Limited Motion Due To Pain

[hurryupnwait]

LIMITATION OF MOTION DUE TO PAIN APPLY 38 C.F.R. § 4.40

§ The Court has held that when the VA evaluates a disability which causes limitation of motion due to pain, the additional factors involved in a disability evaluation, as described by 38 C.F.R. § 4.40 (1995), are also required “to be considered and portrayed in the rating examination as to functional loss on use or due to flare-ups.” DeLuca v. Brown, 8 Vet.App. 202 (1995).

Does this mean that one should be rated at the flare up level?

[theotherguy]

It means that it is possible to do so. The problem is that the majority of VA examinations are conducted when a vet is not experiencing a flareup and the examiner will state something to the effect of "cannot determine the extent of additional functional limitation during reported flareups without resorting to mere speculation."

The best thing you can do during a flareup is get to your doctor (if possible) and have them complete whatever testing is necessary to rate your disability.

Just to make this clear; having pain alone will not warrant a disability rating. It is the painful motion as detailed in 38 CFR 4.59 that can boost your evaluation. In fact, you could have full range of motion and still receive the minimum compensable evaluation for the joint if there are objective findings of painful motion. This isn't always 10% either since some joints like the shoulder start at 20%. Some raters will try and use the 10% for the scapula impairment in this situation which is just flat out wrong. If you run into that situation you should appeal with great haste.

I'm sure that someone in here has posted something at one time or another about the Deluca case which gives a solid breakdown of how these things work. I'd recommend looking through it to get your answers as well as 4.40, 4.45, and most definitely 4.59.

Edited April 27, 2007 by theotherguy

[jbasser]

VA rating criteria for Limitation of motion is based ont he range of motion. it states wether or not pain radiates. On the other hand, Neurologic components such as raciculopathy is ratred separate based on the effect of the nerve and the amount of paralysis. ALso the regs were re written in 2003

For IVDS pain is considered as to incapacitating episodes.

[sixthscents]

VA rating criteria for Limitation of motion is based ont he range of motion. it states wether or not pain radiates

I'm sorry but no... as pointed out in the opening... pain is a factor considered in the rating of motion of joints.

Neurologic components such as raciculopathy is ratred separate based on the effect of the nerve and the amount of paralysis

Radiculapathy is pain... which radiates down or out a nerve. Nerve damage is rated, based upon the severity of injury, with pain again as a factor of consideration.

Pain, in ANY situation, is not rateable solely by and of its own. There is no rating table for pain.

IVDS, is another method of rating injury to the spine, which is based upon incapacitating episodes, and their frequency, again of which pain is a factor.... otherwise how could anyone be incapacitated?

[jbasser]

VA rating criteria for Limitation of motion is based ont he range of motion. it states wether or not pain radiates

I'm sorry but no... as pointed out in the opening... pain is a factor considered in the rating of motion of joints.

Neurologic components such as raciculopathy is ratred separate based on the effect of the nerve and the amount of paralysis

Radiculapathy is pain... which radiates down or out a nerve. Nerve damage is rated, based upon the severity of injury, with pain again as a factor of consideration.

Pain, in ANY situation, is not rateable solely by and of its own. There is no rating table for pain.

IVDS, is another method of rating injury to the spine, which is based upon incapacitating episodes, and their frequency, again of which pain is a factor.... otherwise how could anyone be incapacitated?

§ 4.45 The joints.

As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:

(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).

( More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).

© Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).

(d) Excess fatigability.

(e) Incoordination, impaired ability to execute skilled movements smoothly.

(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

The actual rating criteria for the spine:

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):

With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine 100

Unfavorable ankylosis of the entire thoracolumbar spine 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

[theotherguy]

jbasser,

This is one of the many irregularities in the rating schedule...

It is entirely possible to receive secondary compensation for radiculopathy if the disability has been diagnosed and the symptoms are sufficient for them to rate separately. Having said that, a lot of raters will use the same provision you posted to not award benefits unless they are specifically claimed by the vet.

Another example of this is fibromyalgia, which lists a myriad of complications criteria for the diagnosis. Many guys I have helped have obtained s/c for some of the conditions listed in the "with or without" portion of the rating schedule.