DeLuca and Functional Loss Caused by Pain Reviewed

Michell: DeLuca and Functional Loss Caused by Pain Reviewed

Tyra K. Mitchell v. Eric K. Shinseki, Opinion Number 10-2169, decided August 23, 2011 grappled with the question whether pain, by itself, throughout a joint’s range of motion constitutes a functional loss entitling the veteran to a higher disability rating.

This was a pyric victory for the veteran as the Court held 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.” Id. at *1.

It is undisputed that under 38 CFR Section 4.40 functional loss (reduced normal excursion, strength, speed, coordination or endurance) can be caused by pain. Section 4.45 also discusses functional loss in the joints and the court has previously found “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 …) that actually limited motion.” Id. at *8.

“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.” Id. at *8.

The veteran framed the question before the court as to whether she is entitled to the maximum ratings because painful motion is deemed to be limited motion even if there is no actual limitation of motion. Id. at *9. The court rejected this question and seemed to be concerned with absurd situations where a slight pain in the knee throughout all ROM would result in a greater rating than a situation where another veteran had an actual limitation of flexion and extension.

It is clear the veteran was trying to find a good case that made law saying painful motion that makes a certain range of motion limited should qualify for the same rating that range of motion from another disability would qualify for. This is a sensible reading of the regulations and case law and essentially what advocates have argued for years.

The result will probably be a motion seeking a full panel decision as well as a potential appeal above. On a day to day level, veterans will need to tie the pain to perform normal working movements of the body with normal excursion, strength, speed, coordination or endurance.

Of course, the Court did ultimately find for the veteran by saying the medical examination was inadequate because it did not detail limitations on pain and flare-ups of pain. It seems to me the Court is trying to squeeze too hard for information that has previously been a matter of saying that a veteran could flex or extend x amount with pain and x amount without pain. Asking for a physician to discuss how pain impacts excursion, strength, speed, coordination or endurance is simply asking too much.

Decided by Chief Judge Kasold, and Judges Moorman and Schoelen.