain
(e.g., moderate pain or severe pain), must that degree be objectively evaluated, and
if so, how?
In response, the appellant states that "any" pain throughout a body part's range of motion is
not sufficient to constitute compensable, functional loss. Appellant's Supplemental (Supp.) Br. at
2-4. Rather, VA regulations establish that functional loss results when pain "reduce[s] normal
excursion,[5] strength, speed, coordination, or endurance." Id. at 4. Moreover, according to the
appellant, a subjective assertion of pain by a claimant and subjective descriptions of pain by an
examiner (e.g., slight, moderate, or severe) are insufficient to constitute functional loss; pain must
be objectively "'supported by adequate pathology'" and confirmed by "'visible behavior of the
claimant undertaking the motion.'" Id. at 5, 6, 7 (quoting 38 C.F.R. § 4.40).
Thus, the appellant asserts that "[e]xcursion that causes [objectively verified] pain constitutes
functional loss of motion." Id. at 5. Once pain is objectively established and "crosses the VA-
established threshold" that denotes functional loss, the "examiner must then determine the exact
point at which pain first sets in within the presumed normal range of motion for the affected joint."
5
Excursion is the "movement[ ] occurring from a normal, or rest, position of a movable part
in performance of a function." DORLAND 'S ONLINE ILLUSTRATED MEDICAL DICTIONARY (31st ed.
2007), available at http://www.dorlands.com/wsearch.jsp.
5
Id. at 6 (citing Hicks, 8 Vet.App. at 421). Thereafter, "the adjudicator then must apply the rating
schedule to the facts based on the point within the arc of motion at which the veteran first
experiences pain." Id. at 6-7. Under the appellant's view of her October 2006 VA examination,
because there is objective evidence that she experienced pain throughout the range of motion, she
experienced a functional loss throughout the entire range of motion.
The Secretary agrees that functional loss must be objectively supported by adequate
pathology and visible behavior. Secretary's Supp. Br. at 9. He also agrees that "pain on motion does
constitute functional loss that is compensable under the VA disability system." Id. at 8. However,
in his view, compensation for such pain (whether arthritic or nonarthritic) is limited to 10% per joint
when there is "no actual or compensable limitation of motion." Id. at 2 (citing 38 C.F.R. § 4.59), 3,
8. Otherwise, the Secretary contends, painful motion, without loss of range of motion, does not
equate to a functional loss, and he categorically rejects the appellant's assertion that pain throughout
the range of motion, without any limitation on range of motion, entitles her to maximum disability
ratings under DCs 5260 and 5261. Id. at 6-7. He also argues that the appellant's position would
create absurd results, in some cases permitting claimants with slight pain but no limitation of a joint's
range of motion to obtain a disability rating higher than the rating assigned to a claimant with actual
limitation on range of motion. Id. at 7-8.
III. ANALYSIS
The VA disability rating schedule contains several provisions that relate to functional loss
in the musculoskeletal system, which this Court has previously addressed; but here these must be
put into a relational context.
A. Functional Loss of the Musculoskeletal System Under VA Regulations & Caselaw
"VA's rating schedule is constructed for the purpose of establishing levels of disability for
compensation purposes based upon 'average impairment in earning capacity' resulting from particular
injuries or diseases." Hensley v. Brown, 5 Vet.App. 155, 162 (1993) (quoting 38 U.S.C. § 1155);
see also 38 C.F.R. § 4.1 (2011) ("The percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity resulting from such diseases and injuries and
their residual conditions in civil occupations."). Because "[t]he basis of disability evaluations is the
6
ability of the body as a whole [or its parts] . . . to function under the ordinary conditions of daily
life," the VA rating schedule recognizes that disability "evaluations are based upon lack of
usefulness[ ] of these parts." 38 C.F.R. § 4.10 (2011).
Section 4.40 of the regulations addresses disability ratings for the musculoskeletal system,
and specifically defines "functional loss":
Disability of the musculoskeletal system is primarily the inability, due to
damage or infection in parts of the system, to perform the normal working
movements of the body with normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which ratings are based adequately
portray the anatomical damage, and the functional loss, with respect to all these
elements. The functional loss may be due to absence of part, or all, of the necessary
bones, joints and muscles, or associated structures, or to deformity, adhesions,
defective innervation, or other pathology, or it may be due to pain, supported by
adequate pathology and evidenced by the visible behavior of the claimant
undertaking the motion. Weakness is as important as limitation of motion, and a part
which becomes painful on use must be regarded as seriously disabled.
