[00:00:47] Speaker 04: Okay, the next case is number 2015-7017, Wade G. Thompson against the Secretary of Veterans Affairs, Mr. Barney. [00:00:57] Speaker 05: May it please the Court, James Barney on behalf of the Appellant Mr. Thompson. [00:01:01] Speaker 05: Mr. Thompson served in the United States Marine Corps. [00:01:03] Speaker 05: During service he suffered a spinal injury that resulted in constant pain throughout the entire motion of his spine. [00:01:10] Speaker 05: At issue here is his request for an increased rating under 38 CFR 4.40 [00:01:15] Speaker 05: for additional functional loss due to pain. [00:01:18] Speaker 05: The Veterans Court conceded that Section 4.40 must be considered in determining the proper rating for Mr. Thompson's spinal injury. [00:01:26] Speaker 05: And the Court conceded that Mr. Thompson did in fact suffer functional loss due to pain. [00:01:31] Speaker 05: But because his pain was not severe enough to limit his forward flexion to 30 degrees or less, which is the threshold for the next higher rating in the general schedule, [00:01:41] Speaker 05: the court held that he was not entitled to that higher rating. [00:01:44] Speaker 02: Could you address the question I have, and that's whether section 4.40 is a stand-alone basis for a rating. [00:01:53] Speaker 05: Whether it's a what? [00:01:54] Speaker 02: A stand-alone basis for a rating. [00:02:01] Speaker 05: No, it must be considered in conjunction with the general rating schedule. [00:02:06] Speaker 05: Now if your question is whether pain alone can be a basis for a rating, although the government disagrees, we argue that yes, it can be a basis for a rating provided that you meet the requirements of Section 4.40, which is that you have a report of pain that is corroborated with adequate pathology and that is corroborated by visible evidence of pain. [00:02:29] Speaker 05: If you meet those three requirements, then the pain can justify a rating. [00:02:34] Speaker 03: Well, that's your position. [00:02:36] Speaker 03: But the question, which is a very good one, is what is the relationship between 440 and the rest of the regs that set up the usual routine for giving disability percentages? [00:02:56] Speaker 05: The general rating schedule is based on an attempt to address the overall concept of functional loss. [00:03:04] Speaker 05: It mainly focuses on limitation of motion for the musculoskeletal system. [00:03:10] Speaker 05: But 4.4, 4.40 was put in place because the VA recognized that limitation of motion is not the only basis for functional loss. [00:03:20] Speaker 05: And so, in cases where pain is not considered as part of the general rating schedule, which is the situation for most of these musculoskeletal diseases, the VA is required to additionally consider section 4.40 to see whether there's any additional bases for functional loss, such as pain, lack of endurance, lack of coordination, lack of speed. [00:03:44] Speaker 05: And that's the situation we have here. [00:03:47] Speaker 05: Mr. Thompson requested additional rating for functional loss. [00:03:50] Speaker 05: The court conceded that he did have, in fact, additional functional loss due to pain, but essentially created a litmus test that left his functional loss due to pain resulted in one of the thresholds for limitation of motion in the general schedule. [00:04:07] Speaker 05: He wasn't going to be entitled to a higher rating. [00:04:09] Speaker 05: That's a misinterpretation of the statute. [00:04:12] Speaker 05: Section 4.4.0 does not require that functional limitation due to pain results in any limitation of motion. [00:04:22] Speaker 05: It says that functional loss, quote, may be due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. [00:04:31] Speaker 05: So the very definition of functional loss due to pain requires that the veteran be able to undertake the motion to demonstrate the pain. [00:04:39] Speaker 05: The VA's interpretation is the opposite. [00:04:41] Speaker 05: They say that the pain has to be such that the veteran cannot undertake the motion. [00:04:45] Speaker 05: The regulation also states that a body part that becomes painful, quote, on use must be considered seriously disabled. [00:04:53] Speaker 05: The phrase on use clearly means pain during use, not pain that prevents use, which is what the VA would argue. [00:05:00] Speaker 05: The regulation also says that weakness, which is another one of the bases for functional loss, is, quote, as important as limitation of motion, which again makes clear that limitation of motion is not the sole criterion upon which disability ratings should be based. [00:05:15] Speaker 05: The VA's interpretation of section 4.40 would essentially rewrite that section to mean that pain and weakness and the other elements of functional loss are only important to the extent they limit the range of most into one of the thresholds [00:05:29] Speaker 05: amounts in the general schedule. [00:05:32] Speaker 05: In fact, the VA's interpretation would render Section 4.40 redundant with a general schedule. [00:05:37] Speaker 05: