Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. Mar. 8, 2016)

HELD: Section 4.40 does not provide for a rating separate from 38 C.F.R. § 4.71a.

SUMMARY: Section 4.40 “speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss,” but does not explicitly provide a rating for any disability. Instead, “§ 4.40 must be viewed in light of the explicitly listed disability ratings for the musculoskeletal system in § 4.71a.” The guidance provided in § 4.40 “is intended to be used in understanding the nature of a veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”

In this case, the veteran was rated 20% for his back condition and appealed for a higher rating. The Board determined that he was not entitled to a higher rating because his pain did not limit his flexion to 30 degrees or less, which is what is required for the higher rating. The Veterans Court agreed, noting that the Board had conceded that Mr. Thompson had additional functional loss due to pain – but that functional loss still did not restrict his motion to 30 degrees or less, such as to warrant a higher rating. 

The Federal Circuit affirmed the CAVC’s decision, stating that 38 C.F.R. § 4.40 “makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.” Nevertheless, the Court maintained that “an applicant for disability benefits is rated based on the criteria set forth in § 4.71a.”