38 C.F.R. § 4.40 (2011) (emphasis added). The first sentence of section 4.40 describes the possible
manifestations of functional loss: decreased or abnormal excursion, strength, speed, coordination,
or endurance. The second sentence announces the imperative that the medical examination express
functional loss "with respect to all these elements." The third sentence shifts focus and announces
some of the potential causes of functional loss: missing bones or muscles, deformity, defective
innervation, or pain. Pain is therefore considered a cause, and not simply a manifestation, of
functional loss: "The functional loss . . . may be due to pain. . . . ." (emphasis added). "Due to"
means "caused by or ascribable to"; "because of; owing to." NEW OXFORD AMERICAN DICTIONARY
536 (3d ed. 2010). Thus, the plain language of the regulation is unambiguous that, although pain
may cause a functional loss, pain itself does not constitute functional loss.
Section 4.45 expounds upon the concept of functional loss as it specifically relates to the
joints. The section begins with the declaration that: "[a]s regards the joints[,] the factors of disability
reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45(2011). It then states that six factors are important in evaluating the disability of a joint: Less or
more movement than is normal; weakened movement; excess fatigability; incoordination; and pain
on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and
7
weight-bearing. Id. Noticeably, the aspects of functional loss listed in § 4.40 closely parallel the
factors listed in § 4.45. Compare 38 C.F.R. § 4.40 (listing excursion, strength, speed, coordination,
and endurance), with 38 C.F.R. § 4.45(a)-(f) (listing extent of movement, weakened movement,
fatigability, incoordination, pain on movement affecting excursion). Thus, as the Court noted in
Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991), "[s]ections 4.40 and 4.45 together . . . make
clear that pain must be considered capable of producing compensable disability of the joints." When
the Court continued, stating that "functional loss due to pain is to be rated at the same level as the
functional loss where flexion is impeded," id., it was making the logical, if not obvious, observation
that a functional loss caused by pain must be rated at the same level as if that functional loss were
caused by some other factor (e.g., deformity, adhesion, atrophy, tendon-tie-up, see 38 C.F.R. §§ 4.40,
4.45(a)), that actually limited motion.
Though Schafrath announced this rule, the Court addressed the rule more fully and explained
how "functional loss due to pain" should be rated and evaluated in Deluca. In DeLuca, the Court
rejected the Secretary's argument that DCs based upon limitation of range of motion already
"contemplate[d] the functional loss resulting from pain on undertaking motion" or subsumed the
factors listed in 38 C.F.R. §§ 4.40 and 4.45. 8 Vet.App. at 205-06. The Court held that the medical
examination was insufficient because the examiner failed to determine any additional functional loss
resulting from pain, and, in remanding the matter, the Court stated "the medical examiner must be
asked to express an opinion on whether pain could significantly limit functional ability during
flare-ups or when the arm is used repeatedly over a period of time." Id.; see also Cullen v. Shinseki,
24 Vet.App. 74, 84 (2010) (describing DeLuca's holding as "requir[ing] that the disabling effect of
painful motion be considered when rating joint disabilities").
What the foregoing discussion suggests, then, is that pain itself does not rise to the level of
functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.
Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional
loss, but only if it limits the ability "to perform the normal working movements of the body with
normal excursion, strength, speed, coordination[, or] endurance." 38 C.F.R. § 4.40.
The appellant's briefs do not argue that she sustained functional loss from her knee pain based
upon a diminution of strength or endurance or coordination. And at oral argument, the appellant
8
explicitly disclaimed a theory of functional loss on any basis other than the effect of pain on her
knee's range of motion, i.e., excursion. As such, the Court has no occasion to consider functional
loss outside that context. See Woehlaert v. Nicholson, 21 Vet.App. 456, 463 (2007) ("This Court
has consistently held that it will not address issues or arguments that counsel for the appellant fails
to adequately develop in his or her opening brief."); see also Carbino v. West, 168 F.3d 32, 34 (Fed.