According to the Veterans Court, the only time a functional loss due to pain could warrant an increased rating is if it actually limited the veteran's range of motion to one of those threshold levels in the general schedule. [00:05:51] Speaker 05: But of course, in that case, the veteran would already be entitled to that higher rating based on the [00:05:57] Speaker 05: range of motion analysis alone. [00:05:59] Speaker 05: There would never be a need to evaluate pain as part of a ratings decision, which is contrary to section 4.40. [00:06:06] Speaker 05: As an example, if a veteran went in for a medical examination and complained of excruciating pain while bending forward, under the VA's interpretation, the physician could simply ignore it and say pain is not relevant. [00:06:17] Speaker 05: All that matters is the objective limit of your motion. [00:06:20] Speaker 05: Whether that limit is caused by pain or by a muscular problem or by a skeletal problem or because of nerve damage, [00:06:27] Speaker 05: It's irrelevant under the VA's interpretation. [00:06:29] Speaker 05: All that matters is that objective limit, which is going to control the rating. [00:06:33] Speaker 05: That's not what 4.40 says. [00:06:35] Speaker 05: That, in fact, would render Section 4.40 redundant. [00:06:39] Speaker 05: Of course, this court and the Supreme Court have said that regulations and statutes should be construed as possible to avoid redundancy. [00:06:49] Speaker 05: Certainly, a veteran's regulation [00:06:51] Speaker 05: should not be interpreted in a way that makes it impossible for any veteran to actually take advantage of the very benefit that the regulation was intended to confer. [00:07:01] Speaker 05: Here, any reasonable interpretation of Section 4.40 makes clear that for the musculoskeletal diseases, that a rating should not be based solely on range of motion. [00:07:13] Speaker 05: It must also take into consideration [00:07:15] Speaker 05: the other types of functional loss set out in section 4.40, such as weakness, lack of endurance, lack of coordination, and painful motion. [00:07:25] Speaker 05: In essence, the VA's interpretation would eviscerate that entire pro-veteran friendly regulation by creating this litmus test whereby all claims of functional loss would have to go through the wicket of limitation of motion. [00:07:41] Speaker 05: Now the VA has raised three arguments in support of the decision below, and I'd like to briefly address each of those. [00:07:47] Speaker 05: First, the VA argues that the diagnostic codes for spinal injuries, which are applicable to Mr. Thompson here, already take pain into consideration because in the preamble of those diagnostic codes is the phrase, quote, with or without symptoms such as pain. [00:08:01] Speaker 05: Now, it's worth noting that the VA never raised that argument below, and I believe that was for good reason. [00:08:06] Speaker 05: Namely, the Veterans Court has already considered and rejected that specific argument in the Ballard v. Shinseki case, which we cited in our gray brief. [00:08:14] Speaker 05: In Ballard, the Veterans Court held that Section 4.40 and the functional loss due to pain provisions must be considered in conjunction with ratings on spinal injuries, just like every other type of musculoskeletal injury. [00:08:31] Speaker 05: In fact, the court and ballot in a footnote, as we cited in our great brief, even pointed to multiple occasions where the Secretary for Veterans Affairs has conceded that very point in several litigations. [00:08:44] Speaker 05: The fact is the phrase, with or without pain, or with or without symptoms such as pain, means that pain is not a consideration in those ratings decisions. [00:08:54] Speaker 05: For instance, two veterans who have the same limited motion [00:08:58] Speaker 05: but very different pain profiles are going to receive the same rating under the general schedule. [00:09:03] Speaker 05: One could have excruciating pain during his range of motion. [00:09:06] Speaker 05: The other could have no pain at all. [00:09:08] Speaker 05: Under the rating schedule and the diagnostic codes for spinal injuries, they will both be rated the same because pain literally is not a consideration in that rating schedule. [00:09:17] Speaker 05: That's why the Veterans Court has consistently held [00:09:20] Speaker 05: that section 4.40 and the functional loss due to pain provision must be considered in conjunction with spinal injuries just the same as other musculoskeletal injuries. [00:09:33] Speaker 05: And in fact, in this very case, both the board and the Veterans Board did consider Section 4.40 in conjunction with the grading decision of Mr. Thomas. [00:09:42] Speaker 02: When you look at Section 4.40, it instructs examiners to evaluate diagnostic codes in light of pain, weakness, or any of the factors that might create a functional loss. [00:09:54] Speaker 02: So, doesn't that mean there's got to be a functional loss of some kind? [00:09:59] Speaker 02: It seems to me your argument is there doesn't have to be any type of loss in range