Frazier v. McDonough

Case: 22-1184 Document: 34 Page: 1 Filed: 05/05/2023
United States Court of Appeals
for the Federal Circuit
______________________
JEANINE FRAZIER,
Plaintiff-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1184
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7587, Judge Grant Jaquith.
______________________
Decided: May 5, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for plaintiff-appellant.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, BRIAN D. GRIFFIN, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 22-1184 Document: 34 Page: 2 Filed: 05/05/2023
2 FRAZIER v. MCDONOUGH
Before DYK, BRYSON, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge BRYSON.
Concurring opinion filed by Circuit Judge DYK.
BRYSON, Circuit Judge.
Appellant Jeanine Frazier brought this appeal as a
substituted appellant for her deceased father, Clarence
Frazier, a veteran. She is seeking accrued benefits that she
claims were due to Mr. Frazier. She challenges the
decision of the Court of Appeals for Veterans Claims (“the
Veterans Court”) that Mr. Frazier was not entitled to
compensation for the residual effects of injuries to two of
his fingers. We affirm the decision of the Veterans Court.
I
Mr. Frazier served on active duty in the United States
Navy from June 1988 to April 1993. In 2008, after his
retirement, Mr. Frazier fractured the fourth and fifth
fingers of his right hand when he ran into a television set
after being startled from a nightmare. J.A. 91. Such
nightmares, according to Mr. Frazier, occurred frequently
due to post-traumatic stress disorder (“PTSD”), a disability
for which Mr. Frazier had previously been awarded service
connection. J.A. 65. In December 2010, Mr. Frazier filed a
claim with the Department of Veterans Affairs (“DVA”),
asserting that the injury to his fingers was secondary to his
service-connected PTSD. Id. In his submissions to the
DVA regarding that claim, Mr. Frazier explained that
following his injury in 2008 he had trouble bending his
fingers and experienced joint pain in those fingers. Id.
The DVA regional office denied Mr. Frazier’s claim,
finding that the injury to his fingers was not related to his
service. J.A. 77–78. Mr. Frazier appealed that decision to
the Board of Veterans’ Appeals, which remanded his claim
to the regional office in January 2016 for further
development of the record. J.A. 168–80.
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FRAZIER v. MCDONOUGH 3
Mr. Frazier subsequently underwent a DVA medical
examination. During that examination, he reported that
he had “flare-ups” in which he would have “difficulty
holding objects” and moving his fourth and fifth fingers.
J.A. 196. The examining physician noted that Mr. Frazier
experienced pain in his right hand. The physician added,
however, that the pain “does not result in/cause functional
loss,” that the range of motion in Mr. Frazier’s right hand
was “all normal,” that his hand strength was normal, and
that his finger joints showed no signs of ankylosis. 1 J.A.
197–98, 202–03. The physician also expressed the opinion
that the injury to Mr. Frazier’s fingers was secondary to his
service-connected PTSD. J.A. 186–87.
In May 2018, the Board granted Mr. Frazier service
connection for the injury to his fingers, J.A. 224, but the
regional office on remand assigned Mr. Frazier a non-
compensable rating for that injury, J.A. 234–35. The
regional office evaluated Mr. Frazier’s injury under
Diagnostic Code 5230, which covers “[a]ny limitation of
motion” to the ring or little finger but provides a zero
percent rating for that condition. 38 C.F.R. § 4.71a, DC
5230; J.A. 235–36. Mr. Frazier appealed the regional
office’s rating decision to the Board, which affirmed the
rating decision. J.A. 304–09.
Mr. Frazier appealed the Board’s decision to the
Veterans Court. He contended that he was entitled to a
compensable rating of 10 percent under 38 C.F.R. § 4.59.
That regulation provides, in pertinent part:
The intent of the schedule is to recognize painful
motion with joint or periarticular pathology as
productive of disability. It is the intention to
recognize actually painful, unstable, or malaligned
1 “Ankylosis” refers to immobility and consolidation of
a joint due to disease, injury, or surgical procedure. J.A. 3.