Cir. 1999) (considering arguments not raised in opening brief to be waived). We now turn to the
specific argument advanced by the appellant in support of her claim for a higher disability rating.
B. Painful motion alone is not limited motion.
In making her initial argument, the appellant did not rely on (or even mention) DeLuca or
any of the regulations discussed above. Rather, she asserts that she is entitled to the maximum
disability ratings under the DCs 5260 and 5261 because, as she phrases it, "[t]his Court has held
that[ ] 'painful motion . . . is deemed to be limited motion . . . even though there is no actual
limitation of motion.'" Appellant's Br. at 8. Here, the appellant is quoting Lichtenfels, 1 Vet.App.
at 488, and at first blush this statement would appear to support the appellant's argument. But, when
one looks at DC 5003 itself and beyond the appellant's selective quotation of our cases, the Court's
holding in Lichtenfels is narrower than the appellant suggests. Nor has she cited any other case that
supports her argument.
1. Language and Structure of DC 5003
The appellant was assigned a 10% disability rating under DC 5003, which evaluates
degenerative arthritis and provides:
[(1)] 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 (DC 5200 etc.). [(2)] When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10[% ] is for application for each such major joint or
group of minor joints affected by limitation of motion, to be combined, not added
under diagnostic code 5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.
[(3)] In the absence of limitation of motion, rate as below:
With X-ray evidence of involvement of 2 or more major joints or 2 or more
minor joint groups, with occasional incapacitating
exacerbations................................................................................20[%]
9
With X-ray evidence of involvement of 2 or more major joints or 2 or more
minor joint groups........................................................................10[%]
NOTE (1): The 20[% ] and 10[% ] ratings based on X-ray findings, above, will not
be combined with ratings based on limitation of motion.
NOTE (2): The 20[% ] and 10[% ] ratings based on X-ray findings, above, will not
be utilized in rating conditions listed under diagnostic codes 5013 to 5024,
inclusive.
38 C.F.R. § 4.71a, DC 5003. Structurally, DC 5003 is composed of three parts, each of which
addresses how to evaluate arthritic pain in a different situation: (1) When it results in limitation of
motion that is compensable under a DC that rates according to limitation of motion; (2) when it
results in limitation of motion that is noncompensable under a DC that is applicable to the joint
involved; and (3) when it does not result in limitation of motion. See Hicks, 8 Vet.App. at 420.6
A claimant whose degenerative arthritis limits the range of motion of a joint or joints will
be evaluated under the specific DCs applicable to the joint or joints when the limitation is
compensable under those particular codes.7 "When, however, the limitation of motion of the specific
joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10[% ]
is for application for each such major joint or group of minor joints affected by limitation of motion,
to be combined, not added under diagnostic code 5003." 38 C.F.R. § 4.71a, DC 5003 (2011)
(emphasis added). "[H]owever" is an adverb "used to introduce a statement that contrasts with or
seems to contradict something that has been said previously." NEW OXFORD AMERICAN
DICTIONARY 846 (3d ed. 2010). In the context of DC 5003, the word "however" is used to "denote[
] an opposition between two ideas it connects and express[ ] a mutually exclusive alternative."
Bryant v. Standard Life & Accident Ins. Co., 348 F.2d 649, 656 (5th Cir. 1965); accord Styers v.
Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008) ("The court's use of the conjunctive adverb 'however,'
following its acknowledgment that such evidence 'could' in certain cases constitute mitigation,
6
The appellant's condition was rated by analogy to osteomalacia under DC 5014; therefore,
according to "NOTE (2)" of § 4.71a, DC 5003, the criteria listed in DC 5003's third part are
inapplicable. Thus, only the criteria in the first and second parts are potentially relevant to this case.
7
Whether the Board erroneously determined that the limitation of motion in the appellant's
knee did not reach a compensable level under DC 5260 or DC 5261 is a question that the Court
addresses below. For the purposes of this part of the analysis, it is assumed that such a determination
was correct.
10
indicates that this was not such a case."); Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1379-80
(Fed. Cir. 2003) (Schall, J., dissenting) ("[The statement] uses the word "however," suggesting that
the configuration is an alternative to the configuration described in the preceding paragraph.").