of motion if pain is enough. [00:10:08] Speaker 02: I mean, there can be 100% range of motion, but if in the exercise of that range there's pain, it seems to me you're saying that's entitlement to a rating. [00:10:20] Speaker 05: I think Section 4.40 makes that clear, that there are other types of functional loss other than range of motion. [00:10:25] Speaker 02: That's only one. [00:10:26] Speaker 02: So you are depending entirely on 4.40. [00:10:30] Speaker 02: Your argument rests entirely on 4.40. [00:10:34] Speaker 05: For the request for the increased rating, yes. [00:10:37] Speaker 05: My only point was when you asked me earlier, as the VA addresses injuries, it does consider both the general schedule and Section 4.40. [00:10:46] Speaker 05: The general schedule can give you a rating based on limitation of motion, which is what happened here. [00:10:52] Speaker 05: He has a 20% rating based on his 110 degree combined range of motion. [00:10:57] Speaker 05: But then you have to consult 4.40. [00:10:58] Speaker 05: And 4.40, and maybe I didn't address your question correctly before, but 4.40 is a standalone basis for increasing that rating based on other types of functional loss. [00:11:10] Speaker 05: Range of motion is only one type of functional loss. [00:11:13] Speaker 05: 4.40 laid out other types of functional loss such as weakness, pain on motion, lack of coordination, and lack of normal speed. [00:11:20] Speaker 03: any wonder answer than you gave the first time, from your viewpoint. [00:11:26] Speaker 02: And it's a different answer. [00:11:28] Speaker 02: I mean, this is what I was asking, and I think you're given a different answer right now. [00:11:35] Speaker 02: If it wasn't for 4.40, you wouldn't have a case. [00:11:39] Speaker 02: We wouldn't be here, correct? [00:11:40] Speaker 02: That's correct. [00:11:41] Speaker 02: And we're hearing you're saying that this particular regulation permits a disability [00:11:48] Speaker 02: Just on the basis of pain, there doesn't have to be a functional loss of any kind. [00:11:53] Speaker 05: The pain is the functional loss. [00:11:57] Speaker 02: Section 4.4, it lasts in terms of range of motion. [00:12:00] Speaker 05: No, no. [00:12:01] Speaker 05: Functional loss doesn't have to include range of motion. [00:12:03] Speaker 05: That's the whole point of section 4.40. [00:12:05] Speaker 05: The last sentence says, a part that becomes painful on use must be considered seriously disabled. [00:12:13] Speaker 05: That means you can have functional loss due to pain without any limitation of motion. [00:12:18] Speaker 05: It's because the pain itself causes a functional loss. [00:12:21] Speaker 02: In fact, the evidence in this case... When you say the pain itself causes functional loss, [00:12:26] Speaker 02: then you're going back and you rely on some type of limit and range of motion. [00:12:33] Speaker 02: What do you describe as functional loss? [00:12:35] Speaker 05: I'll give you an example. [00:12:37] Speaker 05: In section, excuse me, page A, 856 of the Joint Appendix, this is the 2008 evaluation that the Veterans Court primarily relied on in its decision. [00:12:49] Speaker 05: where he was diagnosed with his degenerative joint disease. [00:12:52] Speaker 05: And not only was he diagnosed with his degenerative joint disease, he was assessed as having pain. [00:12:58] Speaker 05: And then there's a list of all of the things that that affects in his daily life. [00:13:02] Speaker 05: scores has severe shopping severe exercise severe sports prevents traveling severe feeding mild bathing severe dressing severe toileting severe grooming severe and even goes on to say that his wife will have to help him with bathing and dressing occasionally. [00:13:19] Speaker 05: These are functional effects not due solely to range of motion. [00:13:23] Speaker 05: His range of motion was [00:13:25] Speaker 05: was only 60 degrees. [00:13:28] Speaker 05: Primarily these severe effects are caused by his pain and that's the whole point of section 4.40. [00:13:33] Speaker 05: The Veterans Court never even looked at that evidence because the Veterans Court created an artificial wicket where it said we're only going to look at range of motion but that's only one of five different [00:13:45] Speaker 05: types of functional loss that are spelled out in section 4.40. [00:13:48] Speaker 05: That's where the error here is. [00:13:50] Speaker 05: The court erroneously limited section 4.40 to just one type of functional loss, and that was the range of motion loss. [00:13:58] Speaker 05: There's four other types there, and we believe the evidence supports Mr. [00:14:03] Speaker 05: Thompson's request for increased rating. [00:14:06] Speaker 05: In fact, one of the arguments that the VA has made here is that the court should follow the so-called Fenderson standard. [00:14:15] Speaker 05: Fenderson was a decision from the lower court. [00:14:18] Speaker 05: But even in Fenderson, there was no evidence of any loss of the range of motion. [00:14:23] Speaker 05: The only evidence was that Fenderson had foot