Even with Pain, Still No Gain

While loss of range of motion based on pain may amount to increased compensation for VA disability benefits in some instances (see Deluca v. Brown), recently, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court of Appeals for Veterans Claims reaffirmed its position painful motion alone does not merit an increase in disability benefits ratings.

During inactive duty for training, the appellant in Mitchell felt something pop, her knee buckled and she went down to the ground in pain. A medical examination indicated she had a torn ACL and torn anterior aspect of the lateral meniscus. A January 2006 compensation and pension examination recorded appellant’s complaints of intense pain when standing and walking.

The Board confirmed a 10 percent evaluation based on appellant’s knee arthritis under diagnostic code 5003. See also Deluca v. Brown, 8 Vet. App. 202 (1995); however, the Board did not grant any additional compensation for pain as a “functional loss” of use due to pain.

The Mitchell Court cited 38 C.F.R. § 4.40, which defines functional loss and includes functional loss may be “due to pain.” The Court indicated, however, that “although pain may cause a functional loss, pain itself does not constitute functional loss.”Mitchell, 25 Vet. App. at 37. Muscle or bone deformity, or insufficient nerve supply and atrophy are examples of conditions that constitute functional loss; whereas, a muscle, bone or joint prevented from carrying out its normal working movements because of pain constitutes functional loss. See Deluca, 8 Vet. App. at 205-06. Pain alone is not functional loss.

The Mitchell Court further stated that painful motion alone is not limited motion. The Court stated that a noncompensable disability under DCs 5260 and 5261 (musculoskeletal disabilities based on range of motion) is a prerequisite for compensation under the second or third parts of DC 5003. “Only when arthritic pain does not cause limitation of motion, or causes a limitation of motion that does not rise to a compensable level, will a 10 percent rating under DC 5003 be appropriate.”Mitchell, 25 Vet. App. at 39.

Note the appellant did not argue that she sustained functional loss from her knee pain based upon anything other than the effect of pain on her knee’s range of motion, i.e., excursion. Mitchell, 25 Vet. App. at 38. Therefore, because pain alone is not functional loss and painful motion alone is not limited motion, the Court denied appellant’s argument for an increased evaluation. (In fact, the Court has long-held pain alone is not a disability for purposes of VA disability compensation.)