Tedesco: Severe Painful Motion as opposed to Limitation of Motion

Tedesco v. Wilkie, Case Number 18-1805, decided August 16, 2019 considers the term Severe Painful Motion in DC 5055.

Diagnostic Code 5055, which covers knee replacements, provides for a 60% rating for “Chronic residuals consisting of sever painful motion or weakness in the affected extremity.”  The veteran reported experiencing significant pain in both knees and left knee pain "all the time" and knee pain 6 hours a day and relying on a walker to get around.  Id. at *2.  The

Board found:

appellant's range of motion was "at worst 95 degrees of flexion and 0 degrees of extension." R. at 6. The Board concluded that a "higher or separate [intermediate] rating is not warranted based on limitation of motion." R. at 7. Because the appellant's left knee did not warrant more than a minimum rating for painful motion under the other DCs for limitation of motion, the Board found that no intermediate rating was warranted under those DCs and that it was "more favorable for him to retain his currently assigned 30[%] minimum disability rating" under DC 5055. Id. Additionally, the Board noted that it  cannot find that chronic residuals consisting of severe painful motion or weakness in the affected extremity are present such that a disability rating of 60[%] under [DC] 5055 is warranted." Id. The Board specifically found that, "while the [appellant] did experience pain in the left knee, his range of motion was not limited to compensable levels." Id. The Board observed that VA examiners found moderate weakness and normal strength. Id. Thus, the Board concluded that a "disability rating in excess of 30[%] cannot be granted," id., because his disability "did not rise to the level of severe painful motion or weakness."

Id. at *2.

The veteran argued the VA had conflated the terms severe painful motion with limitation of motion whereas the Secretary argued “the Board was required to consider limitation of motion in deciding the appropriate rating under DC 5055. The Secretary asserts that a disability rating is assigned based on the loss of earning capacity and because a knee becomes impaired most commonly by limitation of motion, it follows that in evaluating the disability level caused by pain, limitation of motion is a critical factor to be considered.”  Id. at *4.

The Court focused on the plain language of DC 5055 and determined severe painful motion and limitation of motion are distinct concepts.  It noted that the 60% rating did not require limitation of motion whereas lower intermediate level ratings under DC 5055 did require limitation of motion, which meant the Secretary knew how to use the terms differently but wrote DC 5055 as it did.

The Court then wrote:

Therefore, to the extent that the Board in this matter substituted a requirement of limitation of motion for the severe-painful-motion analysis contemplated by DC 5055, the Board erred. See Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992) (finding Board error where it misapplied the terms of the applicable DC). This is not to say that the Board is precluded from considering objective tests for limitation of motion in evaluating service-connected residuals of a knee replacement under DC 5055, but to adequately assess the degree of painful motion under DC 5055, the Board must do more than merely cite those test results and state the corresponding evaluation under the pertinent limitation-of-motion DC. Simply stated, limitation of motion is but one factor when assessing the disability commensurate with "severe painful motion."

Id. at *6-7.

In the case at hand, “[t] he Board found that severe painful motion was not present because the appellant's "range of motion was not limited" by pain. Id. This is not what DC 5055 requires for a 60% rating; it is severe painful motion, not limitation of motion, that is required.”  Id. at *7.  The Court also challenged the Secretary and stated:

As a final matter, the Court notes, without deciding, that the Board may need to explain what it understands "severe" to mean as it is used to describe painful motion and  weakness at the 60% disability level. This Court has made clear that the Board cannot base its rating decisions on undisclosed standards. See Johnson v. Wilkie, 30 Vet.App. 245, 254-55 (2018). Doing so amounts to nothing more than the Board saying that a veteran is not entitled to certain benefits "'because I say so.'"

Id. at *7.

The Court also considered lateral knee instability.  In this case, the Board noted veteran reports of knee instability but found medical findings more probative.  Id. at *8.  The Court noted “the Board's explanation appears to rely on an understanding that medical evidence is inherently more probative under DC 5257, which this Court has rejected.”  Id. at *8.  Thus, the case was remanded on both the DC 5055 (severe painful motion) and DC 5257 (instability) arguments.

This case underscores the fact the VA often does not fully accept a veteran’s complaints of pain when assigning a rating.  It is important to continue appealing these types of cases and thus holding the VA to account. 

The decision was by Judge Allen and joined in by Judges Bartley and Meredith.

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