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4 FRAZIER v. MCDONOUGH
joints, due to healed injury, as entitled to at least
the minimum compensable rating for the joint.
Because he experienced pain in his fourth and fifth fingers,
Mr. Frazier argued that section 4.59 entitled him to “at
least the minimum compensable rating for the joint.” He
based that claim on Diagnostic Codes 5219 and 5223, which
provide 20 percent and 10 percent ratings, respectively, for
unfavorable and favorable ankylosis of the ring and little
fingers. 38 C.F.R. § 4.71a, DC 5219, 5223.
The Veterans Court affirmed the Board’s decision. The
court rejected Mr. Frazier’s argument that he was entitled
to a 10 percent rating based on Diagnostic Codes 5219 and
5223. The court noted that the Board had expressly found
that the fingers of Mr. Frazier’s right hand were not fixed
in favorable or unfavorable ankylosis, which are the
conditions covered by Diagnostic Codes 5219 and 5223.
J.A. 5. Instead, the court held, the Board properly focused
on Diagnostic Code 5230, which covers limitations of
motion in the ring or little fingers. In analyzing the
application of section 4.59 to a condition covered by
Diagnostic Code 5230, the court relied on its prior decision
in Sowers v. McDonald, 27 Vet. App. 472 (2016), the facts
of which are nearly identical to the facts of this case. J.A.
6.
In Sowers, the Veterans Court held that a veteran who
experienced pain in his fingers but was awarded a non-
compensable rating under Diagnostic Code 5230 was not
entitled to a 10 percent rating under 38 C.F.R. § 4.59. 27
Vet. App. at 482. In so holding, the court in Sowers
explained that Diagnostic Code 5230 provides for a zero
percent rating for limitations of motion in the little or ring
fingers, and that section 4.59 does not “create a
freestanding painful motion disability that is always
entitled to a 10% disability rating.” Id. Following Sowers,
the Veterans Court held that because Mr. Frazier did not
have “any ankylosis related to his fingers disability,” it
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FRAZIER v. MCDONOUGH 5
would be “illogical” to use section 4.59 to award a minimum
compensable rating based on the diagnostic codes
concerning ankylosis of multiple joints. J.A. 6. This appeal
followed.
II
We must affirm the decision of the Veterans Court
unless it is “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B)
contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right; or (D)
without observance of procedure required by law.” 38
U.S.C. § 7292(d)(1). Our review is limited to challenges to
the “validity of any statute or regulation or any
interpretation thereof . . . , and to interpret constitutional
and statutory provisions, to the extent presented and
necessary to a decision.” Id. § 7292(c).
A
Before the Veterans Court, Mr. Frazier argued that the
two diagnostic codes for ankylosis of the ring and little
fingers, Diagnostic Codes 5219 and 5223, “should have
been applied when considering whether a compensable
rating was available ‘for the joint’ pursuant to section
4.59.” Appellant’s Br. 7, Frazier v. Wilkie, No. 19-7587
(Vet. App. June 2, 2020). Both of those diagnostic codes
have minimum compensable ratings greater than zero.
Before this court, Ms. Frazier frames her argument
somewhat differently. She does not argue that Diagnostic
Code 5230 was the wrong diagnostic code for Mr. Frazier’s
disability. Instead, she claims that even for a condition
clearly falling under Diagnostic Code 5230, section 4.59 of
the regulations contains a freestanding requirement for
the DVA to grant at least a 10 percent rating for any
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6 FRAZIER v. MCDONOUGH
service-connected joint condition that is associated with
pain. 2
Ms. Frazier relies on the statement in section 4.59 that
the “intent of the schedule” is to recognize joint pain “as
productive of disability,” and therefore “entitled to at least
the minimum compensable rating for the joint.” 38 C.F.R.
