Veteranclaims’s Blog

November 3, 2011

Single Judge Application, Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011); Pain Itself Does Not Contitute A Functional Loss

Filed under: Uncategorized — veteranclaims @ 5:42 pm

Excerpt from decision below:
After briefs were submitted in this case, the Court addressed the issue raised by the appellant in Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011).
In Mitchell, the Court held that the principle that “painful motion is limited motion” taken from Hicks and Lichtenfels applies only to evaluations under DC 5003 for degenerative arthritis, which permits a disability rating of 10% for painful motion that does not limit range of motion to a compensable degree under another, relevant DC. ____ Vet.App. at ____, slip op. at 27. Under DCs that rate disabilities based upon range of motion (such as the DC at issue here), the Court made clear that while “pain may cause functional loss, pain itself does not constitute a functional loss,” and is alone not grounds for entitlement to a higher disability rating. Id. at ____, slip op. at 14. Based upon Mitchell, the appellant’s argument is, therefore, without merit.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4419
DANIEL L. MOY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Daniel L. Moy, appeals through counsel an
August 4,
2009, Board of Veterans’ Appeals (Board) decision in which the Board
denied his claims for
entitlement to a disability rating greater than 10% for post-traumatic
degenerative joint disease of
the right knee, status post arthrotomy, for the period from July 3, 2003,
until December 22, 2005,
and entitlement to a disability rating greater than 20% for a right knee
disorder for the period after
December 23, 2005. Record of Proceedings (R.) at 3-18. This appeal is
timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App.23, 25-26 (1990). For
the following reasons, the Court will affirm, in part, and vacate, in part,
the Board’s decision and
remand the vacated matter for further proceedings consistent with this
decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1968 until
June 1970. R.
at 1097. A meniscectomywas performed on the appellant’s right knee during
his service. R. at 515.
In June 2003, the appellant filed a claim for benefits for, among other
conditions, a right knee
disorder. R. at 1082-91. He indicated that he injured his knee in June
1970. R. at 1087. In a

September 2003 VA medical examination, the appellant was diagnosed with
degenerative joint
disease of his right knee with no instability. R. at 1032-36. The examiner
opined that the appellant’s
right knee disorder is related to his service. R. at 1035. In a November
2003 rating decision, the VA
regional office (RO) granted the appellant entitlement to service
connection for post-traumatic
degenerative joint disease of his right knee and assigned a disability
rating of 10% with an effective
date of July 3, 2003. R. at 1027-31.
InDecember2005,theappellant’s privateorthopedist,Dr.PeterF.Holmes,
submittedaletter
stating that the appellant had developed “severetricompartmental
degenerative joint disease . . . with
instability” in his knees. R. at 935. Dr. Holmes stated that the appellant
was unable to walk for long
distances or sit for prolonged periods, and required pain and anti-
inflammatory medication to keep
him “somewhat comfortable.” Id. Based, in part, on the findings of a May
2006 VA medical
examination (R. at 920-28), in June 2006, the RO increased the appellant’s
disability rating for his
right knee disorder to 20% with an effective date of December 23, 2005,
the date of Dr. Holmes’s
letter. R. at 916-19.
The appellant was provided a VA medical examination in December 2006. R.
at 859-63.
In a January 2007 hearing before the Board, the appellant stated that he
has constant pain in his knee
that requires him to use a cane to walk. R. at 868. He stated that his
right knee was not severely
unstable, but said that he could not stand on his right leg and keep his
balance. R. at 875. In April
2007, the Board remanded the appellant’s case for the RO to obtain
additional medical records and
provide the appellant an additional VA medical examination. R. at 848-54.
The appellant was
provided with that examination in March 2009, and the examiner diagnosed
him with right knee
osteoarthritis and degenerative joint disease. R. at 76-79. In April 2009,
the RO continued a 10%
disability rating for the appellant’s right knee disorder from July 2003
until December 2005, and a
20% disability rating thereafter. R. at 72-74.
The Board, in its August 4, 2009, decision here on appeal, denied the
appellant entitlement
to a disability rating in excess of 10% for a right knee disorder for the
period from July 3, 2003, until
December 22, 2005, and entitlement to a disability rating in excess of 20%
for the period after
December 23, 2005. The Board found that prior to December 2005 the
evidence did not demonstrate
that the appellant’s disorder caused limitation of flexion and extension
of his leg such that a higher
2