pain. [00:14:26] Speaker 05: and the foot pain prevented him from engaging in certain daily activities, such as playing sports and standing in place for a prolonged period of time. [00:14:34] Speaker 05: Here we have that same sort of evidence. [00:14:36] Speaker 05: Fendersen didn't depend or didn't show any loss of range of motion, and yet that was still considered to be a functional loss due to pain. [00:14:45] Speaker 05: I would like to reserve the remainder of my time. [00:14:48] Speaker 04: Okay. [00:14:50] Speaker 04: Thank you, Mr. Shibani. [00:14:56] Speaker 04: Mr. Grimaldi. [00:15:02] Speaker 00: Good afternoon, Your Honors. [00:15:04] Speaker 00: May it please the Court? [00:15:07] Speaker 00: Based upon the refibering of Mr. Thompson, the argument we've heard today, we do believe that Mr. Thompson is creating a more narrow restrictive definition, excuse me, holding from the Veterans Court that the Veterans Court simply did not make. [00:15:23] Speaker 00: Basically, Mr. Thompson is arguing that the Veterans Court created a rigid, unforgiving test that's impossible for veterans to benefit. [00:15:30] Speaker 00: This is not the holding of the Veterans Court. [00:15:32] Speaker 00: The holding of the Veterans Court is much more narrow than this. [00:15:36] Speaker 00: And all we have to do is look at page 13 of the Joint Appendix to see this holding. [00:15:44] Speaker 00: Specifically, the Court says, [00:15:46] Speaker 00: The court's finding here is simply that the board did not err in finding that conceded additional functional loss due to pain is not compensable above and beyond the disability rating already assigned. [00:16:00] Speaker 00: And that's again, JA 13. [00:16:03] Speaker 03: But the key to that language is additional functional loss. [00:16:09] Speaker 03: Absolutely, Your Honor. [00:16:10] Speaker 03: All right. [00:16:10] Speaker 03: I look at 4.04, 4.40, sorry. [00:16:17] Speaker 03: And the penultimate sentence in that regulation, look at it with me and see if you can explain it better. [00:16:27] Speaker 03: Weakness is as important as limitation of motion, i.e. [00:16:35] Speaker 03: functional loss. [00:16:37] Speaker 03: And a part which becomes painful on use, no functional loss mentioned, [00:16:43] Speaker 03: And a part which becomes painful on use must be regarded as seriously disabled." [00:16:49] Speaker 03: What are they saying in that sentence? [00:16:51] Speaker 00: Well, first off, Your Honor, we do believe the discussion of weakness by Mr. Thompson is a red herring. [00:16:57] Speaker 00: His only argument before the Veterans Court... I'm not worried about his argument. [00:17:01] Speaker 03: I'm asking you, explain to me what that sentence is. [00:17:04] Speaker 00: Sure. [00:17:04] Speaker 00: That sentence, it could be more artfully worried, Your Honor. [00:17:07] Speaker 00: Absolutely. [00:17:08] Speaker 00: But that sentence is recognizing right there that weakness is a type of functional loss. [00:17:12] Speaker 00: An individual can receive compensation... What do you mean it could be more artfully [00:17:17] Speaker 02: Well, there's a comma right there. [00:17:19] Speaker 02: We're looking at section 4440. [00:17:21] Speaker 02: Excuse me? [00:17:21] Speaker 02: We're looking at the language itself. [00:17:24] Speaker 00: Yes, Your Honor. [00:17:25] Speaker 00: And there is a comma there. [00:17:26] Speaker 02: It's two different ideas, we believe, there. [00:17:29] Speaker 02: Maybe two different sentences. [00:17:31] Speaker 02: Are you saying it could have been drafted differently to suit your argument? [00:17:36] Speaker 00: No, Your Honor. [00:17:37] Speaker 00: Absolutely not. [00:17:39] Speaker 03: You're dealing with the language that's there. [00:17:41] Speaker 03: Don't call it different language. [00:17:43] Speaker 00: I'm not going to rewrite this sentence at all, Your Honor. [00:17:45] Speaker 03: Dealing with the language. [00:17:47] Speaker 00: A weakness is as important as limitation of motion. [00:17:52] Speaker 00: Right there, that is saying that weakness could be a type of functional loss. [00:17:58] Speaker 02: Is it saying also that its weakness could be distinct from loss of motion? [00:18:03] Speaker 00: weakness could cause loss of motion. [00:18:07] Speaker 02: No, doesn't that mean that weakness is an element that's distinct from loss of motion? [00:18:12] Speaker 00: From actual loss of motion, yes. [00:18:14] Speaker 00: Okay. [00:18:14] Speaker 00: And the reason why, and I can provide an example. [00:18:16] Speaker 03: You agree with that proposition. [00:18:18] Speaker 00: Correct. [00:18:18] Speaker 03: Weakness is distinct from loss of motion. [00:18:21] Speaker 00: Weakness can cause loss of motion, though, but it's distinct from actual physical inability to move. [00:18:26] Speaker 00: Yes. [00:18:27] Speaker 03: That's not the question. [00:18:27] Speaker 03: The question is, for analytical purposes, that's what we're engaged in as an appellate court. [00:18:35] Speaker 03: Is weakness distinctive from loss of motion? [00:18:39] Speaker 