Veteranclaims’s Blog

October 14, 2021

Single Judge Application; pain causes functional loss; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011); Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in §§ 4.40 and 4.45, limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). 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);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:32 am

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 appealed a Board decision denying a rating
higher than 10% for his back disability and ratings higher than 10% for a left and a right knee
disability.* On June 22, 2021, this Court issued a memorandum decision that remanded Mr.
Mosley’s back claim but affirmed the Board’s decision as to the knee claim. Specifically, the
memorandum decision held that, although the May 2010 VA exam failed to address adequately
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.
Mr. Mosely moves here for reconsideration, claiming that the Court misunderstood his
argument as seeking a separate rating for his knee disabilities; instead, he invoked 38 C.F.R. §§
4.40 and 4.45 to show that the Board could have assigned a higher rating under 38 C.F.R. § 4.71a.
The Court grants reconsideration so that it can offer some clarifying remarks but otherwise retains
the rulings from the earlier decision. The Court thus withdraws the June 22, 2021, decision and
*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).
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issues this decision in its stead. Once again, the Court remands Mr. Mosley’s back claim and
affirms as to his knee claim.
I. ANALYSIS
The Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in §§ 4.40 and 4.45, limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). 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)). An examiner who is unable
to offer a nonspeculative estimate of a veteran’s functional loss due to pain 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
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.
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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.
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.
4
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 interference 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 § 4.71a. 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.
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  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 motion 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 in 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 interference with sitting and
    standing. Appellant’s Br. at 17; Reply Br. at 7. His argument is that the Board should have
    considered whether such factors established that he had functional impairment equivalent to
    “flexion limited to 30 degrees, which would warrant a 20[%] rating.” Appellant’s Motion for
    Reconsideration at 3.
    In the original memorandum decision, this Court rejected the appellant’s argument in this
    regard, finding that he incorrectly suggested that §§ 4.40 and 4.45 could provide separate or
    additional bases for a higher rating under § 4.71a. However, Mr. Mosley was not requesting a
    separate or additional rating under §§ 4.40 or 4.45 but, rather, asking for remand so the Board
    could consider whether he is entitled to ratings higher than 10% under the applicable DC based on
    the factors that he exhibited in §§ 4.40 and 4.45. The Court clarifies that the appellant’s reading of
    the law is correct, but we nonetheless affirm because he does not demonstrate that the Board
    committed a legal error.
    Indeed, VA may craft “a rating higher than what is otherwise supported by a mechanical
    application of the DC.” Lyles v. Shulkin, 29 Vet.App. 107, 117 (2017). This can happen in three
    ways. “The first two ways have to do with increasing a veteran’s evaluation under” the factors
    listed in §§ 4.40 and 4.45 (the Deluca factors). Id. at 117-18. Increasing a joint disability rating
    under the Deluca factors “is based on additional functional loss with use or during flare-ups, which
    7
    should, if feasible, be portrayed in terms of the degree of additional range-of-motion lost.” Id. at
  3. Third, if the applicable DC does not support a compensable evaluation, a veteran may be
    awarded a minimum compensable evaluation for “actually painful, unstable, or malaligned joints”
    under § 4.59. Id.
    The Federal Circuit in Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016), further
    clarified that, even when considering functional loss under §§ 4.40 and 4.45, the Board remains
    guided by the criteria in the relevant DC in § 4.71a. Specifically, “§ 4.40 must be viewed in light
    of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a”; and, “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.” Id. at 785-86. And 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.
    While the appellant suggests that the Board did not adequately address the Deluca factors
    in his case, he overlooks that the Board considered such factors by way of the October 2017 VA
    examination report. Therein, the examiner explicitly evaluated his range of motion loss due to
    factors such as inability to execute skilled movements, weakness, excess fatigability, and ability
    to sit and stand for a prolonged time. R. at 1754. So, in relying on the October 2017 medical
    opinion to rate the veteran’s disability, the Board properly considered the Deluca factors that the
    veteran exhibited and rated him accordingly.
    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 motion 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.
    8
    II. CONCLUSION
    The motion for single-judge reconsideration is granted; the June 22, 2021, memorandum
    decision is WITHDRAWN; and this decision is issued in its stead. 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: August 25, 2021
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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