Veteranclaims’s Blog

March 15, 2016

Thompson v. McDonald, No. 2015-7017(Decided: March 8, 2016); 38 C.F.R. § 4.40, § 4.71a;

Excerpt from decision below:

“The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (“Board”) denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court’s decision was based in part upon its interpretation of 38 C.F.R. § 4.40 in light of § 4.71a.
Thompson’s appeal raises a question of first impression: Does § 4.40 provide a basis for a rating separate from § 4.71a? The answer is no; we affirm the judgment of the Veterans Court.”

======================

 

United States Court of Appeals for the Federal Circuit
______________________
WADE THOMPSON,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7017
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-1633, Judge Lawrence B.
Hagel.
______________________
Decided: March 8, 2016
______________________
JAMES R. BARNEY, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, argued for
claimant-appellant. Also represented by CARA R.
LASSWELL, RONALD LEE SMITH.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR., ERIC PETER
BRUSKIN; DAVID J. BARRANS, MARTIE ADELMAN, Office of
2 THOMPSON v. MCDONALD
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
CHRISTY G. LEA, Knobbe, Martens, Olson & Bear,
LLP, Irvine, CA, for amicus curiae Disabled American
Veterans. Also represented by ZACHARY GLANTZ.
______________________
Before NEWMAN, PLAGER, and REYNA, Circuit Judges.
PLAGER, Circuit Judge.
This is a veterans case. Wade G. Thompson appeals a judgment of the Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (“Board”) denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court’s decision was based in part upon its interpretation of 38 C.F.R. § 4.40 in light of
§ 4.71a.
Thompson’s appeal raises a question of first impression: Does § 4.40 provide a basis for a rating separate from § 4.71a? The answer is no; we affirm the judgment of the Veterans Court.
BACKGROUND
Regulatory Framework
The Schedule for Rating Disabilities, 38 C.F.R. part 4,
is divided into two subparts: Subpart A “General Policy in
Rating” and Subpart B “Disability Ratings.” Subpart B
contains several headings, including “The Musculoskeletal
System,” “The Digestive System,” and “The Respiratory
System.” Under each such heading, there is at least
one section specifying disability ratings relevant to that
particular heading.
THOMPSON v. MCDONALD 3
Under the musculoskeletal system heading, at issue
here, there are two sections that explicitly list ratings,
38 C.F.R. §§ 4.71a (“Schedule of ratings—musculoskeletal
system”) and 4.73 (“Schedule of ratings—muscle injuries”).
In addition to these ratings sections, there are
several sections that do not explicitly list ratings but
discuss general principles concerning ratings for the
musculoskeletal system or particular parts thereof. See,
e.g., id. §§ 4.40 (“Functional loss”), 4.41 (“History of injury”),
4.42 (“Complete medical examination of injury
cases”), 4.43 (“Osteomyelitis”), 4.45 (“The joints”), 4.46
(“Accurate measurement”).
Section 4.40, entitled “Functional loss,” states:
Disability of the musculoskeletal system is primarily
the inability, due to damage or infection in
parts of the system, to perform the normal working
movements of the body with normal excursion,
strength, speed, coordination and endurance. It is
essential that the examination on which ratings
are based adequately portray the anatomical
damage, and the functional loss, with respect to
all these elements. The functional loss may be due
to absence of part, or all, of the necessary bones,
joints and muscles, or associated structures, or to
deformity, adhesions, defective innervation, or
other pathology, or it may be due to pain, supported
by adequate pathology and evidenced by the
visible behavior of the claimant undertaking the
motion. Weakness is as important as limitation of
motion, and a part which becomes painful on use
must be regarded as seriously disabled. A little
used part of the musculoskeletal system may be
expected to show evidence of disuse, either
through atrophy, the condition of the skin, absence
of normal callosity or the like.
Id. § 4.40.
4 THOMPSON v. MCDONALD
One of the two specific ratings sections, § 4.71a,
addresses the spine and dictates that a veteran is entitled
to a 20% disability rating if there is forward flexion of the
thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees, or if the combined range of
motion of the thoracolumbar spine is not greater than 120
degrees. Id. § 4.71a. A veteran is entitled to a higher,
40% rating if there is forward flexion of the thoracolumbar
spine of 30 degrees or less. Id. Section 4.71a also
allows for a 20% or 40% disability rating—along with
several other ratings—under several other circumstances
not at issue here. Id. Under § 4.71a, all of these ratings
result “[w]ith or without symptoms such as pain
(wh[e]ther or not it radiates), stiffness, or aching in the
area of the spine affected by residuals of injury or disease.”
Id.
Thompson’s Case
We detail the background of Thompson’s case only as
necessary. A more complete background is set forth in the
opinion of the Veterans Court. See Thompson v. McDonald,
No. 13-1633, 2014 WL 4239747 (Vet. App. Aug. 28,
2014). In brief, Thompson served in the United States