00: Your Honor, the problem I'm having with your statement is loss of motion. [00:18:43] Speaker 00: I'm talking about actual loss of motion, the inability to move. [00:18:45] Speaker 00: If that's the question you're asking, then the answer is yes. [00:18:48] Speaker 00: Weakness is distinct from actual loss of motion. [00:18:51] Speaker 02: Is weakness distinct from 20% loss of motion? [00:18:55] Speaker 00: If that's actual loss in 20%, yes. [00:18:58] Speaker 02: And the reason why here... If you have weakness that is brought on by pain, is that distinct from loss of motion? [00:19:08] Speaker 02: Can that be distinct from loss of motion? [00:19:12] Speaker 00: Well, if weakness brought on by pain, Your Honor, yes. [00:19:15] Speaker 00: If the individual is still moving, yes. [00:19:18] Speaker 00: Absolutely. [00:19:19] Speaker 00: And Your Honor, let me explain to you what the purpose of 440 serves here. [00:19:23] Speaker 00: Because we do have the diagnostic codes in 471A. [00:19:26] Speaker 00: And for the purposes of Mr. Thompson, not all injuries in the musculoskeletal system, just Mr. Thompson's spine injury, it is the diagnostic coding does have ratings based upon limitation of motion. [00:19:39] Speaker 00: What happened to Mr. Thompson is he came in to be tested. [00:19:42] Speaker 00: And he did the forward flexion test, which is simply bending forward at the waist [00:19:47] Speaker 00: and he was only able to reach 65 degrees. [00:19:49] Speaker 00: 90 degrees would be a full range of motion. [00:19:53] Speaker 00: That entitles him to a 10% disability. [00:19:56] Speaker 00: However, the examiner requests that Mr. Thompson continue and do repetitive motions. [00:20:02] Speaker 00: On a further attempt, Mr. Thompson was only able to get to 50%, which is worse, and would entitle him to a 20% disability rating. [00:20:10] Speaker 00: Under a strict interpretation of 471A, which says that one receives a rating with or without pain, Mr. Thompson should have walked away with a 10% rating that day because he was able to reach 65%. [00:20:24] Speaker 00: However, he was rated 20%. [00:20:26] Speaker 00: That is the conceded additional functional loss. [00:20:30] Speaker 00: Mr. Thompson could reach 65 degrees. [00:20:33] Speaker 00: But that's under 471A. [00:20:35] Speaker 00: It is not under 471A. [00:20:36] Speaker 00: Under 471A, an individual could only get the 65 degree rating because it says with or without pain, Your Honor. [00:20:43] Speaker 00: And this is something that is explicitly in the regulation that it's saying that one must do this test regardless of pain. [00:20:51] Speaker 03: If he could go to 90, [00:20:54] Speaker 03: and be in excruciating pain, then what? [00:20:57] Speaker 00: If he could go to 90 and do an excruciating pain, if that pain prevents him from using his back, from functionally moving, if he says, I can do this motion examiner, but it's going to hurt me and I'm not going to do it, that could be considered functional loss. [00:21:11] Speaker 00: That's when 440 kicks in. [00:21:13] Speaker 00: Isn't that what was going on here? [00:21:15] Speaker 00: Exactly, Your Honor. [00:21:16] Speaker 00: 440 did help Mr. Thompson already. [00:21:19] Speaker 00: That's what the board, circling back to my original statement here, this is what the holding of the Veterans Court was. [00:21:25] Speaker 00: Simply that, the board did not error in finding that the conceded additional functional loss, which is the change from 65 degrees to 50 degrees, [00:21:35] Speaker 00: did not require additional rating. [00:21:38] Speaker 00: And the reason why, Your Honor, is that change, that from 65 to 50, would have entitled him to a 20% disability rating, which is what he received for 2008 to 2011, the time period that we're discussing today. [00:21:52] Speaker 00: So this is something that Mr. Thompson is skipping over in his briefing. [00:21:55] Speaker 00: He has received disability rating based upon functional loss of his spine. [00:22:04] Speaker 02: So, would you agree with Mr. Russell's interpretation of 4.40? [00:22:11] Speaker 02: But you're saying that, okay, I agree with that, but the VA took care of it. [00:22:18] Speaker 00: Yes, Your Honor, I do agree that 4.40 applies into Mr. Thompson. [00:22:23] Speaker 00: Our concern with Mr. Thompson's briefing and his argument today is that pain itself constitutes functional loss. [00:22:30] Speaker 00: for 471A in this situation. [00:22:32] Speaker 00: However, the rating system is very clear for Mr. Thompson's spine injury. [00:22:36] Speaker 00: It must limit range of motion, whether that's functionally or actually, as we discussed earlier on it. [00:22:42] Speaker 00: We can take a look at a Fenderson case. [00:22:44] Speaker 00: And by the way, we do not advocate a different standard coming from Fenderson. [00:22:47] Speaker 00: We just believe that Fenderson is a good example of how 440 plus 471A. [00:22:52] Speaker 02: What do you see the difference between an actual loss of motion versus a functional loss of motion? [00:22:58] Speaker 00: