Painful motion rule

[SPO]

I'm looking at a copy of my last c&p exams for arthritis.  I was denied for no diagnosis, which is an issue I am appealing because I have more than one.  However, the examiner checked the block "Pain noted on exam but does not result in / cause functional loss" for many of my joints with varying Ranges of motions( such as flexion or exetension).  Would this qualify as the objective evidence of pain for the painful motion rule?

[GBArmy]

SPO If you are diagnosed and service connected for a disability and your symptoms do not meet the minimum rating criteria,  you would be rated at 0%. But it still is s-c. If you have pain you can get a disability even if it is 0% rating. Others can chime in but I've seen it several times here on Hadit.

[SPO]

What I’m trying to clarify is if that statement from my exam is grounds enough to give me the 10% (the minimum rating) under CFR 4.59 painful motion.  Does that equal objective evidence of painful motion. Some of the joints do not have range of motion reduced enough to get the rating based on that but the do hurt through range of motion

[Vync]

@SPO I was initially SC via 4.59 for TMJ way back in 2000. My max ROM value was not within a ratable range, so they used 4.59 to grant me the minimal 10% rating. I currently have a claim at the BVA for clear and unmistakable error because they failed to consider functional loss (4.40 and 4.45) at that time. Back then, they had more generic C&P exam worksheets vs. the modern DBQ's with the "Pain noted on exam but does not result in / cause functional loss".

However, I think your consideration of 4.59 is promising.

 

Here's the M21-1 article which includes references to how they are supposed to handle 4.59...

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014194/M21-1-Part-III-Subpart-iv-Chapter-4-Section-A-Musculoskeletal-Conditions?query=4.59

 

I included a second article for you: Southall-Norman v. McDonald, Dec 15, 2016, 28 Vet.App. 346 (2016)

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000056859/Southall-Norman-v-McDonald-Dec-15-2016-28-VetApp-346-2016?query=4.59

Quote

What the case is about:

The Court held that 38 C.F.R. 4.59 is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated upon range of motion (ROM) measurements. 

The Court held that section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is evaluated is predicated upon ROM measurements. 

If I am reading that right, "Pain noted on exam but does not result in / cause functional loss" may still qualify you for 10% under 4.59. Of course, you have to get SC first. If you are not SC at all, then it could be a case both the objective (the examiner) and subjective (your lay statements) were ignored."

 

 

 

 

[Carl the Engineer]

First, you need service connection.

I was given a 0% SC for painful movement of my left ankle.  An x-ray was not given as part of the C&P.  A year and a half later I asked for an increase and they did an x-ray and I was given 10%, because of arthritis of the ankle, evidence by x-ray.

Painful movement without arthritis or limited ROM, I'm not sure.

I do know, 10% for x-ray and more for range of motion, etc.

FWIW,

Hamslice

SC is most important.

[SPO]

Love the inconsistency.  4.59 says objective evidence of painful motion should be rated at the minimum compensable level. Digging deeper into m.21 (sorry I don’t remember the exact reference) once X-ray evidence is confirmed, subjective evidence of painful motion such as lay statements are acceptable.  I know the rules vary between inflammatory arthritis and degenerative. My case is inflammatory. I think degenerative must be confirmed by X-ray while inflammatory can be granted by objective painful motion alone due to the fact the don’t always show in xrays.  Wonder if this was part of your issue hamslice.

[Carl the Engineer]

Could very well be.  All of my many arthritic ailments are degenerative.

I was really confused when I got SC of pain, but at a 0% rating, and I did a bunch of reading.

For me, I find it is easiest to go for an increase versus an appeal..  So-far.

Things might change with my new claims I got going,

Hamslice