Petitti v. McDonald


Petitti v. McDonald, 27 Vet.App. 415 (October 28, 2015)
PAINFUL JOINT, 38 C.F.R. § 4.59, DC 5002
HELD: Under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint.” Evidence of an “actually painful” joint is evidence of painful motion of that joint, and this evidence satisfies the requirement of limited motion under DC 5002 for arthritis. The DC’s requirement of “objective” confirmation of pain does not have to come from a doctor; lay statements/evidence can qualify as objective evidence of pain and, thus, painful motion.

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    Veteran was diagnosed with seronegative rheumatoid arthritis (RA) in service and was discharged in 1995. He filed a claim for VA disability benefits for RA the same month he was discharged. His medical records showed complaints of stiffness that improved with medication. On examination, he had full range of motion in all joints.

    In 1996, the RO granted service connection, rated 20% disabling under DC 5002. He did not appeal that decision and it became final.

    In 2007, he filed a request for an increased rating. VA treatment notes showed that the main joints involved were his shoulders, elbows, wrists, hands, feet, and ankles. He underwent a C&P examination and reported morning stiffness that lasted one to two hours, and flare-ups lasting a day. The flare-ups affected his energy level and he could not work for more than 20 consecutive minutes without resting. He had increased pain in his hands if he wrote for more than five minutes. On examination, he had full range of motion in the hands, feet, and ankles, which did not decrease after repetition. However, he reported stiffness in his hands after repetitive motion. The examiner stated that he was employed full time and had not lost any time from his work, but that he recently left his job as a delivery driver because he was afraid his joint pain would increase while driving. The examiner concluded that his RA had “significant effects” on his occupational ability due to “‘decreased mobility, manual dexterity[,] lack of stamina,” and tardiness. The examiner also concluded that his RA affected his daily activities.

    The RO denied the increased rating. The veteran appealed and submitted a statement from his treating VA rheumatologist that his RA had worsened. The RO continued to deny the claim and the veteran appealed to the Board.

    In 2011, the Board remanded the claim for an additional medical examination and for the RO to obtain current medical records. The records showed increased morning joint stiffness, fatigue, pain, and several side effects caused by his medications, including skin rash, infections, rapid heartbeat, vertigo, dizziness, headaches, and blurred vision. His most recent medication resulted in incapacitating flare-ups that lasted two to three days, causing him to miss work.

    A C&P examiner noted that the veteran had pain and stiffness in his joints, but full range of motion. The examiner stated that there was “no objective evidence of painful motion during the range-of-motion testing or following repetitive testing.”

    The RO increased the veteran’s disability rating to 40%, effective October 11, 2011, the date of the C&P examination. In January 2013, the Board determined that he was entitled to the 40% rating for the entire appeal period, since 2007, but denied a rating higher than 40%.

    The veteran appealed to the Court and the parties entered into a joint motion for remand because the Board did not discuss entitlement to an additional separate rating under 38 C.F.R. § 4.59.

    He subsequently submitted a statement regarding his increased symptoms and pain. He also submitted a statement from his daughter regarding her father’s difficulties in functioning due to his pain.

    The Board accepted the veteran’s statements as “credible and competent,” but continued to deny a rating greater than 40% under DC 5002. The Board also denied a 10% rating for each affected joint under § 4.59 because the C&P examination did not show limited motion or objective evidence of pain on movement.

    On appeal to the CAVC, the Court looked at the “interplay” between DC 5002 and 38 C.F.R. § 4.59. At oral argument, the parties agreed that “§ 4.59 and, in this case DC 5002, work in tandem to authorize a minimum compensable rating of 10% per joint, to be combined but not added, for painful motion even though there is no actual limitation of motion.” The parties disagreed on what constitutes “painful motion.”

    The veteran argued that the Board must consider all lay and medical evidence regarding pain. But the Secretary argued that, under § 4.59, the “mere presence of joint pain is not sufficient,” and that the Board is only required to consider “objective” evidence of pain. Because the C&P examination did not show painful motion during range-of-motion testing, the Secretary urged the Court to affirm the Board’s decision.

    The Court disagreed with the Secretary, and reversed the Board’s decision.

    First, the Court discussed the language of DC 5002 and § 4.59, and concluded that the plain language of each provides for potential entitlement to a minimum disability rating. Under DC 5002, that minimum rating is warranted “where there is limitation of motion, which is manifested by ‘satisfactory evidence of pain.’” The Court noted that the last sentence of § 4.59 “ensures that a veteran experiencing an ‘actually’ painful joint is entitled to at least the minimum compensable rating for that joint under the appropriate DC to the joint involved.” Under § 4.59, a minimum rating is warranted where there is an “‘actually painful, unstable, or malaligned joint’” – this regulation does not require painful motion.

    In addition to the plain language of the regulation, the Court looked to its prior case law for guidance on the meaning of the terms “limitation of motion” and “painful motion.”

    In Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991), the Court examined the interplay between § 4.59 and DC 5003 (for degenerative arthritis), which is similar to DC 5002. The Lichtenfels court held that painful motion of a major joint or groups of minor joints, “‘where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10[%] rating, per joint, . . . even though there is no actual limitation of motion.’” 1 Vet.App. at 488. The Court stated that “Lichtenfels held that § 4.59 serves as a bridge linking painful motion and limitation of motion, with the result that a claimant who has painful motion is considered to have limited motion under DC 5003 even though actual motion is not limited.” (emphasis added).

    The Court found that “Lichtenfels’s interpretation of the effect of § 4.59 on DC 5003 also applies to DC 5002,” and concluded that “DC 5002, when read in light of § 4.59, authorizes the minimum disability rating per joint where there is painful, albeit nonlimited, motion.”

    The Court next addressed the issue of what constitutes painful motion and what type of evidence is sufficient to verify such painful motion. The plain language of § 4.59 says nothing about the type of evidence required when assessing painful motion – and, therefore, does not require “objective” evidence of painful motion.

    DC 5002 requires that “limitation of motion” be “objectively confirmed.” The Court found this to mean that “DC 5002 requires that limitation of motion must be corroborated by a person other than the veteran based upon that person’s observations.”

    DC 5002 provides examples of evidence that can “objectively confirm” limitation of motion: “swelling, muscle spasm, or satisfactory evidence of painful motion.” The Court held that the third item, “satisfactory evidence of painful motion,” includes BOTH a doctor’s observations AND a lay person’s observations. The Court thus held: “Observations from a lay person who witnesses a veteran’s painful motion satisfies the requirement of objective and independent verification of a veteran’s painful motion.”

    In this case, the Court found the record replete with medical and lay evidence of the veteran’s painful joints, and thus reversed the Board’s finding that there was no “objective evidence of painful motion,” and remanded for the Board to determine the proper disability rating for the veteran’s RA.

Category: Veterans’ Law