Marine Corps from May 1992 to November 1993. He
sustained a back injury while on active duty and was
honorably discharged for medical reasons in 1993.
On March 28, 2008, the Department of Veterans Affairs
(“VA”) received Thompson’s claim for disability
benefits for low-back disability. As a result of a series of
VA Regional Office (“RO”) decisions, Thompson was
assigned a 20% rating for service connected degenerative
disc disease of the lumbar spine, applicable for the period
from June 1, 2008 to March 8, 2011.
Thompson disagreed with the 20% rating, and appealed
to the Board. The Board denied Thompson entitlement
to a rating in excess of 20%. As a factual finding,
the Board determined: “Prior to March 8, 2011, the VeterTHOMPSON
v. MCDONALD 5
an’s service connected degenerative disc disease of the
lumbar spine did not cause forward flexion of the thoracolumbar
spine of 30 degrees or less . . . .” J.A. 23. The
Board stated that “forward flexion of the thoracolumbar
spine was not 30 degrees or less, even considering limitation
caused by pain, fatigue, and other factors.” J.A. 33.
The Board observed that, upon examination, Thompson
had forward flexion of the lumbar spine from 0 to 65
degrees, with pain throughout the range of motion, and
that, after repeated testing, forward flexion was only from
0 to 50 degrees.
The Board reasoned that, under Mitchell v. Shinseki,
25 Vet. App. 32 (2011), pain, by itself, does not constitute
a functional loss entitling a veteran to a higher rating
“under VA regulations that evaluate disability based upon
range-of-motion loss in the musculoskeletal system.” J.A.
33. The Board quoted the statement in Mitchell that
“‘pain must affect some aspect of the normal working
movements of the body such as excursion, strength, speed
coordination, and endurance in order to constitute functional
loss.’” J.A. 33–34 (quoting Mitchell, 25 Vet. App. at
43). The Board concluded that Thompson’s pain failed to
cause “sufficient functional impairment to limit the
flexion of the thoracolumbar spine to 30 degrees or less,
as is required for a higher rating under the General
Rating Formula for Diseases and Injuries of the Spine.”
J.A. 34.
As a legal conclusion, the Board determined that:
“The criteria for an initial disability rating in excess of 20
percent for service connected degenerative disc disease of
the lumbar spine prior to March 8, 2011 have not been
met.” J.A. 23. In support of that conclusion, the Board
cited 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1,
4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a; and Diagnostic Codes
5003, 5010, 5235–5243. As the Board viewed it, the
discussion of functional loss under § 4.40 did not super6
THOMPSON v. MCDONALD
sede the requirements for a higher rating specified in
§ 4.71a.
On appeal to the Veterans Court, Thompson argued
that the Board erred in relying on loss of motion under
§ 4.71a to determine his rating without additionally
taking into account functional loss due to pain as discussed
in § 4.40. After granting Thompson’s motion for
reconsideration of its initial decision, the Veterans Court
ultimately affirmed the Board’s decision.
The court reasoned that, because the conceded additional
functional loss due to pain did not limit Thompson’s
forward flexion to 30 degrees or less, it did not warrant a
higher rating. The court stated:
Mr. Thompson is correct in his assertion that
“range of motion ratings under § 4.71a do ‘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 a greater limitation of motion due to
pain on use including during flare-ups.’” Mot. for
Reconsideration at 3 (quoting DeLuca [v. Brown, 8
Vet. App. 202, 205–06 (1995)]). Nevertheless, despite
Mr. Thompson’s assertions that the [Veterans
Court’s] finding runs afoul of DeLuca because
it “appears to state that the ratings in 38 C.F.R.
§ 4.71a adequately consider functional loss due to
pain,” Mot. for Reconsideration at 2, the [Veterans
Court’s] finding here is simply that the Board did
not err in finding that the conceded additional
functional loss due to pain is not compensable
above and beyond the disability rating already assigned.
In other words, 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. It appears that Mr. Thompson would have
the [Veterans Court] ignore the express language
THOMPSON v. MCDONALD 7
he quotes from DeLuca: “consideration of a higher
rating based on a greater limitation of motion due
to pain.” DeLuca, 8 Vet. App[.] at 205–06 [sic].
Here, a higher rating based on greater limitation
of motion due to pain is not warranted because
the limitation of motion due to pain does not rise
to the level necessary for a 40% disability rating.
J.A. 13.
The Veterans Court entered judgment based on its
decision, and Thompson appealed to this court. We have
jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. See 38 U.S.C. § 7292. We possess “exclusive
jurisdiction to review and decide any challenge to the
validity of any statute or regulation or any interpretation
thereof . . . and to interpret constitutional and statutory
provisions, to the extent presented and necessary to a
decision.” Id. § 7292(c). We must decide all relevant
questions of law and hold unlawful and set aside regulations
or interpretations thereof—besides factual determinations—
that were relied upon in the Veterans Court
