Burton: Painful Motion, Pyramiding, and Issue Preservation

Burton: Delucca Applied to More Than Arthritis

Russell W. Burton v. Eric K. Shinseki, Opinion Number 09-2873, decided August 4, 2011 involved a veteran’s claim for a higher rating for a shoulder disability.

The Board decision was initially affirmed by a single judge decision but then affirmed only in part by a full panel.

Importantly, the VA initially argued that 38 CFR section 4.59 only applied to arthritis claims. The Court rejected such an argument by reviewing the language of the section in its entirety. Instead, the Court determined that “When §4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.” Id. at *6.

The Court then turned to a discussion of the facts. They found the Board had mostly considered section 4.59. However, for a small period of time the Board had not discussed painful movement. Specifically, the VA said a VA examination found full range of motion when instead the report listed the veteran’s subjective complaints of pain on motion and then recorded his range of motion without addressing whether he had any actual pain on motion. Id. at *7. The Court found the Board provided inadequate reasons or bases and remanded.

The Court also considered the veteran’s argument that he should receive two separate disability ratings for abduction and flexion limitations to his shoulder. The Court found these limitations arise from one disability, and the law does not permit separate ratings under each circumstance. The Court also seemed to raise the specter of issue preservation by saying the record on appeal does not reflect that Burton raised this argument to the Board. This seems to suggest that issue preservations might be met receptively by the Court in the future, a development that would only assist the VA and put unrepresented veterans at a significant disadvantage.

Decided by C.J. Kasold, and Judges Davis and Holdaway.