disability rating is warranted. R. at 5-6, 11. The Board considered
whether functional loss in the
use of the appellant’s leg due to pain warranted a higher disability
rating, but found that it did not.
R. at 12. The Board made similar findings for the period after December
2005. R. at 6, 13-14.
Also, the Board determined for both periods that the evidence did not
demonstrate that the appellant
suffered from instabilityin his knee such that an increased
disabilityrating is warranted. R. at 12-13,
15-16.
The appellant raises three arguments on appeal. First, he asserts that
evidence of pain
throughout the range of motion of his knee is indicative that a higher
disability rating is warranted,
and that the Court should order the Board award him separate, higher
disability ratings for pain
throughout his range of motion and for evidence of instability in his knee.
Appellant’s Brief (Br.)
at 10-13. Next, the appellant contends that remand is warranted because
the Board failed to consider
a possible additional disability rating based on his 1970 meniscectomy. Id.
at 14-15. Finally, the
appellant argues that the Court should order the Board to award him a 10%
disability rating based
on record evidence indicating that the extension of his knee is limited to
10 degrees. Id. at 15-16.
TheSecretaryconcedesthat remand is warrantedfortheBoardto address
whetherpainlimits
the appellant’s range of motion in his right knee and determine whether
its findings indicate that a
higher disabilityrating is warranted for the period after December 23,
2005. Secretary’s Br. at 7. The
Secretary also concedes that remand is warranted for the Board to consider
whether a separate
disability rating is appropriate based on his meniscectomy and whether the
appellant is entitled to
an additional disability rating for evidence of limitation of extension of
his right leg for the period
after December 23, 2005. Id. The Secretary, however, argues that the Court
should not reverse the
Board’s decision and should not award the appellant the disability ratings
he seeks. Id. at 8-9.
II. ANALYSIS
A Board determination of the appropriate degree of disability under the
rating code is a
finding of fact subject to the “clearly erroneous” standard of review. 38
U.S.C. § 7261(a)(4);
Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). A finding of fact is
clearly erroneous when the
Court, after reviewingthe entire evidence, “is left with
thedefiniteandfirmconvictionthat a mistake
3