§ 4.59. Based on that language, she argues that section
4.59 requires at least a 10 percent compensable rating for
a painful joint injury if there is at least a 10 percent rating
under any diagnostic code applying to any injury to that
joint or joints. That means that Mr. Frazier’s injury to his
fourth and fifth fingers would be entitled to at least a 10
percent compensable rating because that is the “minimum
compensable rating” for any injury to those joints,
including injuries rated under diagnostic codes that have
no application to Mr. Frazier’s condition. In pressing that
argument, Ms. Frazier urges this court to repudiate the
Veterans Court’s decision in Sowers.
When construing a regulation, we begin with “the
regulatory language itself to determine its plain meaning.”
Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017).
In addition, we are required to “carefully consider the text,
structure, history, and purpose of a regulation” when
determining its meaning. Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (cleaned up). For several reasons, those
principles lead us to agree with the interpretation of
section 4.59 that the Veterans Court adopted in Sowers and
applied in this case.
1. The text, structure, and purpose of the DVA’s
regulations indicate that section 4.59 is intended to be read
2 The government has not argued that Ms. Frazier has
waived her present argument on the ground that it was not
raised before the Veterans Court, so we do not address the
issue of waiver.
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FRAZIER v. MCDONOUGH 7
in conjunction with the diagnostic code applicable to a
particular case. In 38 C.F.R. § 4.21, the Secretary of
Veterans Affairs has made clear that a veteran’s disability
rating should be coordinated with the veteran’s
“impairment of function . . . in all instances.” The DVA has
provided for flexibility in the rating schedule by allowing
for “extraschedular” ratings in cases in which “application
of the regular schedular standards is impractical because
the disability is . . . exceptional or unusual.” Id.§ 3.321(b)(1). Similarly, sections 4.21 and 4.27 of the DVA
Schedule for Rating Disabilities provide for rating by
analogy and the creation of a custom diagnostic code
“[w]hen an unlisted condition is encountered.” Id. § 4.21;
id. § 4.27 (which applies “[w]hen an unlisted disease,
injury, or residual condition is encountered”).
By contrast, the language of section 4.59 is not
addressed to situations in which the injury in question
lacks an appropriate diagnostic code. Rather, it applies to
injuries that fall within particular diagnostic codes but are
accompanied by pain. We therefore read section 4.59 as
applying in conjunction with the appropriate diagnostic
code for a particular condition and requiring reference to
that diagnostic code to determine the minimum
compensable rating for the injury in question. 3
2. Ms. Frazier points out that section 4.59 refers to “the
minimum compensable rating for the joint.” 38 C.F.R.
3 At the oral argument in this appeal, counsel for Ms.
Frazier argued that in cases in which a veteran’s condition
would be compensable under a particular diagnostic code
for that condition, section 4.59 operates to add at least an
additional 10 percent compensation under that diagnostic
code when painful motion is present. See Oral Arg. at
13:03–14:16. That argument, although unpersuasive, sug-
gests a recognition that section 4.59 must be read in con-
junction with the rating schedule.
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8 FRAZIER v. MCDONOUGH
§ 4.59 (emphasis added). Broadly construed, that language
could be understood to mean that if a diagnostic code
provides only a zero percent rating for a particular
condition, the veteran may nonetheless be entitled to
compensation under another diagnostic code that applies
to the same joint. For example, although Diagnostic Code
5230 does not provide a compensable rating for limitation
of movement of the fourth and fifth fingers, the language
of section 4.59 could be read to entitle the veteran to
compensation under Diagnostic Code 5223, which provides
a compensable rating of 10 percent for “favorable
ankylosis” of those two fingers. 38 C.F.R. § 4.71a. The
same could be said for Diagnostic Codes 5155 and 5156,
each of which provides a 10 percent rating for amputation
of the fourth and fifth fingers, respectively. Id.The problem with that argument, as the Veterans
Court in Sowers pointed out, is that reading section 4.59
that broadly would create an “absurd result” in which “an
individual with only slight pain and occasional stiffness” in
a finger “would be rated on par with an individual whose
finger was amputated.” 27 Vet. App. at 482. Constructions
of statutes and regulations that lead to anomalous results
are “to be avoided if at all possible.” Pitsker v. Off. of Pers.
