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.