Veteranclaims’s Blog

August 23, 2021

Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011); For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.'” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995));

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6885
BILLY MOSLEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Navy veteran Billy Mosley seeks a rating higher than 10% for his back
disability, for the period from January 22, 2010, to October 19, 2017, and ratings higher than 10%
for a left and a right knee disability, for the period since January 22, 2010.* When rating joint
disabilities, the Board should rely on VA examinations that consider whether and to what extent
pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45, limit a veteran’s ability to function.
Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). Mr. Mosley argues that a May 2010 VA exam is
inadequate to properly rate his functional loss and that the Board’s assessment of functional loss is
not supported by an adequate statement of reasons or bases.
For the back disability, the Secretary concedes that the Board didn’t explain why it relied
on the May 2010 exam to rate the veteran’s back disability for the period between January 2010
and October 2017, as that exam did not adequately portray the extent of the veteran’s functional
loss for that period. The Court accepts this concession and remands as to that matter. With respect

  • The veteran raises no argument as to the Board’s denial of a rating in excess of 40% for his back disability
    for the period since October 19, 2017, so any appeal as to that matter is dismissed. See Pederson v. McDonald, 27
    Vet.App. 276, 283 (2015) (en banc). The Board also remanded a claim for service connection for an acquired
    psychiatric disorder. Because remands are not final Board decisions, the Court does not have jurisdiction over that
    matter. See Martinez v. Wilkie, 31 Vet.App. 170, 173 n.2 (2019).
    2
    to the knee disabilities, however, the Court affirms. Although the May 2010 VA exam does not
    adequately address Mr. Mosley’s functional loss, the Board did not rely solely on that exam in
    evaluating the knee disabilities. Also, the veteran has not demonstrated that the Board provided an
    inadequate explanation for its functional loss assessment.
    I. ANALYSIS
    As noted above, the Board must rely on VA examinations that consider whether and to
    what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45, limit a veteran’s ability to
    function. Sharp, 29 Vet.App. at 32. If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.'” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a non-speculative estimate of a veteran’s functional loss due to pain, they must explain why such an opinion cannot be offered. Id. at 32.
    The Board’s assignments of disability ratings and effective dates are factual assessments
    that this Court reviews for clear error. See McCarroll v. McDonald, 28 Vet.App. 267, 275 (2016)
    (en banc). The Board’s determinations must be upheld if they are supported by a plausible basis in
    the record. Warren v. McDonald, 28 Vet.App. 214, 217-18 (2016). And, as always, the appellant
    bears the burden of demonstrating error on appeal. Bankhead v. Shulkin, 29 Vet.App. 10, 24
    (2017).
    A. Back Disability
    At the outset, the parties agree to a remand for the back-rating claim for the period between
    January 22, 2010, and October 19, 2017, because the Board relied on an inadequate VA exam in
    assessing the veteran’s functional loss. Specifically, Mr. Mosley told the May 2010 examiner that
    he experienced flare-ups that resulted in “pain, weakness, and limited movement,” and the VA
    examiner did not “measure or estimate functional loss during flare-ups.” Secretary’s Br. at 6.
    Despite agreeing on the inadequacy of the 2010 exam, the appellant and the Secretary
    disagree as to the appropriate remedy. The Secretary asserts that, on remand, the Board should
    determine whether the duty to assist requires it to obtain new medical evidence as to the veteran’s
    3
    functional loss during flare-ups, and the appellant maintains that the Court should order the Board
    to obtain a retrospective medical opinion for the relevant time period.
    Because it is a matter that the Agency should address first, the Court remands so it can
    determine whether the duty to assist requires it to obtain a new medical opinion. Even though the
    veteran would like the Court to order a retrospective medical opinion on remand, he also
    acknowledges that “the law provides for retrospective opinions when the existing evidence
    concerning a particular period of time is inadequate.” Reply Br. at 2 (citing Chotta v. Peake, 22
    Vet.App. 80, 84-85 (2008)) (emphasis added). And in this case, there is more medical evidence
    than just the 2010 exam. For example, there is a 2017 examination that addresses functional loss
    and that the veteran has not challenged as inadequate. But whether that exam is sufficient to rate
    the veteran’s functional loss for the relevant time period is a question for the Board to address on
    remand. See Patricio v. Shulkin, 29 Vet.App. 38, 46 (2017) (“This Court may not reverse a Board
    decision and order the award of benefits when there are outstanding material factual matters
    requiring Board resolution.”). Therefore, the back-rating claim is remanded so that the Board can
    assess the veteran’s functional loss from January 2010 to October 2017, including whether there is
    sufficient medical evidence to decide that matter or whether a new opinion is needed.
    B. Bilateral Knee Disability
    Mr. Mosley also experiences functional loss due to pain in his knees; this is undisputed.
