Southall-Norman v. McDonald, docket no. 15-1357 (Dec. 15, 2016)

HELD: VA regulations require the award of a minimum compensable disability rating where there is “evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC [Diagnostic Code],” regardless of whether that DC is “predicated on range of motion measurements.” 

SUMMARY: Veteran Crystal D. Southall-Norman was granted service connection for bilateral hallux valgus and hemorrhoids, rated 0% for both conditions. She appealed for compensable ratings, and the Board granted 10% for the hemorrhoid condition and remanded the bilateral foot issue for another examination. She appealed the issue of the 10% hemorrhoid rating to the Court, and the parties entered into a Joint Motion for Remand stipulating that the Board failed to consider whether she was entitled to a separate compensable rating based on loss of sphincter control. The JMR directed the Board to address Ms. Southall-Norman’s reports of fecal leakage and consider the credibility and probative value of those reports in light of the fact that the relevant Diagnostic Code (38 C.F.R. § 4.114, DC 7332) does not require that such leakage “be confirmed by objective findings.”

Meanwhile, Ms. Southall-Norman was afforded another C&P examination for her feet. The examiner diagnosed bilateral pes planus and opined that this condition was related to her service-connected bilateral hallux valgus. The RO granted service connection for bilateral pes planus, rated 50% disabling under 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the C&P examination.

The appeal returned to the Board, which denied a compensable rating for her foot condition prior to the date of the C&P examination, under either DC 5276 (flatfoot) or 5280 (hallux valgus), because her symptoms were only mild or moderate symptoms during that time. The Board did not mention 38 C.F.R. § 4.59 (“painful motion”) in evaluating her foot condition. The Board also determined that she was not entitled to a separate rating for sphincter impairment because her reports of fecal leakage were “inconsistent” and “contradicted by the medical evidence of record.” The Board found that she “did not always differentiate between fecal leakage and other types of leakage,” and determined that her reports of fecal leakage “were insufficient to demonstrate constant slight or occasional moderate fecal leakage required for a compensable evaluation under DC 7332.”

In this present decision, the Court first addressed the foot condition and the appellant’s argument that the Board failed to discuss 38 C.F.R. § 4.59. The Secretary argued that the Board was not required to discuss § 4.59 because this regulation only applies when evaluating a joint disability under a DC based on range of motion. Because the relevant DCs in this case - DCs 5276 and 5280 - do not mention range of motion, the Secretary asserted that the Board need not discuss § 4.59. In her reply brief, Ms. Southall-Norman argued that the Secretary’s interpretation was inconsistent with the plain language of the regulation, which did not expressly limit itself to conditions based on range of motion. Alternatively, she argued that the Court should not defer to the Secretary’s interpretation because the Secretary had taken contrary positions in other cases.

The Court examined the language of the regulation and held that the “plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.” The Court added:

§ 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.

The Court further determined that even if § 4.59 was ambiguous, the Court would not defer to the Secretary’s interpretation “because it does not reflect the agency’s considered view on the matter, as he has not consistently adhered to that interpretation.” To support this conclusion, the Court pointed to the Secretary's contrary position taken during oral argument on another case, as well as a number of single judge (i.e., nonprecendential) decisions.

Advocacy Note: The Court’s Rules allow for citation to nonprecedential authority “for the persuasive value of their logic and reasoning” and only if “no clear precedent exists on point and the party includes a discussion of the reasoning as applied to the instant case.” U.S.C.A.V.C. Rule 30(a).

With respect to a separate compensable rating for sphincter control, the Court determined that the Board did not adequately explain its rejection of Ms. Southall-Norman’s lay statements. More specifically, the Court rejected the Board’s credibility determination. The Court identified one of the “putative inconsistencies” noted by the Board and determined that it was consistent with her prior statement. The Court also found that the Board improperly questioned the credibility of Ms. Southall-Norman’s lay statements as inconsistent with a C&P examiner’s finding because the Board failed to acknowledge other evidence that was consistent with her statement. The Court held that “[a]lthough the Board is allowed to find a veteran not credible based on inconsistencies between medical evidence and lay evidence, . .. it must account for the potentially favorable material evidence of record when doing so.” The Court remanded both issues to the Board.

Advocacy Note: Although the primary holding of this case is that § 4.59 must be considered in evaluating all musculoskeletal disabilities – not just those predicated on range of motion – I found the Court’s review of the Board’s credibility determination to be refreshing. Instead of simply deferring to the Board’s “fact finding,” the Court carefully examined the evidence and rejected the Board’s determination that it was inconsistent with the appellant’s statements. The Court's language regarding the Board's duty to "account for potentially favorable material evidence of record" in making a credibility determination will be useful to advocates in cases where the Board appears to cherry-pick and/or mischaracterize the evidence of record.



Correia v. McDonald, docket no. 13-3238 (July 5, 2016)

HELD: “[T]o be adequate, a VA examination of the joints must, wherever possible,[] include the results of the range of motion testing described in the final sentence of § 4.59.” This includes tests for both passive and active motion, in both weight-bearing and non-weight-bearing circumstances, and testing of the opposite, undamaged joint. 

SUMMARY: The veteran in this case appealed the denial of increased ratings for his knees. He argued that the VA examination report on which the Board relied to deny the increased ratings was inadequate because the examiner did not perform all the range-of-motion testing required by 38 C.F.R. § 4.59. To support this argument, the appellant’s attorney submitted two nonprecedential Court decisions showing the Secretary’s position in those cases.