In other words, a noncompensable disability under DCs such as 5260 and 5261 is a
prerequisite for compensation under the second or third parts of DC 5003: only when arthritic pain
does not cause limitation of motion, or causes a limitation of motion that does not rise to a
compensable level, will a 10% rating under DC 5003 be appropriate.
2. Context of the Court's Statements in Lichtenfels and Hicks
At oral argument, as in her briefs (see, e.g., Reply Br. at 1), the appellant asserted that, though
the Court's statement equating painful motion to limited motion was made in the context of an
evaluation of arthritis as shown by x-ray evidence under DC 5003, there is no reason to limit the
statement to that context. We disagree. As a full quotation of the relevant language from Lichtenfels
makes clear, the equivalence of painful motion with limited motion was based on the specific
language and structure of DC 5003.
In interpreting DC 5003 for the first time, the Court in Lichtenfels stated:
Read together, DC 5003, and § 4.59[8] thus state that painful motion of a major joint
or groups caused by degenerative arthritis, where the arthritis is established by x-ray,
is deemed to be limited motion and entitled to a minimum 10[%] rating, per joint,
combined under DC 5003, even though there is no actual limitation of motion.
Id. at 488 (emphasis in original). Only when omitting portions from the Court's statement in
Lichtenfels was the appellant able to formulate what might appear as a general rule applicable to DCs
such as DCs 5260 and 5261. Similarly, in Hicks the Court stated that "DC 5003 and 38 C.F.R.
§ 4.59 deem painful motion of a major joint . . . to be limited motion even though a range of motion
may be possible beyond the point when pain sets in." 8 Vet.App. at 421 (citing Lichtenfels). And
the statement made by the Court in Lichtenfels (and quoted in Hicks) – that painful motion is
considered limited motion – was clearly made in the context of evaluations under the second part
8
In relevant part, § 4.59 recognizes that "[w]ith any form of arthritis, painful motion is an
important factor of disability" and states that "[i]t is the intention [of the rating schedule] to
recognize painful . . . joints, due to healed injury, as entitled to at least the minimum compensable
rating for the joints." (emphasis added).
11
of DC 5003. See, e.g., Lichtenfels, 1 Vet.App. at 487-88 ("Section 4.71a[, DC 5003] first provides
a rating for actual (as opposed to painful) limitation of motion under DC 5200, etc. Since [the
claimant] has no actual limitation of motion, this provision does not apply."); cf. Cross v. Derwinski,
2 Vet.App. 150, 153 (1992) ("Under . . . DC 5003 . . . , arthritis, established by x-ray, is to be rated
at 10% per major joint or groups of joints affected by any limitation of motion, provided that such
limitation is confirmed by satisfactory evidence of painful motion."). Thus, these statements establish
a principle more specific than and quite different from the appellant's simple assertion that painful
motion is deemed limited motion. The Court recognized the equivalency between painful motion
and limited motion in the context of evaluations under DC 5003. No reference was made to other
DCs and nothing was said to suggest that maximum disability ratings were appropriate
compensation.
But even if the principle that "painful motion . . . is deemed to be limited motion" could
reasonably be extracted from Lichtenfels, "general expressions must be taken in the context in which
they were rendered." Douglas v. Shinseki, 23 Vet.App. 19, 25 (2009) (citing Cohens v. Virginia,
6 (Wheat.) U.S. 264, 399-400 (1821) (Marshall, C.J.) ("It is a maxim not to be disregarded, that
general expressions, in every opinion, are to be taken in connection with the case in which those
expressions are used. If they go beyond the case, they may be respected, but ought not to control the
judgment in a subsequent suit when the very point is presented for decision.")). When interpreting
broad judicial statements, care must be taken not to apply them too broadly or without proper
examination of their context. Id.; see also Patton v. West, 12 Vet.App. 272, 280 (1999) (finding
certain "categorical statements" in judicial opinions that dealt with one diagnostic situation to be "not
operative" in addressing another). This is because such statements "are considered in their relation
to the case decided, but their possible bearing on all other cases is seldom completely investigated."
Cohens, 6 U.S. at 400; cf. Lasovick v. Brown, 6 Vet.App. 141, 149 (1994) (recognizing that language
quoted from a particular opinion, "although universal in scope, does not constitute binding precedent
beyond the facts there before the Court").
