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M21-1, Part III, Subpart iv, Chapter 4, Section A – Musculoskeletal Conditions

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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1.  Evaluating Painful Motion


Introduction
This topic contains information on evaluating painful motion, including

Change Date
February 19, 2019

III.iv.4.A.1.a.   Establishing the Minimum Compensable Evaluation Under 38 CFR 4.59

An actually painful joint can be a basis for assignment of a compensable evaluation even though the specific criteria for a compensable evaluation listed in a diagnostic code (DC) for the joint are not met.
The regulatory language at 38 CFR 4.59 provides that
  • pain of a joint due to joint or periarticular (structures surrounding the joint) pathology is indicative of disability, and
  • an actually painful joint justifies the assignment of the minimum compensable evaluation for the joint under the applicable DC.
Guidance for assessment of a disability to determine whether painful motion exists is also included in 38 CFR 4.59.  Particularly, this regulation
  • describes ways in which painful motion can be discerned, such as
    • facial expression
    • wincing, etc., on pressure of manipulation
    • muscle spasms, or
    • crepitation in tendons, ligaments, or joint structures
  • requires that the findings be noted in the medical evidence to assist the rating authority in assigning a disability rating that adequately accounts for painful motion, and
  • explains the kinds of test results that must be obtained to permit an adjudicator to assess the effect of painful motion, including range of motion (ROM) tests
    • for passive and active motion
    • in both weight-bearing and nonweight-bearing circumstances, and
    • for the opposite undamaged joint for comparison purposes, if possible.
Notes:
  • 38 CFR 4.71a, DC 5002 and 5003 (and several other DCs that incorporate the criteria from those DCs by reference) provide that where limitation of motion (LOM) of joint(s) is noncompensable under DCs specific to the involved joint(s), a compensable evaluation can be assigned for the LOM if objectively confirmed by findings such as satisfactory evidence of painful motion.  In contrast, 38 CFR 4.59 provides an alternate basis for assigning a compensable evaluation for disabilities rated under those DCs on the basis of credible lay evidence of painful motion.  The minimum compensable evaluation may be assigned under38 CFR 4.59 based on subjective painful motion, and does not require objective evidence of painful motion.
  • Multiple precedential decisions of the Court of Appeals for Veterans Claims (CAVC) have impacted the application of 38 CFR 4.59, as discussed at M21-1, Part III, Subpart iv, 4.A.1.bt.  These holdings must be applied in determining whether the minimum compensable evaluation for a disability based on painful motion is warranted under 38 CFR 4.59.
Reference:  For more information on considering painful motion when assigning multiple LOM evaluations for a joint, see M21-1, Part III, Subpart iv, 4.A.2.c.

III.iv.4.A.1.b.  Precedential Court Holdings Impacting 38 CFR 4.59

Multiple precedential decisions have impacted the application of 38 CFR 4.59.  Refer to the table below for a listing of impactful precedential court holdings, a brief description of the impact, and the applicability date (date of decision) for each.  More detailed explanations for each holding and its impact on the application of 38 CFR 4.59 in claims processing can be found in M21-1, Part III, Subpart iv, 4.A.1.ci.
Holding
Summary of Impact
Date of Decision
DeLuca v. Brown, 8 Vet.App. 202 (1995)
Clarified exam requirements to assess the impact of pain on functional impairment including additional loss of motion due to pain.
December 22, 1995
Burton v. Shinseki, 25 Vet.App. 1 (2011)
38 CFR 4.59 is not limited in applicability to arthritis claims.
August 4, 2011
Mitchell v. Shinseki, 25 Vet.App. 32 (2011)
Clarified
  • exam requirements for assessing impact of painful motion with use and during flare-ups, and
  • that when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion.
August 23, 2011
Petitti v. McDonald, 27 Vet.App. 415 (2015)
  • 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint.
  • 38 CFR 4.71a, DC 5002does require objective evidence of painful motion.
October 28, 2015
Sowers v. McDonald, 27 Vet.App. 472 (2016)
  • limited by the DC applicable to the claimant’s disability, and
  • inapplicable to a DC that does not provide a compensable evaluation.
Note:  The Sowers holding influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59.
February 12, 2016
Note:  The policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59 is effective May 23, 2016.
Correia v. McDonald, 28 Vet.App. 158 (2016)
  • Clarified exam requirements for ROM testing to evaluate joint disabilities for painful motion in weight-bearing, nonweight-bearing, with active and passive motion, and in comparison to the opposite joint.
  • Directed that pain with passive motion (even in the absence of another indication of painful motion) is sufficient to satisfy the criteria for entitlement to the minimum compensable evaluation under 38 CFR 4.59.
July 5, 2016
Southall-Norman v. McDonald, 28 Vet.App. 346 (2016)
38 CFR 4.59 is not limited to DCs involving limited ROM.
 December 15, 2016
Reference:  For more information on assignment of effective dates associated with precedential court decisions, see M21-1, Part III, Subpart iv, 5.C.8.n-r.