has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (
1948); see also Gilbert
v. Derwinski, 1 Vet.App. 49, 52 (1990).
However, when deciding a matter, the Board must include in its decision a
written statement
of thereasons orbasesforits findings and conclusions, adequate to enablean
appellant to understand
the precise basis for the Board’s decision as well as to facilitate review
in this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.
App. at 56-57. To
comply with this requirement, the Board must analyze the credibility and
probative value of the
evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the reasons
for its rejection of anymaterial evidence favorable to the claimant. See
Caluza v. Brown, 7 Vet.App.
498, 506 (1995); Gilbert, 1 Vet.App. at 57.
A. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 (2008)
According to VA regulations, a veteran with full range of motion in his
knee is able to flex
his knee to 140 degrees and extend his knee to 0 degrees. 38 C.F.R. § 4.
71a, Plate II (2008). The
Board applied 38 C.F.R. § 4.71a, DC 5260 in conjunction with DC 5261 in
determining the
appropriate disability rating for the period both before and after
December 2005. Pursuant to DC
5260, a 10% disability rating is warranted when flexion of the leg is
limited by 45 degrees, a 20%
disability rating is warranted when flexion is limited by 30 degrees, and
a 30% disability rating is
warranted when flexion is limited by 15 degrees. Pursuant to DC 5261, a 10%
disability rating is
warranted when extension of the leg is limited to 10 degrees, a 20%
disability rating is warranted
when extension is limited to 15 degrees, and a 30% disability rating is
warranted when extension is
limited to 20 degrees.
TheBoardfoundthat,fortheperiodpriorto December2005,
theappellant’srightflexion was
not limited by 30 degrees and his extension was not limited to 15 degrees,
and thus denied him a
disability rating greater than 10%. R. at 11. The Board also found that,
because flexion was not
limited by45 degrees, a separate compensable disability rating is not
warranted under DC 5260. Id.
For the period after December 2005, the Board found that the appellant’s
flexion was not limited by
15 degrees, and his extension was not limited to 20 degrees, and thus
denied him a disability rating
higher than 20%. R. at 14. The Board also found that, because the
appellant’s flexion was not
limited by 45 degrees, a separate compensable rating is not warranted
under DC 5260. Id.
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In addition to applying the rating formula found in DCs 5260 and 5261,
the Board also
applied 38 C.F.R. §§ 4.40 and 4.45, as well as this Court’s holding in
DeLuca v. Brown, 8 Vet.App.
202 (1995). In DeLuca, the Court held that §§ 4.40 and 4.45 require VA
to consider the disabling
effect of painful motion, fatigability, and weakness when rating joints
and rejected the Secretary’s
argument that “any regulation that specifies a rating for limitation of
motion ipso facto includes a
rating for pain.” 8 Vet.App. at 205-06. For the period prior to December
2005, the Board found that
“even though the [appellant] complains of pain, consideration of 38 C.F.R.
§§ 4.40, 4.45 does not
lead the Board to conclude that functional losses he experiences in his
right knee equate to the
criteria fora 20 percent ratingunder either [DC] 5260 or [DC] 5261, or
separate compensable ratings
under these same [DCs].” R. at 11-12.
Likewise, for the period after December 2005, the Board
found that “even taking into account the [appellant’s] complaints of pain
. . . the record does not lead
the Board to conclude that the functional losses he experiences in his
right knee equate to the criteria
for a 30 percent rating because extension is not limited to 20 degrees.” R.
at 14. The Board also found that functional loss due to pain did not indicate that separate
disability ratings were warranted for this period. R. at 14.
The appellant does not argue that the Board’s findings under DCs 5260 and
5261 and DeLuca and its related regulations are erroneous. Instead, he argues that the
Board did not apply the correct legal standard. He bases his argument on the Court’s precedent in Hicks v.
Brown, 8 Vet.App. 417, 420 (1995) in which the Court stated that painful motion of a major joint
due to degenerative arthritis is “limited motion even though a range of motion may be possible beyond
the point when pain sets in.” Appellant’s Br. at 12 (also citing Lichtenfels v. Derwinski, 1 Vet.
App. 484, 488 (1991)). The appellant cites evidence in the record indicating that the appellant
experienced pain during range of motion testing throughout his range of motion. Id. (citing R. at 926). The
appellant concludes, therefore, that the Court “should [pursuant to DC 5260] reverse the
Board’s decision and remand with an instruction to award a 30-percent disability rating to [the
appellant] for knee flexion limited
5

by pain.”1 Id. at 12-13. The Secretary argues that remand is warranted for the Board
to consider the evidence of painful motion cited by the appellant. Secretary’s Br. at 11-14.
After briefs were submitted in this case, the Court addressed the issue
raised by the appellant in Mitchell v. Shinseki, ____ Vet.App. ____, No. 09-2169 (Aug. 23, 2011).
In Mitchell, the Court held that the principle that “painful motion is limited motion” taken from
Hicks and Lichtenfels applies only to evaluations under DC 5003 for degenerative arthritis,
which permits a disability rating of 10% for painful motion that does not limit range of motion to a
compensable degree under another, relevant DC. ____ Vet.App. at ____, slip op. at 27. Under DCs
that rate disabilities based upon range of motion (such as the DC at issue here), the Court made clear
that while “pain may cause functional loss, pain itself does not constitute a functional loss,”
and is alone not grounds for entitlement to a higher disability rating. Id. at ____, slip op. at 14.
Based upon Mitchell, the appellant’s argument is, therefore, without merit.

The Secretary, acting without the benefit of Mitchell, concedes that remand is warranted for
the Board to discuss May 2006 and March 2009 VA medical examination
reports, which included complaints of pain during range of motion, McMurray’s, and varus and
valgus stress testing. Secretary’s Br. at 11 (citing R. at 76-79, 920-28). The appellant, however,
does not appear to accept the Secretary’s concession. He states that the Secretary’s argument that
remand is warranted for the Board to discuss certain evidence of record is “incorrect” because the
Board “expressly considered whether the [appellant] was entitled to a rating for limitations of
flexion and extension based on pain.” ReplyBr. at 2. Further, the appellant states that “[e]ven though
the Board did not specifically consider the complaints of pain from the May 2006 and March 2009 VA
examinations, the Board’s error was not a failure of fact finding but an incorrect application of
the law.” Reply Br. at 2.
Because the Court finds no error in the Board’s application of the law,
and the appellant does nothing
to demonstrate error in the Board’s consideration of how his pain affects
his functional loss under
DeLuca and its related regulations, the Court will affirm the Board’s
application of DC 5260. Hilkert
In his reply brief, the appellant clarifies the award he seeks. He asks
the Court to order that
the Board award him a 30% disability rating under DC 5260 and a 10%
disability rating under DC
5261.
6
1