    With respect to his bilateral knee disability, Mr. Mosley challenges, first, whether the Board relied
    on medical evidence that was adequate to assess his functional loss and, second, whether it
    provided adequate reasons or bases for its evaluation. Before the Court addresses these matters,
    some background information is needed.
    VA received Mr. Mosley’s claim for VA disability compensation for a bilateral knee injury
    in January 2010. In May, he underwent a VA exam. The VA examiner diagnosed a left and a right
    knee strain and opined that the conditions were related to his military service. At that time, Mr.
    Mosley’s range of motion for both flexion and extension ranged from 0 to 140 degrees. He reported
    flare-ups that impaired his ability to walk and stand for prolonged periods of time, which usually
    began after physical activity, stress, or bending and lifting heavy objects. The 2010 VA examiner
    noted that he had functional loss during flare-ups but did not attempt to estimate the degree of
    impairment or range of motion loss caused by those flare-ups.
    4
    In June, VA granted service connection for the bilateral knee disability, assigning each
    knee a 0% rating effective January 22, 2010. Mr. Mosley appealed, seeking a higher rating.
    Throughout his administrative appeal, Mr. Mosley continued to seek treatment for his knee
    pain. In 2012, he described his back and knee pain as “aching, throbbing, shooting, sharp,
    exhausting, tiring, penetrating, nagging, miserable, [and] unbearable at times.” R. at 2724. In 2013,
    he described his back and knee pain as “sharp, dull, aching, pressing, burning, tingling, throbbing,
    pulling, pricking, shooting, pins/needles.” R. at 2332 (capitalization normalized). And in 2016, he
    said that his pain had worsened if he was inactive and after bending, lifting, or twisting. At a March
    2017 Board hearing, Mr. Mosley testified that his knee pain was triggered by bending, lifting,
    walking, and running.
    The Board remanded the claim for a new exam in October 2017. At that exam, Mr. Mosley
    reported that his knee symptoms began in 2004 and have “stayed the same.” R. at 1746. He had
    120 degrees of flexion and extension in his right knee and 130 degrees of flexion and extension in
    his left. However, Mr. Mosley reported that pain and fatigue limited his function during flare-ups.
    The veteran was not examined during a flare-up. The examiner nonetheless opined as to the
    veteran’s range of motion loss during flares, estimating that he would be limited to 90 degrees of
    flexion and extension in both knees during flare-ups. Phrased differently, Mr. Mosley lost an
    additional 30 degrees of motion in his right knee and 40 degrees of motion in his left during flareups.
    Additional factors contributing to his bilateral knee disability were listed as: less movement
    than normal, disturbance of locomotion, and interferences with sitting and standing.
    The case returned to the Board in August 2019, which assigned an initial 10% rating for
    each knee. The Board concluded that the veteran’s flexion and extension, even when limited by
    pain, did not warrant a compensable rating (i.e., higher than 0%) under the applicable diagnostic
    codes (DCs) under 38 C.F.R. § 4.71. However, the Board found that Mr. Mosely exhibited painful
    motion, especially during flare-ups, and consistently reported difficulties “in walking and standing
    for a prolonged time, bending, and lifting objects.” R. at 15. It therefore assigned a 10% rating “for
    painful motion under 38 C.F.R. § 4.59″—a regulation providing for a minimum compensable
    (usually, 10%) rating where limitation of motion is noncompensable under the appropriate DCs
    but where the veteran experiences pain on motion. Id. This appeal followed.
    As noted earlier, Mr. Mosley challenges the adequacy of the medical evidence that the
    Board relied on and its statement of reasons or bases. The Court addresses the exam issue first.
    5
  1. Adequacy of Exams
    Mr. Mosley contends that the evidence of record was inadequate for the Board to assess
    functional loss in his knees. Specifically, he says that the 2010 exam did not adequately address
    functional loss during flare-ups and that VA was obligated to make up for this inadequate evidence
    by obtaining a retrospective opinion to adequately evaluate his functional loss prior to October
    2017.
    The Court agrees that the 2010 exam is inadequate to evaluate the veteran’s functional loss
    during a flare-up. The examiner did not estimate the veteran’s functional loss during flare-ups in
    terms of range of motions or, at the very least, explain why such an estimate could not be provided.
    See Sharp, 29 Vet.App. at 33. Thus, that exam is not adequate by itself to rate the veteran’s
    functional loss for the period before October 2017. However, the Board’s knee-disability rating
    covered the entire period on appeal—that is, the period from January 22, 2010, to the present. It is
    not apparent why the evidentiary challenge on appeal is limited to “the period prior to October
    2017.” Reply Br. at 3. This artificial limitation diverts focus away from the October 2017 VA
    examination report, which also informed the Board’s rating assignment. Indeed, Mr. Mosley does
    not challenge the adequacy of the 2017 exam; he simply argues that it does “not explicitly address
    the period dating back to January 2010.” Appellant’s Br. at 9.