Mgmt., 234 F.3d 1378, 1383 (Fed. Cir. 2000); see also Smith
v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (noting that
the canons of statutory construction also apply to
regulations). That consequence counsels against adopting
Ms. Frazier’s interpretation of section 4.59.
3. The Secretary’s interpretation of section 4.59 is not
only reasonable but is consistent with the interpretation of
section 4.59 applied by the DVA both prior to and since the
Veterans Court’s decision in Sowers. In a 2014 brief filed
with the Veterans Court, the Secretary argued that
“section 4.59 does not create a free-standing avenue for
compensable ratings solely based on pain.” Appellee’s Br.
9, Petitti v. Gibson, No. 13-3469 (Vet. App. June 16, 2014).
Instead, the Secretary argued, “section 4.59 is a guide to
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FRAZIER v. MCDONOUGH 9
interpreting the rating schedule with respect to painful
motion,” and thus it “must be read in conjunction with the
rating schedule.” Id. The 2015 version of the DVA’s
Adjudication Procedures Manual likewise indicates that
section 4.59 was intended to be read in conjunction with,
and not separately from, the applicable diagnostic codes. 4
See U.S. Dep’t of Veterans Affairs, M21-1 Adjudication
Procedures Manual § III.iv.4.A.1.f (May 11, 2015). To the
extent that the language of the Secretary’s regulation is
genuinely ambiguous, deference must be accorded to the
Secretary’s interpretation of that language, which is
reasonable and, as the DVA’s consistent interpretation of
section 4.59 for at least the last nine years, reflects the “fair
and considered judgment” of the agency. See Kisor, 139 S.
Ct. at 2415–18.
4. In circumstances in which the rating schedule
intends to allow for consideration of other diagnostic codes
in a rating decision, it does so straightforwardly. For
example, Diagnostic Code 5227, which applies to
“ankylosis” of the fourth or fifth finger, instructs the rating
agency to “consider whether evaluation as amputation is
warranted and whether an additional evaluation is
warranted for resulting limitation of motion of other digits
or interference with overall function of the hand.”
4 A later version of the manual suggests that the posi-
tion taken by the Secretary in Sowers represented a
“change in longstanding VA policy in which the minimum
compensable evaluation was interpreted as a 10-percent
evaluation irrespective of the [diagnostic code] involved.”
U.S. Dep’t of Veterans Affairs, M21-1 Adjudication Proce-
dures Manual § V.iii.1.A.1.g (Nov. 5, 2021). In context,
that statement is best understood as referring specifically
to Diagnostic Code 5201, which contains a minimum com-
pensable rating of 20 percent for a limitation of motion of
the shoulder or arm. See id.; 38 C.F.R. § 4.71a, DC 5201.
Case: 22-1184 Document: 34 Page: 10 Filed: 05/05/2023
10 FRAZIER v. MCDONOUGH
38 C.F.R. § 4.71a, DC 5227. And certain diagnostic codes
for prosthetic implants allow for ratings “by analogy” under
different diagnostic codes. Id., DC 5051–53, 5055–56.
Diagnostic Code 5230, however, contains no indication that
any other diagnostic code should be considered in the
rating decision if Diagnostic Code 5230 applies to the
claimant’s condition. As the Veterans Court has explained,
“[t]he inclusion of criteria in one [diagnostic code] indicates
that the Secretary’s exclusion of that criteria elsewhere
was purposeful.” Sowers, 27 Vet. App. at 480 (citing
Hudgens v. Gibson, 26 Vet. App. 558, 561 (2014)).