Now that the current case squarely presents this Court with the argument that painful motion
should be deemed limited motion in the context of DCs 5260 and 5261, the Court must hold that it
should not, and the appellant's reliance on the statement in Lichtenfels is misplaced. The Court in
12
Lichtenfels did equate painful motion with limited motion. 1 Vet.App. at 488. But, as already noted,
the Court made this statement in the context of the second part of DC 5003 and did not apply this
principle in the context of the evaluation under another DC whose evaluation criteria require
limitation of motion. See id. at 487-88. Rather, the Court found that the claimant was entitled to
a rating of 10% under part two of DC 5003, id., which the appellant in this case has already received
(R. at 9). Similarly, in Hicks the Court vacated the Board decision and remanded the matter because
the Board relied upon an inadequate medical examination. See 8 Vet.App. at 421-22. In so doing,
the Court recognized that "DC 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or
groups caused by degenerative arthritis that is established by X-ray evidence to be limited motion
even though a range of motion may be possible beyond the point when pain sets in." Id. at 421. The
appellant in that case, however, was not seeking evaluation under any DC based upon limitation of
motion, and the Court certainly never referred to any in its opinion. Thus, just as in Lichtenfels there
is nothing to suggest that the Court in Hicks was considering the first part of DC 5003 or another DC
when it stated that "painful motion of a major joint . . . [is deemed] to be limited motion."
3. Cases Outside the Context of DC 5003
It should be noted that in Lichtenfels, the Court never uses the phrase "functional loss" or
cites 38 C.F.R. § 4.40 or § 4.45. The Court does cite these regulations in Hicks, but notes only that
they "complement[ ]" DC 5003, 8 Vet.App. at 420-21; the Court does not rely upon them. These
cases, in short, do not support the appellant's position. Nevertheless, the appellant cites two cases
that, she contends, apply the principle that painful motion is limited motion in evaluations under DCs
other than DC 5003. Appellant's Br. at 9; Reply Br. at 1-3. In reply to the Secretary's argument that
these cases are inapposite (Secretary's Br. at 9), the appellant asserts that his "exposition" of those
cases is incomplete (Reply Br. at 1-3). Upon review of the cases, however, it is clear that the
appellant is the one who has misinterpreted their import.
The appellant first mentions Arnesan v. Brown, 8 Vet.App. 432 (1995), but she misconstrues
the Court's analysis. See Reply Br. at 2-3. In Arnesan, the Board had assigned the veteran a 10%
disability rating under DC 5003 after concluding that the veteran was not entitled to a compensable
evaluation under DCs 5260 and 5261. 8 Vet.App. at 439. The Court remanded the matter to the
Board – but did not reverse the decision, which is the relief requested by the appellant in this case
13
– for a clearer statement as to how it found the veteran's flexion of the knee was limited to (the
noncompensable range of) 35 degrees. The Court noted that this degree-of-limitation number was
not specified in the medical evidence and, indeed, was at odds with the range of motion stated by
the medical examiner. See id. at 439-40. The Court also noted that on remand "the Board should
consider the effect of pain on range of motion," citing DeLuca. Arnesan, 8 Vet.App. at 440
(emphasis added). The appellant argues that Arnesan requires that "pain on motion must be
considered in the rating evaluation under DCs 5260 and 5261." Reply at 3. But to the extent she
interprets Arnesan as saying that pain alone requires evaluation under these DCs, she is mistaken.
The Court clearly instructed the Board to consider the effect of pain on range of motion, as required
by 38 C.F.R. §§ 4.40 and 4.45. In no way was the Court in Arnesan conflating the evaluation criteria
under DC 5003 with those under DCs 5260 and 5261. Rather, the Court held that the Board's
analysis under DCs 5260 and 5261 — which found the veteran's limitation of motion to be
noncompensable — was inadequately explained and contrary to DeLuca.
