Petitti: Painful motion is Limitation of Motion and the Power of an Affidavit from a Family Member or Friend

Petitti v. McDonald, Case Number 13-3469, was decided October 28, 2015 and concerns the interplay between DC 5002 (arthritis in hands) and 38 CFR 4.59.

This case largely involves what evidence the VA is required to consider when making a determination of painful motion.  The veteran argued all evidence, including lay evidence, was to be considered whereas the Secretary argued for a higher degree of objective evidence.

Regarding the interplay of DC 5002 and Section 4.59, the Court held that “4.59’s reference to ‘painful motion’ is equated with the reference to ‘limitation of motion’ in DC 5002, a claimant with [rheumatoid arthritis] who demonstrates that he has painful motion of a joint is entitled to the minimum disability rating for that joint under DC 5002 and § 4.59, even though the claimant does not have actual limitation of motion.”

Regarding proving the painful motion, the Court found that “DC 5002 requires that limitation of motion must be corroborated by a person other than the veteran based upon that person’s observations.”  “Therefore, a lay description detailing observations of a veteran’s difficulty walking, standing, sitting, or undertaking other activities falls within the scope of ‘satisfactory evidence of painful motion’ that has been ‘objectively confirmed.”

In the case at hand, the Court found the record was replete with medical and lay evidence of actually painful joints. 

This case is helpful because it shows that a minimum rating may be obtained via Section 4.59 for arthritis for painful motion whether or not that necessarily results in a limitation of motion.  It also lays out that lay evidence (typically in the form of an affidavit of a family member or friend) can fulfil the role of objective evidence.

Decision by J. Schoelen and joined in by CJ Hagel and J. Bartley.