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.