v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the
appellant bears the burden of
demonstrating error on appeal).
B. Separate Disability Ratings For 38 C.F.R. § 4.71a, DC 5257 and DC 5260
The Appellant argues that separate disabilityratings should be awarded
under DCs 5257 and
5260. Appellant’s Br. at 13. Pursuant to 38 C.F.R. § 4.71a, DC 5257,
recurrent subluxation or
lateral instability of the knee warrants a 30% disability rating when it
is severe, a 20% disability
rating when it is moderate, and a 10% disability rating when it is slight.
The Board denied the
appellant entitlement to a separate disabilityrating under either DC 5257
or DC 5260 for both before
and after December 2005. R. at 12-16. The appellant argues that the Court
should reverse the
Board’s decision and order the Board to assign him a separate 20%
disability rating under DC 5257
as well as a 30% disability rating under DC 5260. Appellant’s Br. at 13.
1. Period Prior to December 2005
For this period, the Board found that “because there is no evidence in the
record that suggests
‘slight’ subluxation or instability in the right knee, a separate
compensable rating for right knee
instability is not warranted under [DC 5257]. . . . This is true
throughout the period.” R. at 13. The
Board also found that because the appellant’s flexion is not limited to 45
degrees, a separate
compensable rating is not warranted under DC 5260. R. at 12. The appellant
does not offer any
citations to the record or any other challenge to the Board’s finding that
the evidence does not
indicate that a compensable disability rating is warranted under DC 5257
prior to December 2005.
The Court has already upheld the Board’s findings concerning DC 5260, and
the appellant makes no
further arguments about the Board’s findings. Therefore, the Court finds
no error. See Hilkert, 12
Vet.App. at 151; see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (
2006) (holding that the court
will not entertain underdeveloped arguments).
2. Period After December 2005
In June 2006, the RO awarded the appellant a 20% disability rating under
DC 5257 “due to
[his] instability of the right knee.” R. at 917. The appellant makes it
clear that he has no desire to
challenge that decision. R. at 1, 4. Instead, he asserts that he deserves
separate ratings because “DC
5260 affects range of motion while the disability rated under DC 5257
affects stability of the knee.”
Appellant’s Br. at 13.
7

Under DC 5260, the Board found that the appellant’s flexion is not
limited to 45 degrees, and
thus “even taking into account [the appellant’s] complaints of pain, a
separate compensable rating
is not warranted under [DC 5260].” R. at 14. The Court upheld the Board’s
application of DC 5260
in section A, supra. The appellant makes no arguments that the Board’s
findings concerning DC
5257 are erroneous, nor does he make any further arguments concerning DC
5260. Therefore, the
Court finds that the Board’s decision not to award separate disability
ratings under these DCs is not
error. See Hilkert and Locklear, both supra.
C. 38 C.F.R. § 4.71a, DC 5259
The appellant argues, and the Secretary concedes, that remand is warranted
because the
Board failed to consider 38 C.F.R. § 4.71a, DC 5259. Appellant’s Br. at
14-15; Secretary’s Br. at 17-
18. The Board is required to consider all evidence of record and to
consider and discuss all
“potentially applicable” provisions of law and regulation. Schafrath v.
Derwinski, 1 Vet.App. 589,
593 (1991). DC 5259 allows a 10% disability rating to be awarded for
removal of “cartilage,
semilunar.”
As the parties note, the external semilunar cartilage of the knee is also
known as the
“meniscus lateralis” while internal semilunar cartilage of the knee is
known as “meniscus medialis.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 299 (32d ed. 2012). The appellant
had a
menisectomy performed on his right knee during service. R. at 515.
Therefore, the Court agrees
with the parties that this case should be remanded for the Board to
consider DC 5259 and provide
an adequate statement of reasons or bases for its decision.
D. 38 C.F.R. § 4.71a, DC 5261
As the appellant notes, pursuant to 38 C.F.R. § 4.71a, DC 5261, a 10%
disability rating is
warranted if extension of the appellant’s leg is limited to 10 degrees.
The appellant argues that
evidence of the record establishes that his extension is limited to “at
least 10 degrees,” and therefore
the Court should reverse the Board’s decision and order it to assign a 10%
disability rating under this
DC. Appellant’s Br. at 15-16. The Secretary argues that remand is
warranted for the Board to
consider evidence potentially in favor of the appellant’s claim.
Secretary’s Br. at 18-22.
All of the records cited by the appellant in favor of his claim date to
the period after
December 2005. The appellant cites to nothing in the record and makes no
specific arguments
8