5. As the court in Sowers pointed out, “[e]very joint in
the rating schedule has at least one [diagnostic code] with
a 10% disability rating.” Id. at 481. For that reason,
adopting Ms. Frazier’s interpretation of section 4.59 would
“create a de facto 10% disability rating for painful motion,”
because there would always be a disability rating of at least
10 percent available somewhere in the diagnostic codes for
a particular joint. Id. If the Secretary had intended that
result, section 4.59 could simply have stated that a
minimum percent disability rating would apply to any
covered joint condition accompanied by pain. But the
reference to the “minimum compensable rating for the
joint” suggests that a determination of the minimum
compensable rating for a particular injury requires
reference to the rating schedule for the particular injury in
question. 5
5If section 4.59 had provided for at least the minimum
compensable rating “for the disability” or “for the
condition” in question, instead of “for the joint,” there
would be no room for doubt as to the meaning of the
regulation; it would be clear that the applicable minimum
compensable rating would be the minimum compensable
rating in the diagnostic code applicable to the veteran's
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FRAZIER v. MCDONOUGH 11
6. Finally, the Secretary’s interpretation of section
4.59 does not render that provision meaningless, nor must
the regulation be treated as merely precatory, as the
concurring opinion suggests. Section 4.59 specifically
directs that painful, unstable, or malaligned joints are
entitled to “at least the minimum compensable rating for
the joint.” And the regulation has effects for disabilities
within diagnostic codes that contain both compensable and
non-compensable ratings. For example, under Diagnostic
Code 5261, a veteran who has a knee disability is entitled
to one of several ratings, ranging from zero percent to 50
percent, depending on the angle to which the extension of
the leg is limited. 38 C.F.R. § 4.71a, DC 5261. However, if
the veteran would ordinarily be entitled to a zero percent
rating based on the range of motion under Diagnostic Code
5261, section 4.59 would nevertheless entitle the veteran
to a 10 percent rating, which is the minimum compensable
rating available under Diagnostic Code 5261, if the veteran
experienced pain throughout extension. Id.; Sowers, 27
Vet. App. at 478 n.6. Applying section 4.59 in a setting
such as that one is consistent with the language and
purpose of section 4.59, without creating a “freestanding
painful motion disability that is always entitled to at least
a 10% disability rating.” Sowers, 27 Vet. App. 482.
As the concurring opinion points out, some diagnostic
codes recognize pain as productive of a disability. See, e.g.,
38 C.F.R. § 4.71a, DC 5298; id. § 4.104, DC 7115; id.
§ 4.117, DC 7714. None of those diagnostic codes, however,
relates to a joint. Rather than separately listing pain as a
condition. It seems highly unlikely that the choice of the
phrase “for the joint” instead of “for the condition” or “for
the disability” was intended to authorize reference to the
entire set of diagnostic codes applicable to the joint in
question, regardless of how different the injury might be
from the injury under consideration.
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12 FRAZIER v. MCDONOUGH
criterion for each of the many diagnostic codes that apply
to joints, the Secretary chose to express in section 4.59 that
“painful motion with joint or periarticular pathology” is
“productive of disability.” Id. § 4.59. That choice is best
respected by the interpretation of section 4.59 advocated by
the Secretary and adopted by the Veterans Court.
B
Ms. Frazier also makes the more sweeping contention
that the Secretary is barred by statute from adopting
disability ratings of zero, and therefore it was
impermissible for the DVA to rate Mr. Frazier’s disability
at zero percent. Appellant’s Br. 7–9; Appellant’s Reply 4–5,
10. She relies principally on 38 U.S.C. § 1155, which
provides for “ten grades of disability and no more,” ranging
from 10 percent to 100 percent, and 38 U.S.C. § 1114,
which sets the rates of compensation for those ten grades
of disability. Because there is no grade of “non-
compensable” disability listed in either statute, Ms. Frazier
argues that Congress “did not provide for any such
noncompensable rating,” Appellant’s Br. 8–9, and that Mr.
Frazier was therefore entitled to a minimum rating of 10
percent under section 4.59.
The premise of that argument is wrong. Various
veterans’ benefits statutes refer to non-compensable
disabilities and thus contravene Ms. Frazier’s argument
that the existence of a “disability” necessarily mandates a
compensable rating. For example, 38 U.S.C. § 1710 makes
clear that ratings can be either compensable or non-
compensable. Section 1710(a)(2)(A) provides that a
veteran may qualify for a range of medical services if the
veteran has “a compensable service-connected disability.”