The appellant next relies on Powell v. West, 13 Vet.App. 31 (1999), but this case lends her
no support either. In Powell, the appellant was granted a disability rating of 20% by the Board under
DC 5292, which evaluated limitation of motion of the lumbar spine and provided a 10% disability
rating for "[s]light" limitation, 20% for "[m]oderate," and 40% for "[s]evere." 13 Vet.App. at 33-34
(quoting 38 C.F.R. § 4.71a, DC 5292 (1998) (revised and redesignated by 68 Fed. Reg. 51,454,
51,454-56 (Aug. 24, 2003))). The Court found that the evidence supported the maximum rating,
reversed the Board's decision, and remanded the matter for the assignment of a disability rating of
40%. Id. at 35. The appellant argues that the Court reversed the Board decision because of medical
evidence that noted pain throughout the ranges of motion. Reply Br. at 3. This, the appellant asserts,
was the key factor in the granting of the maximum disability rating. See id. ("Pain on any motion
is thus properly the basis for even the highest rating for limitation of motion."). Again, the appellant
misunderstands the Court's discussion.
First, the presence of pain was only one of several factors that led the Court to reverse the
Board's decision. See Powell, 13 Vet.App. at 34 ("Therefore, due to the specific portrayal of severity
provided by the . . . examinations, the absence of contradiction in the later examinations, the reduced
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ranges of motion, and the notation of pain throughout the ranges of motion in the . . . examinations,
a reversal of the May 1998 decision is appropriate, with remand to assign a 40% evaluation . . . .").
Of greater import to the Court, no doubt, were the examination reports that "twice diagnosed the
veteran with [i]ntervertebral disc syndrome with severe limitation of motion," i.e., the precise criteria
specified in the now-defunct DC 5292. Id. at 33 (internal quotation marks omitted; bracket and
emphasis in original). Pain throughout motion, therefore, was one of the factors that supported the
medical diagnosis of "severe limitation of motion," but it was not "the basis for . . . the highest rating
for limitation of motion" as the appellant asserts (Reply Br. at 3).9 Second, and more importantly,
the veteran in Powell presented evidence that the range of motion of his spine was severely limited,
as required by the relevant DC. In the present case, the appellant is not arguing that the range of
motion of her knee is limited (also as required by the relevant DCs); she is merely arguing that the
range of motion is painful. It may be unclear how necessary the presence of painful motion was to
the Powell Court's decision to reverse and award the maximum disability rating, but we see no
indication that the Court deemed pain alone sufficient for such a disposition.
4. Absurd Results of the Appellant's Argument
The Secretary argues that the appellant's argument leads to absurd results. Secretary's Supp.
Br. at 7. The Court agrees. For example, the Secretary notes that under the appellant's interpretation,
a claimant who experiences very slight pain throughout the range of motion of the knee would
receive a 50% disability rating under DC 5260 and a 30% disability rating under DC 5261, whereas
a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to
20 degrees would only receive disability ratings of 30% and 20% respectively. Id. We have
recognized the affirmative duty to avoid a literal interpretation of regulatory language that would
produce "an illogical and absurd result." Zang v. Brown, 8 Vet.App. 246, 252-53 (1995); see also
Buie v. Shinseki, 24 Vet.App. 242, 250 (2010) (per curiam). And when an interpretation, such as the
9
VA has since amended this DC (replacing rating criteria such as "slight" and "severe") "to
ensure that [the provision] uses current medical terminology and unambiguous criteria." 68 Fed. Reg.
at 51,454. The appellant's concession that such terms are subjective and impermissible under the
regulations at issue in the current case (see Appellant's Supp. Br. at 6), renders the analysis in Powell
even more inapplicable.
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appellant's, is not compelled by the language of the regulation, is not supported by caselaw, and has
absurd effects, it must be firmly rejected.
In sum, nothing in this Court's caselaw supports the appellant's contentions that she should
be given the maximum disability ratings under DCs 5260 and 5261simply because she experiences
pain throughout the range of motion of her left knee. The appellant has attempted to put more
weight on our statement in Lichtenfels than the language will bear, and the Secretary has persuasively
argued that such an interpretation would lead to absurd results. This reaffirms the conclusion stated
by the Court in part III.A, supra, "that pain itself does not rise to the level of functional loss as
contemplated by the VA regulations applicable to the musculoskeletal system." Reaffirming that
pain must affect some aspect of "the normal working movements of the body" such as "excursion,
strength, speed, coordination, and endurance," 38 C.F.R. § 4.40, in order to constitute functional loss,
the Court must determine whether the VA examination undergone by the appellant as part of her
claim for a higher disability rating adequately evaluated her disability condition.