Sure. [00:22:58] Speaker 00: Actual loss of motion, we can look at Mr. Fenderson. [00:23:01] Speaker 02: Mr. Fenderson had... First would you agree that actual loss falls under the diagnostic codes, functional loss falls under 4.40? [00:23:08] Speaker 02: Correct. [00:23:10] Speaker 00: Yes, absolutely. [00:23:11] Speaker 00: So if we look at Mr. Fenderson, we can look at Mr. Fenderson and then we can look at Mr. Thompson under this example, Your Honor. [00:23:16] Speaker 00: Mr. Fenderson had plantar fasciitis, which is an injury on the bottom of the foot. [00:23:21] Speaker 00: Now, he could walk, he could run, he could play basketball. [00:23:25] Speaker 00: However, the problem, as the Veterans Court pointed out, was that he was limited in the time that he could do that. [00:23:31] Speaker 00: 10 minutes, 15 minutes, and then the pain would become too much. [00:23:35] Speaker 00: Now, at that point, is Mr. Feddersen actually limited from walking, running, playing basketball? [00:23:42] Speaker 00: No. [00:23:43] Speaker 00: Does he have a potential functional loss? [00:23:45] Speaker 00: Potentially, yes. [00:23:46] Speaker 00: That's why the Veterans Court remanded him in that situation. [00:23:49] Speaker 00: Mr. Thompson, [00:23:51] Speaker 00: Did he have actual physical movement loss? [00:23:54] Speaker 00: Yes. [00:23:54] Speaker 00: He could only reach 65 degrees when he bent forward. [00:23:59] Speaker 00: Did he also have functional loss? [00:24:00] Speaker 00: Yes. [00:24:01] Speaker 00: After repeated tries, he could only reach 50 degrees. [00:24:04] Speaker 00: That's a 15 degree difference. [00:24:06] Speaker 00: Because of the pain? [00:24:08] Speaker 00: Presumably because of the pain, yes. [00:24:10] Speaker 00: Whether it's pain, weakness, or some other type causing a functional loss, it doesn't really matter if he did have functional loss. [00:24:17] Speaker 00: What did that entitle him to? [00:24:19] Speaker 00: An additional 20% under his diagnostic code. [00:24:23] Speaker 00: So in that situation, [00:24:25] Speaker 00: Both Mr. Thompson had conceded functional loss and Mr. Fenderson was remanded to determine whether that functional loss would go in there, Your Honor. [00:24:41] Speaker 00: Mr. Thompson argues that the Boris interpretation of 40-40 would eviscerate it and no one would receive any benefits under it. [00:24:47] Speaker 00: Well, Mr. Thompson, as I've explained today, did receive benefits under 440. [00:24:51] Speaker 00: Moreover, the Veterans Court does not interpret 440 [00:24:55] Speaker 00: to have a strict [00:24:58] Speaker 00: loss emotion requirement. [00:25:00] Speaker 00: First off, it's only looking at 440 in the context of these specific diagnostic codes in 471A that discuss limitation of range. [00:25:10] Speaker 00: We cite the DeLuca case, Mr. Thompson cites the DeLuca case. [00:25:14] Speaker 00: That case shows that when you're looking at 440 and determining what functional loss there is, one should express it in the rating system for that particular diagnostic code. [00:25:28] Speaker 04: that the VA intended to say that if a veteran is in constant excruciating pain, directly traceable to the service, that don't bother us. [00:25:42] Speaker 04: And is your view that the reason that it's written the way it is is as a way of measuring the amount of compensation for pain? [00:25:52] Speaker 04: Let's say that the veteran can function and is in constant pain. [00:25:57] Speaker 04: I don't think the intention has to be that, you know, go away until you can't lift your head anymore. [00:26:06] Speaker 00: But no, you know, the musculoskeletal system, Your Honor, is a large group of diagnostic codes. [00:26:12] Speaker 00: So, for instance, looking at Mr. Fendersen's code, where there is no actual limitation of motion requirements, in that situation, Mr. Fendersen's, if you have excruciating foot pain, certainly 440 could come apply in there. [00:26:27] Speaker 00: and change the rating. [00:26:29] Speaker 00: The diagnostic codes we have before us today, and it's a very limited question before the court, discusses ratings in terms of limitation on motion. [00:26:38] Speaker 00: So the functional loss has to affect motion when we're talking about the spine. [00:26:43] Speaker 00: Now, if a veteran out of luck, when they're out of pain, but they tough through it and move anyway, in your example, Your Honor, because certainly... Not out of pain, but in pain. [00:26:52] Speaker 00: Yeah, if they're in excruciating pain and we believe that it prevents them from moving, [00:26:56] Speaker 00: under our interpretation or the Veterans Court interpretation, functional loss would occur and that veteran would get rating under the D.C. [00:27:04] Speaker 00: that issued today. [00:27:05] Speaker 00: If this veteran was under excruciating pain in the back but could move the full 90 degrees and still move that full 90 degrees, you know, it didn't actually prevent him from doing anything, is that veteran out of luck? [00:27:18] Speaker 00: No, because that veteran can seek an extra scheduler