By contrast, section 1710(a)(1)(A) states that the DVA may
provide a narrower range of medical services to “any
veteran for a service-connected disability,” which indicates
that a veteran with a service-connected condition is eligible
for that narrower range of DVA medical treatment
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FRAZIER v. MCDONOUGH 13
regardless of whether the condition is compensable or non-
compensable. Similarly, 38 U.S.C. § 1712(a)(1) provides
additional dental services for a “dental condition or
disability” that is “service-connected and compensable in
degree” as compared to such a condition or disability that
is “service-connected but not compensable in degree.”
Congress’s recognition of a disability of less than 10
percent, which results in no compensation, dates from the
World War Veterans Act of 1924, which provided that “no
compensation shall be paid for disability that resulted in a
reduction in earning capacity rated at less than 10 per cen-
tum.” Pub. L. No. 68-242, ch. 320, § 202(2), 43 Stat. 607,
618 (June 7, 1924). There is no indication that with the
enactment of sections 1155 and 1114, Congress intended to
dispense with the longstanding practice of recognizing non-
compensable disabilities.
The Secretary has likewise frequently used the term
“disability” in DVA regulations to refer to conditions that
are non-compensable under the rating schedule. See, e.g.,
38 C.F.R. § 17.111 (exempting “[c]are for a veteran’s non-
compensable zero percent service-connected disability”
from the copayment requirements of that section); id.§ 17.108 (same); id. § 17.149 (authorizing the provision of
hearing aids to certain veterans “who have service-con-
nected hearing disabilities rated 0 percent”); id. § 17.161
(authorizing outpatient dental treatment for veterans
“having a service-connected noncompensable dental condi-
tion or disability”); id. § 3.324 (authorizing the rating
agency to apply a 10 percent rating when a veteran suffers
from multiple service-connected disabilities but “none of
the disabilities [are] of compensable degree”); id. § 17.36
(allowing “veterans receiving compensation at the 10 per-
cent rating level based on multiple noncompensable ser-
vice-connected disabilities” to enroll in the DVA healthcare
system). In view of the repeated use of the term “disability”
to include non-compensable conditions, we do not interpret
the use of the term “disability” in section 4.59 as indicating
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14 FRAZIER v. MCDONOUGH
an intent by the Secretary to award at least a 10 percent
rating whenever painful motion is present, regardless of
the diagnostic code applicable to the underlying condition. 6
For the reasons set forth above, we sustain the Secre-
tary’s interpretation of 38 C.F.R. § 4.59. The judgment of
the Veterans Court is therefore affirmed.
AFFIRMED
6 Ms. Frazier additionally relies on this court’s decision
in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), but
that decision does not support her argument. In Saunders,
the court concluded that pain can qualify as a disability for
purposes of determining eligibility for service-connection
under 38 U.S.C. § 1110 if it results in a functional impair-
ment of earning capacity. Id. at 1368. Saunders does not
suggest that pain, such as painful motion in a joint, must
in all cases be deemed a compensable disability under the
rating schedule. See Martinez-Bodon v. McDonough, 28
F.4th 1241, 1243 (Fed. Cir. 2022).
Case: 22-1184 Document: 34 Page: 15 Filed: 05/05/2023
United States Court of Appeals
for the Federal Circuit
______________________
JEANINE FRAZIER,
Plaintiff-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1184
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-7587, Judge Grant Jaquith.
______________________
DYK, Circuit Judge, concurring.
I agree with the majority’s affirmance of the Veterans
Court’s denial of compensation for Mr. Fraizer’s finger in-
juries. I do not agree with the majority’s conclusion that
section 4.59, insofar as it deals with compensation for pain,
is more than advisory and plays a role in other cases in in-
terpreting diagnostic codes. See Majority Op. 11 (“[Section
4.59] has effects for disabilities within diagnostic codes
that contain both compensable and non-compensable rat-
ings.”).
I
I read section 4.59 in this respect as entirely precatory.