C. Duty To Assist
The Board found that VA fulfilled its duty to assist the appellant in the development of her
claim, specifically noting the C&P examinations she was provided. R. at 11. VA however does not
necessarily discharge its duty to assist by conducting a medical examination; the examination must
be adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also
Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate
examination report). Whether a medical opinion is adequate – and consequently, whether the
Secretary complied with his duty to assist – are factual determinations by the Board, which the Court
reviews under the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake,
22 Vet.App. 97, 104 (2008); Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (per curiam order). In
the present case, the Court finds that the Board's implicit finding that the October 2006 medical
opinion was adequate for rating purposes and its finding that duty to assist was satisfied are clearly
erroneous.
Specifically, in the context of examinations evaluating functional loss in the musculoskeletal
system under DCs based upon limitation of motion, DeLuca stands for the proposition that when
pain is associated with movement, to be adequate for rating purposes an examination must "compl[y]
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with the requirements of § 4.40, and the medical examiner must be asked to express an opinion on
whether pain could significantly limit functional ability during flare-ups or when the arm is used
repeatedly over a period of time." 8 Vet.App. at 206. Such "determinations should, if feasible, be
'portray[ed]' . . . in terms of the degree of additional range-of-motion loss due to pain on use or
during flare-ups." Id. (quoting § 4.40). As described below, the October 2006 examiner did not
provide this information, or otherwise explain why such detail feasibly could not be determined,
rendering his report inadequate for rating purposes.
The examiner found that the appellant "lacked 5 degrees of full extension and that she could
flex to 90 degrees," but noted that this range of motion "[was] not additionally limited following
repetitive use." R. at 65. Were there no complaints of pain on motion from the appellant, the report
likely would be adequate for rating purposes. But the examiner noted twice in the physical
examination results that the appellant was experiencing pain throughout the range of motion of her
left knee. Id. ("All motions of her left knee were painful. . . . All of these motions appeared to be
painful."). Although the examiner noted no additional limitation after repetitive use, the examiner
made no initial finding as to the degree of range-of-motion loss due to pain on use, as required by
DeLuca. Thus, it is unclear from the examiner's notation regarding the appellant's range of motion
on flexion and extension of her leg whether and at what point during the range of motion the
appellant experienced any limitation of motion that was specifically attributable to pain. It is
important for the medical examiner to note this information so that the VA rating official can have
a clear picture of the nature of the veteran's disability and the extent to which pain is disabling. This
will allow the Board to ensure that the disabling effects of pain are properly considered when
evaluating any functional loss due to pain that is attributable to the veteran's disability.
Morever, the October 2006 medical opinion is inadequate for disability rating evaluation
because the examiner did not discuss whether any functional loss was attributable to pain during
flareups, despite noting the appellant's assertions that her knee "does flare up approximately two to
three times per month," and that "[t]he flare-ups last approximately one day" and cause her
"difficulty getting around." R. at 65. When discussing the appellant's functional loss during
flareups, the Board should request the examiner to provide the detail required by DeLuca or explain
why this information could not feasibly be provided.
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Because the examiner failed to address any range-of-motion loss specifically due to pain and
any functional loss during flareups, the examination lacks sufficient detail necessary for a disability
rating, and it should have been returned for the required detail to be provided, or the Board should
have explained why such action was not necessary. See Bowling v. Principi, 15 Vet.App. 1, 12
(2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence
or clarification of the evidence . . . is essential for a proper appellate decision"); 38 C.F.R. § 4.2(2011) ("[I]f the report does not contain sufficient detail, it is incumbent upon the rating board to
return the report as inadequate for evaluation purposes."); 38 C.F.R. § 19.9 (2011) (permitting
remand for further development).
Inasmuch as the October 2006 medical report relied on by the Board was inadequate for
rating purposes, the Board's finding that the duty to assist was satisfied is clearly erroneous.
Accordingly, remand is warranted. Hicks, 8 Vet.App. at 421 (holding that Board's reliance on
inadequate medical examination cause for remand).
IV. CONCLUSION
Upon consideration of the foregoing, the February 12, 2009, Board decision is VACATED
and the matter is REMANDED for further adjudication consistent with this decision.
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