rating, which Mr. Thompson did, and it was denied and he has not appealed that. [00:27:25] Speaker 00: Perhaps it's affecting the veteran's ability to work. [00:27:28] Speaker 00: So the veteran can actually seek a rating based upon an ability to work and be unemployed, a TDIU claim, which Mr. Thompson did seek. [00:27:37] Speaker 00: And although it's not in the record, we understand that he received a TDIU starting in 2011, a period after what we're discussing today. [00:27:45] Speaker 00: So that's another possibility for an individual. [00:27:47] Speaker 00: The question of whether pain itself [00:27:50] Speaker 00: constitutes a disability is not before this court. [00:27:54] Speaker 00: That is not what Mr. Thompson's been arguing. [00:27:57] Speaker 00: Rather, he's been arguing that the Veterans Court has misinterpreted 440 as applied to these diagnostic codes. [00:28:09] Speaker 03: I see why you think 440 is inartfully written, because it doesn't say what you say it does. [00:28:18] Speaker 03: Now, what you say it does may be a perfectly sensible method for evaluating disability, [00:28:27] Speaker 03: But let me put the question specifically to the hypothetical you just gave us. [00:28:35] Speaker 03: Let's say the veteran has back injury, service-connected back injury. [00:28:40] Speaker 03: He bends over to 45 degrees and says, I can't go any further without real pain. [00:28:50] Speaker ?: Correct. [00:28:51] Speaker 03: They look at a hypothetical diagnostic code and say, okay, that entitles you to 20% or whatever, X percent. [00:29:00] Speaker 03: Then they say to him, can you go to 90 degrees? [00:29:04] Speaker 03: And he says, only with intense pain. [00:29:08] Speaker 03: Show us. [00:29:09] Speaker 03: He goes to 90 degrees, but he's in great pain. [00:29:13] Speaker 03: They actually give him a shot to reduce the pain so he can do this. [00:29:20] Speaker 03: 440 seems to say that he's entitled to that 90-degree disability because of his pain. [00:29:32] Speaker 00: Your Honor, the numbers are backwards. [00:29:35] Speaker 00: Just to be clear, when you get down to 90 degrees, that's perfect. [00:29:39] Speaker 00: You beat the test and you're fine. [00:29:41] Speaker 03: I just want to make sure that... Well, that's my point. [00:29:45] Speaker 03: He can comply as if he has full flexion. [00:29:50] Speaker 03: Correct. [00:29:51] Speaker 03: Get to 90 degrees, but only with excruciating pain. [00:29:54] Speaker 03: Correct. [00:29:55] Speaker 03: They have to give him a shot in order to reduce his pain so he can demonstrate that he still is able to get to 90 in terms of the actual function of his spine. [00:30:05] Speaker 03: Correct. [00:30:06] Speaker 03: But he says, I can only get there with such pain that I never go there. [00:30:13] Speaker 00: Right. [00:30:14] Speaker 00: I think 440 would help our individual out in this situation, Your Honor. [00:30:17] Speaker 03: And I can explain why. [00:30:18] Speaker 03: You think 440 would help them? [00:30:19] Speaker 03: Correct. [00:30:19] Speaker 00: Absolutely. [00:30:20] Speaker 00: How would it help? [00:30:21] Speaker 00: Just as it helps Mr. Thompson. [00:30:22] Speaker 00: I'll explain why and then I'll compare it to Mr. Thompson's situation. [00:30:25] Speaker 00: 471A, which is the diagnostic code for the flexion bending forward, discusses that with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease. [00:30:42] Speaker 00: And then it goes on to discuss the flexion test. [00:30:45] Speaker 00: And it's saying if you can reach a certain degree, then you get this rating, a certain degree, you get that rating. [00:30:51] Speaker 00: If the individual could move to 90 degrees under 471A, with or without pain, they're entitled to zero rating. [00:31:00] Speaker 00: They walk away without any disability rating. [00:31:03] Speaker 00: This is why 440 was written. [00:31:05] Speaker 00: What 440 gives this individual is from 45 degrees in your example to 90, that individual was in excruciating pain and he's functionally limited from making that motion. [00:31:17] Speaker 00: That's a functional loss right there under 440. [00:31:20] Speaker 00: And that individual with 45 degrees, your honor, would walk away with a 20% rate under 471A. [00:31:27] Speaker 00: But if 440 didn't exist, they would have gotten nothing. [00:31:31] Speaker 00: Now, let's talk about Mr. Thompson, and I apologize, I'm over here, so I'll just finish this example, and if you're honest, I have any further questions. [00:31:39] Speaker 00: Mr. Thompson could reach 65 degrees, okay? [00:31:44] Speaker 00: So under 471A, with or without pain, he would be entitled to only 10%. [00:31:48] Speaker 00: The examiner asked him to take the test again, and to do it again. [00:31:53] Speaker 00: After a tight of motions, he could only reach 50 degrees, which is worse. [00:31:59] Speaker 00: This is where he was rated. [00:32:01] Speaker 00: He was rated at 20%. [00:32:03] Speaker 00: Under 471A, he should have gotten 65 degrees and 10%. [00:32:08] Speaker 00: But 440 applied to give him 