decision and are “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B)
contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right; or
(D) without observance of procedure required by law.” Id.
§ 7292(d)(1). We may not review a challenge to a factual
determination or law or regulation as applied to the facts,
unless a constitutional issue is presented. Id.
§ 7292(d)(2). We review Veterans Court decisions regarding
issues of law without deference. Cushman v.
Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
8 THOMPSON v. MCDONALD
“To interpret a regulation we must look at its plain
language and consider the terms in accordance with their
common meaning.” Lockheed Corp. v. Widnall, 113 F.3d
1225, 1227 (Fed. Cir. 1997) (citing Perrin v. United States,
444 U.S. 37, 42 (1979) and Rio Hondo Mem’l Hosp. v.
United States, 689 F.2d 1025, 1034 n.11 (Ct. Cl. 1982)).
Section 4.40 speaks generally in terms of disability of
the musculoskeletal system, and explains what may cause
a functional loss. The section defines disability of the
musculoskeletal system as “primarily the inability, due to
damage or infection in parts of the system, to perform the
normal working movements of the body with normal
excursion, strength, speed, coordination and endurance.”
38 C.F.R. § 4.40.
Section 4.40 also mandates that “a part which becomes
painful on use must be regarded as seriously disabled.”
Id. Yet, the section provides no explicit rating for
such disability. Instead, the section explains that “functional
loss . . . may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion.” Id. It also explains
that “[w]eakness is as important as limitation of motion.”
Id.
In discussing disability of the musculoskeletal system,
the section focuses on the “normal working movements of
the body” in terms of several elements, including normal
excursion. The section also mentions pain. It speaks to
pain (in terms of use) as capable of rendering a part of the
musculoskeletal system or body seriously disabled.
However, despite its discussion of pain, disability, and
functional loss, § 4.40 never explicitly lists any actual
disability ratings.
We read the words of a regulation in their context and
with a view to their place in the overall regulatory
scheme. See Mass. Mut. Life Ins. Co. v. United States, 782
F.3d 1354, 1365 (Fed. Cir. 2015) (noting that we apply the
THOMPSON v. MCDONALD 9
same interpretive rules for analyzing regulations that are
used for analyzing statutes); Davis v. Mich. Dep’t of
Treasury, 489 U.S. 803, 809 (1989) (noting that the words
of a statute are read in context and with respect to the
overall statutory scheme). See also United Sav. Ass’n of
Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365,
371 (1988).1 Based upon our prior discussion of the
regulatory framework, it is clear that § 4.40 must be
viewed in light of the explicitly listed disability ratings for
the musculoskeletal system in § 4.71a.
Read together, the absence of any explicit ratings in
§ 4.40 makes sense. In promulgating 38 C.F.R. part 4, the
VA carefully located § 4.40 and similar guidance under
the umbrella heading of the musculoskeletal system. The
VA also clearly included separate sections explicitly
listing relevant disability ratings. See 38 C.F.R. §§ 4.71a,
4.73. Given this regulatory framework, it is clear that the
guidance of § 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.
This is confirmed by the language of § 4.40 itself.
That section focuses upon disability in terms of the body’s
“normal working movements.” This is understandable in
light of the range of motion thresholds in the relevant
portion (dealing with the spine) of § 4.71a. Indeed, the
relevant portion of § 4.71a addresses the spine and pro-
1 As Justice Scalia observed in writing for the
Court, statutory construction is a holistic endeavor; a
“provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme—
because the same terminology is used elsewhere in a
context that makes its meaning clear . . . or because only
one of the permissible meanings produces a substantive
effect that is compatible with the rest of the law.” Timbers,
484 U.S. at 371.
10 THOMPSON v. MCDONALD
vides for disability ratings “[w]ith or without” pain, but
contains no mention of “functional loss” as such. Id.
§ 4.71a. Section 4.40, as discussed above, makes clear
that disability may occur if a veteran cannot perform the
normal working movements of the body with normal
excursion, strength, speed, coordination, and endurance.
Section 4.40 also makes clear that functional loss may be
due to pain and that pain may render a part seriously
disabled. When evaluating a disability, § 4.40 provides a
broad canvas. However, whatever the background, an
applicant for disability benefits is rated based on the
criteria set forth in § 4.71a.
So understood, the Veterans Court’s legal interpretation
in this case was proper. Because there is no error of
law in the Veterans Court’s judgment, and because we
cannot review the court’s application of the law to the
facts, we must affirm.2
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Veterans Court.
AFFIRMED
COSTS
No costs.
2 In view of our analysis and disposition of this
case, we need not address other arguments presented by
the parties.

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