The relevant part of the regulation reads: “The intent of the
Case: 22-1184 Document: 34 Page: 16 Filed: 05/05/2023
2 FRAZIER v. MCDONOUGH
schedule is to recognize painful motion with joint or peri-
articular pathology as productive of disability. It is the in-
tention 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. As is customary for precatory statements,
the language in the regulation is not written in mandatory
terms. By explicitly stating that the regulation is describ-
ing the “intent” of the schedule and expressing an “inten-
tion,” it is clear that the language is goal-oriented, i.e.,
precatory. See Music Square Church v. United States, 218
F.3d 1367, 1370 (Fed. Cir. 2000).
The relevant part of section 4.59 is also vague and un-
clear, supporting the view that it was not meant to be ap-
plied directly. It is unclear which disability codes would be
considered sufficiently related to joints to be covered by sec-
tion 4.59 and whether only malaligned joints must be “due
to healed injury” or whether painful, unstable, and
malaligned joints must all be “due to healed injury.” There
is also no discernable logic to applying the pain upgrade
only in the limited situations where the diagnostic code in-
cludes both compensatory and non-compensatory ratings.
The majority’s approach will inevitably lead to substantial
litigation regarding the scope of section 4.59.
II
Viewing the regulation as mandatory also seems incon-
sistent with the authorizing statute. Section 1155 grants
authority to the Secretary to “adopt and apply [the] sched-
ule” for rating disabilities and states that “[t]he ratings
shall be based, as far as practicable, upon the average im-
pairments of earning capacity resulting from such injuries
in civil occupations.” 38 U.S.C. § 1155. We have acknowl-
edged that “the purpose of veterans compensation [is] to
compensate for impairment to a veteran’s earning capac-
ity” and held that “[t]o establish the presence of a
Case: 22-1184 Document: 34 Page: 17 Filed: 05/05/2023
FRAZIER v. MCDONOUGH 3
disability, a veteran will need to show that her pain
reaches the level of a functional impairment of earning ca-
pacity.” Saunders v. Wilkie, 886 F.3d 1356, 1363, 1367–68
(Fed. Cir. 2018).
Pain can range from the trivial to the substantial and
excruciating. Differences in pain amounts would surely
have different effects on a veteran’s ability to function and
could range from no loss of function to total loss of function.
Nonetheless, following the Secretary’s interpretation of the
regulation, the majority opinion concludes that without re-
gard to the degree of pain 4.59 is mandatory in one re-
spect—pain is compensable at the minimum compensable
rating available if the veteran has a “disabilit[y] within [a]
diagnostic code[] that contain[s] both compensable and
non-compensable ratings.” Majority Op. 11. In that event,
a veteran who suffers pain is entitled to the lowest compen-
sable rating. This rule does not take into account the de-
gree of pain involved, whether it creates loss of function, or
the effect of a veteran’s pain on their earning potential, as
required by statute. In my view, the majority interpreta-
tion is inconsistent with the statute.
III
I do not minimize the fact that pain may be a signifi-
cantly disabling condition. The regulations allow for extra-
schedular ratings “[t]o accord justice to the exceptional
case where the schedular evaluation is inadequate to rate
a single service-connected disability.” 38 C.F.R.
§ 3.321(b)(1). This provision allows a veteran whose pain
results in disability, as defined by statute as loss of earning
capacity, to be fairly compensated. Some diagnostic codes
also explicitly recognize pain as productive of disability in
the context of certain diseases or conditions. See, e.g.,
38 C.F.R. §§ 4.104, DC 5298 (Coccyx removal), 4.117,
DC 7115 (Thrombo-angiitis obliterans (Buerger’s Dis-
ease)), 4.117, DC 7714 (Sickle cell anemia).
Case: 22-1184 Document: 34 Page: 18 Filed: 05/05/2023
4 FRAZIER v. MCDONOUGH
In my view, as currently written, the relevant parts of
section 4.59 should have no role in evaluating veterans’ dis-
abilities under the diagnostic codes. If the existing codes
do not sufficiently take account of disabling pain, the Sec-
retary should consider revising the diagnostic codes to take
better account of loss of function due to pain.