Sowers: Section 4.59 Meets Its Limits

William Sowers v. McDonald, Opinion Number 14-0217, decided February 12, 2016  involves the

interpretation of 38 C.F.R. Section 4.59.

Section 4.59 states:  “With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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 joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”

The veteran had a right ring finger disability that was rated under DC 5230 for limitation of motion at 0%.  The veteran was not entitled to a rating under DC 5010 because the arthritis was not confirmed by x-ray and was not ankyloses of the right ring finger.

The veteran argued Section 4.59 should assist in getting him a 10% rating because he didn’t just have limitation of motion, but also painful motion.

The Court found that 4.59 adds flexibility to the rating schedule by acknowledging painful motion that is not severe enough to qualify for a compensable rating.  However, the Court also found that “4.59 is not an independent provision that may be applied without an underlying DC: Section 4.59 is read in conjunction with, and subject to, the DC.”  The Court noted the relevant DC is 5230 and provides only a 0% rating and that a 0% rating indicates no reduction in earning capacity irrespective of impairment of motion.  The Court then said “Reading Section 4.59 in conjunction with DC 5230, Mr. Sower is not entitled to a compensable rating under this DC.  Section 4.59 intends to recognize actually painful joints and provide at least the minimum compensable rating for the joint.  There is no minimum compensable rating available under DC 5230, that is any level of disability warrants a 0% rating.  DC 5230’s specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger trumps the general intent in Section 4.59 to compensate painful motion with at least the minimum compensable rating.”

However, the case was not totally lost to the veteran.  The Board had denied extraschedular consideration of the disability, but had not considered the combined effects of his multiple finger disabilities of his right hand.  The Court noted that the CAFC had decided in 2014 that the Board must consider the “collective impact of all [the appellant’s] disabilities.”

This was an interesting argument to use Section 4.59 to leverage a higher rating for painful motion that was not mentioned in the relevant DC.  Unfortunately, the Court did not follow.

Decided by Judge Schoelen and joined by Judges Lance and Greenberg.

Gazelle: SMC(s)(1), When a Rating Should Not Be Combined

Frederick Gazelle v. McDonald, Opinion Number 14-2272, decided February 2, 2016 involves a case where the veteran sought SMC(s) for having an individual 100% rating and “additional service-connected disability or disabilities independently ratable at 60 percent or more.” 

The veteran had a 100% rating for PTSD and two ratings of 20% for his back and two 10% ratings for left lower and upper extremity radiculopathy.  The veteran sought a SMC rating, but the Board stated the additional back and radiculopathy ratings when combined using the combined ratings table only total 50%. 

The veteran argued that the statute in play 38 USC Section 1114(s)(1) does not mention the use of the combined rating table and the plain language meaning should be simply to add up his disabilities, which would result in a 60% rating and a grant of the SMC rating.

The Court rejected the veteran’s argument that the combined rating table should not be used and instead stated the Veteran’s Court and Federal Circuit have construed the phrase “additional disability or disabilities independently ratable at 60% or more” to mean that the disabilities should be combined. 

This was an attempt by the veteran and his attorney to expand the VA’s application of SMC(s) ratings and frankly a good argument.  The Court’s reliance on the Federal Circuit decision of Guerra v. Shinseki, 642 F.3d 1046, 1048 (Fed. Cir. 2011) does not appear on closer inspection to be directly applicable as the Court in Guerra was addressing “another independently rated disability or combination of disabilities rated at 60%”).  I would not be surprised if this case ends up before the Federal Circuit.

Opinion by Judge Schoelen, joined in by Judges Davis and Moorman.

Dent: Overpayment of Debts

Preston L. Dent v. McDonald, Case Number 13-2406, decided July 15, 2015 involves an overpayment created by an increase in income in a situation where the veteran was receiving a non-service connected pension. 

The veteran was receiving benefits under a non-service connected pension.  He subsequently started receiving Supplemental Security Income.  The veteran actually sent a copy of the decision to the RO along with his pension check and a letter stating he believed he is only to receive a portion of his check from the VA—“please contact me if I am wrong”.  The VA did not respond for nine months.  During those nine months, the veteran kept receiving and cashing VA pension checks.  Nine months later the VA determined an overpayment had been created.  The veteran later explained that after sending the letter “when the RO did not make an adjustment and instead continued to pay him at his regular pension rate, he assumed that he was entitled to full payment from both agencies.”  However, the VA found the debt for overpayment was properly created.

The law states an overpayment is not created when it is due solely to VA error.  An act or omission by the beneficiary or the beneficiary’s knowledge prevents an overpayment from being solely VA error.  The Court determined the veteran’s continued acceptance and cashing of pension checks with knowledge meant the overpayment was at least in part his fault.

The Court also refused to consider the issue of how much was owed by the veteran because the Board had not ruled on that issue, thought it remanded that issue for further consideration.

Judge Bartley wrote a spirited dissent that basically stated the veteran had done what he was supposed to do—inform the VA of his change in income from the SSA—and therefore he cannot be considered to be at fault.  She also rejected the idea the veteran had knowledge of the VA error because she said the record was replete with evidence the veteran was unsure what he should receive from the VA.  She laments that veterans “are forced to pay for VA’s failure to communicate consequences to veterans and to promptly respond to veteran’s income disclosures.”

The case does not appear to have been appealed to the Federal Circuit. 

Decision by Judge Moorman and joined by Judge Pietsch.  Dissent by Judge Bartley.