Frazier: The Federal Circuit Rejects a Minimum 10% Rating for Painful Joints

Frazier v. McDonough, Case Number 2022-1184, decided May 5, 2023 was a case before the Federal Circuit and concerned a rating for a hand injury.  Specifically, the veteran focused on whether a minimum a 10% rating for a joint injury is a minimum assignable rating.  The Federal Circuit answered in the negative.

The veteran injured two fingers when his PTSD caused him to become startled and he hurt himself.  He ultimately was granted service connection for the fingers, but a non-compensable rating was assigned.  The VA rated pursuant to DC 5230 (limitation of motion to the fingers), which provides a 0% rating.

The veteran noted 38 CFR Section 4.59 states: “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.”  The veteran then argued that because there was pain in the fourth and fifth fingers, Section 4.59 required at least a minimum compensable rating of 10%. 

The Court noted the veteran “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 service-connected joint condition that is associated with pain.” 

The Federal Circuit explained “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.”

The veteran also more boldly argued the VA was barred by statute (specifically 38 USC 1114) from adopting disability ratings of zero, but that argument was also rejected by the Court. 

This was a novel argument and attempt to attack 0% ratings that was rejected by the Federal Circuit and points us back toward using the Diagnostic Codes and if appropriate extraschedular ratings.

Decision by Judge Bryson and joined by Judges Dyk and Prost with a separate concurrence by Judge Dyk.

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