Tyra K. Mitchell v. Eric K. Shinseki

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.

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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

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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

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– 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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