Which ROM is used for Compensation

[pminme]

I’m being rated on both knees.  I know ROM is involved in rating the case, but which ROM do they use?  Initial, after 3, or flare up?  

[MrStryker]

Medical evidence used to evaluate functional impairment due to pain must account for painful motion, pain on use, and pain during flare-ups or with repeated use over a period of time.

 

As a part of the assessment conducted in accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), the medical evidence must

• clearly indicate the exact degree of movement at which pain limits motion in the affected joint, and
• include the findings of at least three repetitions of ROM.

Per Mitchell v. Shinseki, 25 Vet.App. 32 (2011), when pain is associated with movement, an examiner must opine or the medical evidence must show whether pain could significantly limit functional ability

• during flare-ups, or
• when the joint is used repeatedly over a period of time, and 
• if there is functional impairment found during flare-ups or with repeated use over a period of time, the examiner must provide, if feasible, the degree of additional LOM due to pain on use or during flare-ups.

Per Correia v. McDonald, 28 Vet.App. 158 (2016)

• the joints involved must be tested for pain
  • on both active and passive motion, and
  • in weight-bearing and nonweight-bearing, and
• if possible, the ROM of the opposite, undamaged joint must be assessed for comparison.

Important:  If the examiner is unable to provide any of the above findings, he or she must

• indicate that he/she cannot determine, without resort to mere speculation, whether any of these factors cause additional functional loss, and
• provide the rationale for this opinion.  

Note:  Per Jones (M.) v. Shinseki, 23 Vet.App. 382 (2010), the VA may only accept a medical examiner’s conclusion that an opinion would be speculative if

• the examiner has explained the basis for such an opinion, identifying what facts cannot be determined, or
• the basis for the opinion is otherwise apparent in VA’s review of the evidence.

[MrStryker]

Multiple precedential decisions have impacted the application of 38 CFR 4.59.  Refer to the table below for a listing of impactful precedential court holdings, a brief description of the impact, and the applicability date (date of decision) for each.  More detailed explanations for each holding and its impact on the application of 38 CFR 4.59 in claims processing can be found in M21-1, Part III, Subpart iv, 4.A.1.c-i.    Holding Summary of Impact Date of Decision DeLuca v. Brown, 8 Vet.App. 202 (1995) Clarified exam requirements to assess the impact of pain on functional impairment including additional loss of motion due to pain. December 22, 1995 Burton v. Shinseki, 25 Vet.App. 1 (2011) 38 CFR 4.59 is not limited in applicability to arthritis claims. August 4, 2011 Mitchell v. Shinseki, 25 Vet.App. 32 (2011) Clarified  exam requirements for assessing impact of painful motion with use and during flare-ups, and that when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion. August 23, 2011 Petitti v. McDonald, 27 Vet.App. 415 (2015) 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint. 38 CFR 4.71a, DC 5002 does require objective evidence of painful motion.  October 28, 2015 Sowers v. McDonald, 27 Vet.App. 472 (2016) 38 CFR 4.59 is  limited by the DC applicable to the claimant’s disability, and inapplicable to a DC that does not provide a compensable evaluation.   Note:  The Sowers holding influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59. February 12, 2016   Note:  The policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59 is effective May 23, 2016. Correia v. McDonald, 28 Vet.App. 158 (2016) Clarified exam requirements for ROM testing to evaluate joint disabilities for painful motion in weight-bearing, nonweight-bearing, with active and passive motion, and in comparison to the opposite joint. Directed that pain with passive motion (even in the absence of another indication of painful motion) is sufficient to satisfy the criteria for entitlement to the minimum compensable evaluation under 38 CFR 4.59. July 5, 2016 Southall-Norman v. McDonald, 28 Vet.App. 346 (2016) 38 CFR 4.59 is not limited to DCs involving limited ROM.  December 15, 2016   Reference:  For more information on assignment of effective dates associated with precedential court decisions, see M21-1, Part III, Subpart iv, 5.C.7.l-q.