Can you say Deluca?
DECISION ASSESSMENT DOCUMENT
DOCKET NO.: 94-242 ACTIVITY: RATING
NAME: DeLuca v. Brown
ISSUE(S): 38 C.F.R. §§ 4.40 and 4.45
ACTION BY COURT: Remand DECISION DATE: 9/22/95
BEFORE JUDGES: Nebeker, Kramer, Steinberg
FACTS: The veteran has established service connection for arthralgias of the left shoulder. A 20% evaluation was awarded in June 1990, following a VA examination which showed limitation of motion. The impression of the examiner was "frozen shoulder syndrome....with some degree of psychogenic overlay." It was noted that restricted mobility was due, in part, to voluntary guarding. On appeal to the BVA, the decision was affirmed. In a memorandum decision in May 1993, the Court remanded the appeal to the BVA to consider the application of 38 C.F.R. §§ 4.40 and 4.45. The BVA undertook no additional development but determined that sections 4.40 and 4.45 did not provide for an increased rating because the diagnostic code assigned under 38 C.F.R. § 4.71, 5201, "contemplates the functional loss resulting from pain on undertaking motion," and because the disability contemplated by section 4.45 is normally associated with muscle injury. Oral argument was presented on 7/31/95.
ANALYSIS: The Court held that DC 5201 does not subsume section 4.40 and that section 4.14 (pyramiding) does not prohibit consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups. The Court also held that the BVA's reading of section 4.45 cannot be sustained. The plain language of the regulation does not limit the evaluation criteria contained therein to muscle injuries. As such, a remand was required to obtain a new examination. The medical examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time. This was to be portrayed in terms of the degree of additional range of motion lost due to pain on use or during flare-ups. A similar opinion was to be requested concerning the disability factors contained in section 4.45.
RECOMMENDED VBA ACTION(S): None. The requirement to consider the provisions of 38 C.F.R. §§ 4.40 and 4.45 when evaluating disabilities involving the joints has been stated in other Court decisions, notably Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Quarles v. Derwinski, 3 Vet. App. 129 (1992); and Ferraro v. Derwinski, 1 Vet. App. 326 (1991).
ACTION BY DIRECTOR, C&P SERVICE:
Approved?
_X_ ___ ______________/s/___________________ 10/18/95
Yes No J. Gary Hickman Date