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The Decision in DeLuca v. Brown

The U.S. Court of Appeals for Veterans Claims (Court) in DeLuca v. Brown, 8 Vet. App. 202 (1995), held diagnostic code (DC) 5201 does not subsume 38 C.F.R. § 4.40, and 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on increased limitation of motion due to pain or flare-ups. The Court further stated the plain language of 38 C.F.R. § 4.45 indicates “weakened movement”, “excess fatigability”, and “incoordination” and are not only applicable to muscle and nerve conditions. As a result, the Court remanded the Board of Veterans’ Appeals decision to provide appellant with a new medical examination in compliance with §§ 4.40 and 4.45. The Court gave additional instruction regarding application of Schafrath v. Derwinski and the Board’s inadequate reasons and bases.

Appellant in DeLuca sought an increased evaluation for his left-shoulder disability. The Board cited 38 C.F.R. § 4.14 (avoidance of “pyramiding” or evaluation of the same disability under various diagnoses) and argued because VA had considered DC 5201, which provides a compensable rating for limited motion of a major joint, the factors of pain and functional loss provided in 38 C.F.R. § 4.40 are considered within DC 5201 and considering them again in § 4.40 would amount to pyramiding. The Court disagreed.

The Court stated range of motion can be affected by pain, and a limitation of motion due to pain might indeed be reflected in a rating under DC 5201; however, § 4.40 includes more specific criteria that the VA examiner must consider in its examination. These criteria include disability due to lack of normal endurance, functional loss due to pain and recognition of veteran as seriously disabled when the body part in question becomes painful on use. It is clear that the Board’s consideration of range of motion did not go far enough.

Even if the analysis were limited to DC 5201, the Court indicated VA fell short in providing adequate reasons and bases for its decision. The Board found veteran’s testimony credible that he missed two to three days of work during the winter months due to the effect cold weather had on his shoulder, but the Board did not consider this evidence under DC 5201 or § 4.40. The Court remanded the case to the Board with instruction to provide another examination and consider the factors listed in § 4.40.

The Board argued 38 C.F.R. § 4.45 (which contemplates weakened movement, excess fatigability, and incoordination) was not applicable in the instant case because weakened movement and excess fatigability are associated with muscle injury and incoordination is associated with nerve conditions, but veteran’s left-shoulder condition does not consist of a muscle or nerve condition. The Court disagreed.

The Court stated the Board relied on a doctor’s report that no significant atrophy of the left-shoulder girdle was found, and a 1990 VA medical report, which described no weakness of movement or excess fatigability of the left shoulder girdle musculature. “However,” the Court stated, “the 1990 VA medical report did not specify that there was no weakness of movement or excess fatigability of the left shoulder girdle musculature; it did not address these issues.” The Court seems to be stating the Board went too far in its analysis of the 1990 VA medical report. The fact that the report did not address weakness of movement or excess fatigability of the left shoulder girdle musculature seems to suggest the Board was treating the absence of these issues as evidence against the veteran’s claim, which is error.

The Court further stated § 4.45 is not limited to muscle and nerve conditions. The Court points out the title of the regulation is “The Joints” and later states the tendons and other anatomical considerations are contemplated by the regulation; therefore, the Board was incorrect in limiting the regulation to nerves and muscles. As a result the Court directed the Board to correctly consider § 4.45, according to the plain language of the regulation.

Berry Law

The attorneys at Berry Law Firm are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

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