    But there is no showing that the 2017 exam is inadequate to rate the veteran’s functional
    loss for the period before October 2017. The examiner reviewed the veteran’s e-folder and noted
    that his symptoms had “stayed the same” since 2004. R. at 1746. Additionally, the examiner
    estimated the range of motion loss during flare-ups based on the evidence and the veteran’s lay
    reports of functional loss, as he was not experiencing a flare-up on the day of the exam. There’s no
    assertion from the appellant or indication in the record that Mr. Mosley’s reports of functional loss
    changed between January 2010 and October 2017. For instance, in May 2010, the veteran said that
    his flare-ups caused difficulties with walking and standing for prolonged periods of time, R. at
    3558, and in October 2017, the examiner noted that the veteran’s difficulties included sitting and
    standing. R. at 1749. Simply put, despite the inadequacies found in the 2010 exam, the Board’s
    assessment of functional loss and rating assignment was supported by an adequate October 2017
    exam.
    For these reasons, the Court sees no need to remand for a retrospective medical opinion.
    Retrospective medical opinions may be obtained, “if a disability rating cannot be awarded based
    6
    on the available evidence.” Chotta, 22 Vet.App. at 85-86. In Chotta, for example, the Court found
    that a retrospective opinion may have been “especially” warranted because there was an absence
    of medical evidence for 50 years for VA to use to evaluate the veteran’s service-connected
    condition during that period. Id. Unlike Chotta, the Board here relied on treatment records and an
    adequate 2017 VA medical exam to assign a 10% rating for each knee for the entire appeal period.
    Thus, the Board had sufficient evidence to assign a 10% rating for each knee. The appellant has
    not demonstrated that the evidence was inadequate to rate his functional loss, and so remanding
    for a retrospective medical opinion “would result in this Court’s unnecessarily imposing additional
    burdens on the [Agency] with no benefit flowing to the veteran.” Soyini v. Derwinski, 1 Vet.App.
    540, 546 (1991).
  2. Reasons or Bases
    The veteran’s last argument is that the Board erred in “limiting its assessment” to his painful
    movements under § 4.71a instead of discussing the full extent of his functional loss due to other
    factors like excess fatigability, incoordination, weakness, and interferences with sitting and
    standing. Appellant’s Br. at 17; Reply Br. at 7. He argues that those symptoms are akin to the
    functional loss factors listed in 38 C.F.R. §§ 4.40 and 4.45 and that the Board should have
    considered whether such factors warranted a higher rating under the mechanical criteria found in
    § 4.71a.
    This argument is unavailing as it misunderstands the interplay between §§§ 4.40, 4.45, and
    4.71a. He suggests that §§ 4.40 and 4.45 can provide separate or additional bases for a higher
    rating under § 4.71a. That is incorrect.
    In Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016), the Federal Circuit
    made two things clear: first, Ҥ 4.40 must be viewed in light of the explicitly listed disability ratings
    for the musculoskeletal system in § 4.71a”; second, “the guidance of § 4.40 is intended to be used
    in understanding the nature of a veteran’s disability, after which a rating is determined based on
    the § 4.71a criteria.” This Court’s caselaw—including Mitchell, DeLuca, and Sharp—carefully
    explains how VA examiners and adjudicators must incorporate §§ 4.40 and 4.45 into their
    examinations and evaluations of musculoskeletal disabilities. Thompson simply put to rest the
    argument that “§ 4.40 and similar guidance” provide a basis for a rating distinct from the particular
    DC at issue; it did not alter the way § 4.40 and related provisions are applied. So, even when
    considering functional loss under §§ 4.40 and 4.45, the Board remains guided by the criteria in the
    7
    relevant DC in § 4.71a. And therefore, the Court is unconvinced by the appellant’s argument that
    remand is required so the Board can reassess §§ 4.40 and 4.45.
    Additionally, there is no merit to the argument that the Board implicitly found that Mr.
    Mosley had no functional loss during flare-ups or after repeated use over time when it concluded
    that his “limitation of flexion did not decrease, even when limited by pain, to the level of a higher
    evaluation.” R. at 15. This argument once again overlooks the October 2017 exam, which
    estimated that his range of loss during flare-ups and after repeated use over time was limited only
    to 90 degrees, which still does not equate to a compensable rating for his knees under § 4.71a.
    Thus, the Board’s finding that the veteran’s functional loss does not entitle him to a rating under
    § 4.71a is supported by record evidence.
    II. CONCLUSION
    The Court VACATES the portion of the August 1, 2019, Board decision that denied an
    increased rating for the veteran’s back disability for the period from January 22, 2010, to October
    19, 2017, and REMANDS that matter for readjudication. The Court AFFIRMS the portion of the
    decision that assigned 10% ratings for the veteran’s left and right knee disabilities back to January
    22, 2010. The balance of the appeal is DISMISSED.
    DATED: June 22, 2021
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.