The Secretary first moved to strike the portions of the appellant’s brief that cited to the nonprecedential cases. The Court denied this motion, finding that the decisions were not used for “precedential effect,” but rather to show the factual circumstances and the Secretary’s position in those cases. In a footnote, the Court noted that the rule regarding citation to nonprecedential authority was revised after the Secretary filed his motion, adding that the Court could have taken judicial notice of the Secretary’s contrary positions.

Regarding the regulation, the Secretary argued that it does not establish “a rigid set of protocols” for examinations, and alternatively argued that the regulation was ambiguous and therefore the Court should defer to VA’s interpretation of it.

The Court examined the plain language of the regulation and noted that it describes “ways in which painful motion can be discerned” and “the kind of test results that ‘should’ be obtained to permit an adjudicate to assess the effect of painful motion – range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.” (emphasis in original). In addition, the regulation states that, if possible, the same tests should be obtained for the undamaged joint. The Court thus narrowed its analysis here to what the word “should” means.

The Court found that, in the context of § 4.59, the word “should” was ambiguous, and next questioned whether it should defer to the Secretary’s interpretation. The Court concluded that no deference was due to the Secretary’s “interpretation that the regulation creates no requirement that particular kinds of range of motion testing be performed” because the Secretary has previously conceded remand in “at least two cases” (nonprecential) “where the Board relied on medical evidence that did not comport with the final sentence of § 4.59.”

On its own, the Court found several additional cases where the Secretary previously interpreted § 4.59 “in accordance with Mr. Correia’s position” – and only found one other case where the Secretary argued that the regulation “does not create a testing requirement with which VA examiners must comply.” The Court thus stated that “given that the Secretary appears to ordinarily concede before this Court that § 4.59 creates a requirement for VA examiners to conduct the range of motion testing listed in the final sentence where such testing can be performed, the Court cannot conclude that the Secretary’s proffered interpretation in this case represents ‘the agency’s considered view on the matter.’” 

The Court thus held that “the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” The regulation identifies “three things examiners ‘should’ do” – “(1) carefully note facial expression or wincing on pressure or manipulation and relate that to the affected joint; (2) carefully note crepitation in the soft tissues or joint structures; and (3) test for pain throughout range of motion in various ways.” 

NOTE: On July 26, 2016, the Secretary filed a motion for reconsideration and/or full court review. 



Sowers v. McDonald, 27 Vet.App. 472 (Feb. 12, 2016)

HELD: 38 C.F.R. § 4.59, which provides for a minimum compensable rating for a painful joint, is limited by the applicable diagnostic code and does not apply where that diagnostic code does not contain a compensable rating.

SUMMARY: Mr. Sowers was service connected for a right ring finger disability, and assigned a noncompensable disability rating under Diagnostic Code (DC) 5010-5230. He appealed this decision and the Board determined that (1) DC 5010 was not appropriate since there was no arthritis substantiated by x-rays; (2) the evidence did not establish ankylosis; (3) the appropriate DC, 5230, did not provide for a compensable rating – even for any limitation of motion; and (4) extraschedular consideration was not warranted.

On appeal to the Court, Mr. Sowers argued that he was entitled to a minimum compensable rating under 38 C.F.R. § 4.59, asserting that this regulation “is designed to add flexibility to the rating schedule.” He acknowledged that the assigned DC, 5230, does not provide a compensable rating, but argued that the DC for ankylosis of the finger, 5227, does provide for a compensable rating “where the disability equates to amputation.” He argued that VA should used that DC to “build up a rating” that would entitle him to a compensable rating under 38 C.F.R. § 4.59.

The Secretary argued that § 4.59 did not apply because DC 5230 only contains a 0% rating.

The Court acknowledged that the rating schedule contained “flexible” provisions, such as 38 C.F.R. § 3.321 (extraschedular evaluation), § 4.20 (analogous ratings), and § 4.27 (customizable DCs). However, the Court found that “these flexible provisions are limited by the rating schedule.” The Court also noted its recent holding in Petitti v. McDonald, 27 Vet.App. 415 (2015), which confirmed that § 4.59 “ensures that a veteran experiencing an ‘actually’ painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved.” The Court added that “Petitti emphasized that § 4.59 is not an independent provision that may be applied without an underlying DC: § 4.59 is read in conjunction with, and subject to, the DC.”

Because the assigned DC in question, DC 5230, only provides for a 0% rating for “any limitation of motion,” and “does not instruct that other DCs should be considered,” the Court found that § 4.59 would not allow for a compensable rating for a condition rated under this DC. The Court found that the specific language of DC 5230 “trumps the general intent in § 4.59 to compensate painful motion with at least the minimum compensable rating,” and held that “[b]ecause no impairment of motion warrants a compensable rating under DC 5230,” Mr. Sowers was not entitled to a compensable rating under this DC, even when DC 5230 is read in conjunction with § 4.59.

The Court rejected Mr. Sowers’ argument based on DC 5227, which provides a compensable rating based on ankylosis that approximates amputation, stating that “a claimant may not shop around among DCs to find a better deal.” The Court noted that such a proposal would lead to “absurd results” by creating a “de facto 10% disability rating for painful motion.” The Court thus held that “[s]ection 4.59 may intent to compensate painful motion, but it does not guarantee a compensable rating,” Instead, this regulation “employs conditional language that must be read in conjunction with the appropriate DC to be understood.”

The Court remanded the issue of extraschedular consideration to allow the Board to consider the “‘collective impact of all [his] disabilities’” (citing Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014)), which Mr. Sowers raised for the first time during his appeal to the Court.