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What Is Functional Loss in VA Disability Claims? 38 CFR 4.40 and 4.45

38 CFR 4.40 and 4.45 describe functional loss in the musculoskeletal system. Section 4.40 refers to the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and section 4.45 lists factors such as less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.

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Defining functional loss under 38 CFR 4.40

38 CFR 4.40 states that 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.

The six aspects of joint function in 38 CFR 4.45

38 CFR 4.45 says inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse.

DeLuca and flare-up degree estimates

In DeLuca v. Brown, 8 Vet.App. 202, 206 (1995), the U.S. Court of Appeals for Veterans Claims (CAVC) said that when a diagnostic code rests on limitation of motion, 4.40 and 4.45 also apply, and an examiner should be asked whether pain could significantly limit function during flare-ups or repeated use, with the answer portrayed, if feasible, as the degree of additional range-of-motion loss.

Correia v. McDonald and 38 CFR 4.59 testing

In Correia v. McDonald, 28 Vet.App. 158 (2016), the CAVC read the last sentence of 38 CFR 4.59 as calling for range-of-motion testing on active and passive motion, in weight-bearing and nonweight-bearing, and with the opposite joint where possible, in joint cases.

Records that may be relevant

Records potentially relevant to functional loss include treatment notes, physical therapy notes, and statements describing how the joint affects movement.

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