A diagnosed disability with no compensable symptoms

[Carl the Engineer]

OK experts,

Need a little help here.  I claimed left ankle/foot pain secondary to my right foot plantar fasciitis.  I was granted service connection, but at a 0% rate.  I went to my podiatrist and told him my left ankle was unstable and had pain and he prescribed a foot brace, etc.  All of this is in the claim.  Anyway, why not comp ($) for pain?

 

From my letter;

1. Service connection for left ankle achilles tendonitis (claimed as left ankle pain) as secondary to the service-connected disability of right foot plantar fasciitis.

Service connection for left ankle achilles tendonitis (claimed as left ankle pain) has been established as related to the service-connected disability of right foot plantar fasciitis. A noncompensable evaluation is assigned from May 10, 2016, the date we received your claim. We have assigned a noncompensable evaluation for your left ankle achilles tendonitis (claimed as left ankle pain) based on:

• A diagnosed disability with no compensable symptoms

Note: In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. {38 CFR §4.31}

The provisions of 38 CFR §4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and

Mitchell v. Shinseki, have been considered and are not warranted.

A higher evaluation of 10 percent is not warranted for limitation of motion of the ankle unless the evidence shows:

• Moderate limitation of motion of the ankle based on dorsiflexion less than 15 degrees or plantar flexion less than 30 degrees; or,

• Painful motion of the ankle.

 

From C&P exam;

LEFT FOOT:

Is there pain on physical exam?

[X] Yes [ ] No

If yes, (there is pain on physical exam), does the pain contribute to

functional loss?

[X] Yes [ ] No

 

This is one of the recent cases where at everytime the rater asked for a clarification from the examiner and when she responded it went to a different RO.  Go figure.

Thanks for any help,

Hamslice

 

[Carl the Engineer]

Bump for the weekend crowd..........

 

Hamslice

 

 

[broncovet]

Deluca vs Brown explains that you should get paid for pain.  As AskVets first explains it:

Further, "functional loss due to pain" should be rated and evaluated separately because the Diagnostic Codes do not "contemplate the functional loss resulting from pain on undertaking motion."  DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (describing the holding in DeLuca as "requir[ing] that the disabling effect of painful motion be considered when rating joint disabilities").  However, "pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  "Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'"  Id. (quoting 38 C.F.R. § 4.40).

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=2812

Edited February 25, 2017 by broncovet
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