concerning the Board’s application of DC 5261 in the period prior to
December 2005. The Court,
therefore, will affirm the Board’s decision for that period. See Hilkert
and Locklear, both supra.
The appellant supports his argument by citing to two records from Dr.
Holmes. In the first,
dated November 2006, Dr. Holmes indicates that the appellant “[l]ags” 20
degrees of extension. R.
at 92. In the second, dated November 2007, Dr. Holmes indicates that the
appellant “lags” 10
degrees of extension. R. at 42. The Board cited both documents in its
decision and stated that
the Board notes that a private medical record dated in November 2006 noted
that the
[appellant] “lags” 20 degrees of extension and a November 2007 private
medical
record noted that he “lags” 10 degrees of extension. However, the earlier
May 2006
and December 2006 VA examiners as well as the later March 2009 VA examiner
all
opined that extension was 0 degree[s]. The Board finds that these VA
examiners[‘]
opinions are more credible than the private opinions because they were
given after
a review of the record on appeal and an examination of the claimant whose
purpose
was ascertaining the current severity of his right knee disorder. . . .
Therefore, since
the most credible evidence of record[] shows that he had knee extension to
0 degrees
during this appeal period, the Board finds that even taking into account
the
[appellant’s] complaints of pain as per 38 C.F.R. §§ 4.40, 4.45 and
DeLuca, supra,
the record does not lead the Board to conclude that the functional losses
he
experiences in his right knee equate to the criteria for a 30 percent
rating because
extension is not limited to 20 degrees. . . . Morever, because extension
is not seen
limited to 10 degrees, even taking into account his complaints of pain, a
separate
compensable rating is also not warranted under [DC] 5261 throughout the
period
from December 23, 2005.
R. at 14-15.
The appellant makes no argument that the Board’s statement ofreasons
orbases for assigning
reduced probative weight to the documents in support of his claim is
inadequate. Instead, he asserts
that the May and December 2006 VA examiners, while finding no range-of-
motion limitations on
extension, noted that the appellant experienced pain on range of motion.
Appellant’s Br. at 16. He
also contends that the March 2009 VA examiner “did not report the point
within the available range
of knee extension [the appellant] first experienced pain.” Id. The
appellant cites to no authority and
makes no argument why these observations are important. He neither renews
the argument he made
under DC 5260, nor does he dispute the Board’s findings concerning
functional loss. Therefore, the
Court can discern no argument beyond the appellant’s bare assertion that
the record indicates that his
knee extension is limited to 10 degrees. See Coker v. Nicholson, 19 Vet.
App. 439, 442 (2006) (“The
9

Court requires that an appellant plead with some particularitythe
allegation of error so that the Court
is able to review and assess the validity of the appellant’s arguments.”),
rev’d on other grounds sub
nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order);
Hilkert and Locklear,
both supra.
The Secretary, however, rescues the appellant from his inadequate argument.
The Secretary
asserts that the Board’s conclusion that the December 2006 VA examiner
stated that the appellant’s
extension was to 0 degrees is erroneous. Secretary’s Br. at 19. The
Secretary appears to be correct.
The examiner recorded the appellant’s range of motion as “from +10 degrees
with further flexion to
115 degrees.” R. at 860. Therefore, the Court finds that the Board’s
misreading of the December
2006 VA examination report renders its statement of reasons or bases
inadequate, and remand is
warranted. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, Gilbert, all supra.
On remand, the Board
should determine the meaningof the examiner’s findings and provide a
statement of reasons or bases
indicating how the examiner’s findings impact its application of DC 5261.
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust
consideradditional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
“[a] remand is meant
to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto providefor”expeditious treatment”of claims
remanded bythe Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s August 4, 2009, decision is AFFIRMED, IN PART, and
VACATED, IN PART,
and the vacated matter is REMANDED to the Board for further proceedings
consistent with this
decision.
DATED: October 28, 2011
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Copies to:
Amanda Dittmar, Esq.
VA General Counsel (027)
11

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