Rating Logic
What Is the VA Painful Motion Rule? 38 CFR 4.59 & DeLuca Explained
38 CFR 4.59 states that "the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability" and that it is "the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."
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What 38 CFR 4.59 says
Under 38 CFR 4.59, the VA recognizes that painful motion is an essential manifestation of joint disability.
What 38 CFR 4.59 says about testing
The last sentence of 38 CFR 4.59 reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The CAVC read that sentence in Correia v. McDonald, 28 Vet.App. 158 (2016). In Mitchell v. Shinseki, 25 Vet.App. 32 (2011), the CAVC held that pain alone does not constitute functional loss under rules based on range of motion.
The DeLuca flare-up factors (38 CFR 4.40 and 4.45)
DeLuca v. Brown, 8 Vet.App. 202, 206 (1995), asked that an examiner give an opinion on whether pain could significantly limit functional ability during flare-ups or repeated use, portrayed "if feasible" as degrees of additional range-of-motion loss.
Universal application across musculoskeletal joints
Southall-Norman v. McDonald, 28 Vet.App. 346 (2016), held that 38 CFR 4.59 is not limited to diagnostic codes predicated on range-of-motion measurements.
How to document painful motion at a C&P exam
Records potentially relevant to painful motion include treatment notes, physical therapy records, and personal statements.
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