Veteranclaims’s Blog

March 18, 2022

Painful joint motion; Section 4.59; Burton v. Shinseki, 25 Vet.App.; VA Fast Letter 04 – 22 (Oct.1, 2004);

Section 4.59, one of several regulations that precedes VA’s rating schedule, is entitled “Painful motion”and provides that “[i]t 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.”38 C.F.R. §4.59 (2020); The Court has held that the regulation applies to “joint pain in general” and is not limited solely to joint pain due to arthritis. Burton v. Shinseki, 25 Vet.App.1,5 (2011), aff’d ,479 F.App’x 978 (Fed.Cir.2012); see Petitti v.McDonald ,27 Vet.App.415,424-26 (2015) (“Under §4.59, the trigger for a minimum disability rating is an ‘actually painful, unstable, or malaligned joint[].'”(quoting 38 C.F.R.§4.59)).

Section 4.59 announces VA’s intention that the Rating Schedule “recognize[s]painful motion with joint or periarticular pathology as productive of disability …entitled to at least the minimum compensable rating for the joint.”38 C.F.R.§4.59 (2019); see Burton v. Shinseki ,25 Vet.App.1,3 – 5 (2011)(noting the Secretary’s position that §4.59 is not limited to the arthritis context); VA Fast Letter 04 – 22 (Oct.1,2004) (same). Here,the Board did not discuss that regulation or provide reasons why Mr. Brinson’s report of pain did not warrant the minimum compensable rating for the 10-11. Because §4.59 “is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable,or malaligned joints or periarticular regions, “including the feet, Southall-Norman v. McDonald, 28 Vet.App.346, 354 (2016).

Burton v. Shinseki, 25 Vet.App.1,5 (2011)(“When §4.59 is raised by the claimant or reasonably raised by the record,even in nonarthritis contexts, the Board should address its applicability.”)

Burton v. Shinseki, 25 Vet.App.1,6 (2011) (concluding that the Board provided inadequate reasons or bases for its decision because it relied on a medical examination that recorded the veteran’s range of shoulder motion without accounting for his subjective complaints of functional loss due to shoulder pain)

Burton v. Shinseki, 25 Vet.App.1,5 (2011)(declining to infer a limitation from the text of 38 C.F.R.§ 4.59)

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