20% to actually rate him there. [00:32:13] Speaker 00: So that is the conceded additional functional loss. [00:32:16] Speaker 00: And that is the holding of the Veterans Court. [00:32:19] Speaker 00: But the board did not err when looking at that conceded additional functional loss and assigning Mr. Thompson, excuse me, affirming Mr. Thompson's 20%. [00:32:29] Speaker 00: disability rating, not the 10% that you would have gotten under 65. [00:32:33] Speaker 00: Thank you, Your Honor. [00:32:34] Speaker 04: Thank you, Mr. Grimaldi. [00:32:42] Speaker 03: Okay. [00:32:42] Speaker 03: Just a couple of points. [00:32:45] Speaker 03: What's wrong with his interpretation of 440? [00:32:50] Speaker 05: There's several things wrong. [00:32:51] Speaker 05: First of all, Mr. Thompson did not benefit from Section 440. [00:32:55] Speaker 05: This idea that he got the 20% rating because of his repetitive motion, there's no evidence of that. [00:33:01] Speaker 05: The 20% rating, he would have been independently eligible for that based on his combined motion of being 120 degrees or less. [00:33:09] Speaker 05: We made that point on page 7 of our blue brief. [00:33:12] Speaker 05: His 20% rating, he was already entitled to that based on his combined motion of his spine, which is a combined forward, back, left, right type of combination being less than 120 degrees. [00:33:24] Speaker 05: There's no evidence that his rating was based in any way on section 4.40. [00:33:28] Speaker 05: The problem with their interpretation of Section 4.40 is that they're still tying it to a requirement that there be some loss of motion. [00:33:38] Speaker 05: There's nothing in Section 4.40 that requires pain to also cause loss of motion. [00:33:44] Speaker 05: In fact, in Fendersham, we go back to Fendersham, there was no evidence of a loss of a range of motion. [00:33:49] Speaker 05: The only evidence was that he was functionally precluded from doing certain daily activities. [00:33:53] Speaker 05: We have the same evidence in our record. [00:33:55] Speaker 05: I went through all the different things where Mr. Thompson is severely impacted in his daily life, including things like bathing and toileting, far in excess of what the situation was in Fendersen. [00:34:05] Speaker 05: And yet, in this case, the Veterans Court didn't even look at that evidence, because the court only looked at his range of motion. [00:34:11] Speaker 05: And 4.40 is not based on range of motion alone. [00:34:14] Speaker 05: There's five different bases, one of which is painful motion. [00:34:18] Speaker 05: And that alone should entitle Mr. Thompson to the higher rating. [00:34:24] Speaker 05: The only other thing that I'd like to point out is the VA says that the holding is very narrow, and he cited to a particular sentence on page 813. [00:34:37] Speaker 05: But there's other sentences on page 813 that are not narrow at all. [00:34:41] Speaker 05: The court goes on to say about midway through the page, in other words, [00:34:46] Speaker 05: Because the additional functional loss due to pain is not severe enough to limit Mr. Thompson's forward flexion to 30 degrees or less, it does not warrant a 40% disability rating, period. [00:34:57] Speaker 05: That's the analysis, that's the sum total of the court's analysis. [00:35:00] Speaker 05: It is very clearly equating, it's basically placing a litmus test on all claims for functional loss and saying you have to meet the [00:35:08] Speaker 05: range of motion limitation in the rating schedule or you're not entitled to a higher rating period. [00:35:14] Speaker 05: That's a very broad holding and it contradicts many previous cases including DeLuca and many other cases that we saw. [00:35:22] Speaker 03: If we can reach the functional loss percentage in the rating code [00:35:29] Speaker 03: Based on the fact that he has pain that's limiting him to get there, but he can prove that that's what's limiting him, wouldn't he get 440? [00:35:46] Speaker 05: Well, he should get 440 if he can show the three things that are required, which are pain, [00:35:51] Speaker 05: adequate pathologies of corroborating the pain and visible evidence of pain. [00:35:55] Speaker 05: And none of that requires a showing of any type of limitation of motion, functional or otherwise. [00:36:00] Speaker 05: But to be clear, the court's decision here didn't have anything to do with functional limitations on motion. [00:36:06] Speaker 05: The word functional is not in there. [00:36:08] Speaker 05: It was based on his actual limitation of motion. [00:36:11] Speaker 05: And because he didn't have an actual limitation of motion that met the rating schedule, the court didn't look at the rest of this evidence, which I went through earlier today. [00:36:19] Speaker 04: Thank you. [00:36:22] Speaker 04: Thank you both. [00:36:23] Speaker 04: The case is taken under submission. [00:36:26] Speaker 04: That concludes the argued cases for this morning. [00:36:29] Speaker 01: All rise. [00:36:31] Speaker 01: The honorable court is adjourned until tomorrow morning at seven o'clock a.m.