III.iv.4.A.1.c.  Assessing Functional Loss Due to Pain Per Deluca v. Brown

In DeLuca v. Brown, 8 Vet.App. 202 (1995), the CAVC held that in examinations of musculoskeletal disabilities, the examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or with repeated use over a period of time.
This information must be portrayed in terms of the degree of additional ROM lost due to pain on use or during flare-ups.
Impact on application of 38 CFR 4.59:
  • Examinations must address the DeLuca criteria.
  • The DeLuca holding is not limited in impact to painful motion.  The holding impacts consideration of functional impairment due to pain and other factors as discussed in 38 CFR 4.4038 CFR 4.45, and M21-1, Part III, Subpart iv, 4.A.2.
  • Decision makers must properly assess the DeLuca findings in conjunction with 38 CFR 4.4038 CFR 4.45, and 38 CFR 4.59.  The disability is evaluated based on most severe loss of motion due to pain or following repetitive motion testing.
  • The Deluca decision was effective December 22, 1995.
Note:  The DeLuca holding had limited impact on the application of 38 CFR 4.59other than the fact that it may elicit evidence concerning the presence of pain.  However, DeLuca does impact application of 38 CFR 4.40 and 38 CFR 4.45.  InDeLuca, CAVC also clarified that the plain language of 38 CFR 4.45 does not limit the evaluation criteria contained therein to muscle injuries.
Reference:  For more information on assessing examinations for adequacy in conjunction with the DeLuca holding, see

III.iv.4.A.1.d.  Applicability of 38 CFR 4.59 Beyond Arthritis Per Burton v. Shinseki

Although the first sentence of 38 CFR 4.59 refers only to arthritis, the CAVC held in Burton v. Shinseki, 25 Vet.App. 1 (2011) that the regulation is, in fact, also applicable to joint conditions other than arthritis.
Impact on application of 38 CFR 4.59:
  • Do not limit assignment of the minimum compensable evaluation under 38 CFR 4.59 to DCs involving arthritis.
  • The Burton holding affirmed the Department of Veterans Affairs’ (VA’s) longstanding policy on the application of 38 CFR 4.59 to disabilities in addition to arthritis.
  • The Burton holding is effective August 4, 2011.

III.iv.4.A.1.e.  Assessing Functional Loss Due to Pain Per Mitchell v. Shinseki

In Mitchell v. Shinseki, 25 Vet.App. 32 (2011), the CAVC held that pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon ROM loss.  Thus, when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion.
The CAVC also held that
  • if pain is associated with movement, the examiner must give an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, and
  • the opinion must, if feasible, be expressed in terms of the degree of additional ROM loss due to pain on use or during flare-ups.
Impact on application of 38 CFR 4.59:
  • Examinations must address the Mitchell criteria.
  • When painful motion on repeated use over time or during a flare-up results in additional loss of ROM, then the condition should be evaluated based on the additional loss of ROM.
  • ROM must be actually limited.  Do not assign an evaluation for loss of ROM based on the point at which pain accompanies motion unless the pain actually causes reduced ROM on objective assessment.
  • The Mitchell holding is not limited in impact to painful motion.  The holding impacts consideration of functional impairment due to pain and other factors as discussed in 38 CFR 4.4038 CFR 4.45, and M21-1, Part III, Subpart iv, 4.A.2.c.
  • The Mitchell holding is effective August 23, 2011.
Reference:  For more information on assessing examinations for adequacy in conjunction with the Mitchell holding, see

III.iv.4.A.1.f. Satisfactory Evidence of Painful Motion Per Petitti v.McDonald

In Petitti v. McDonald, 27 Vet.App. 415 (2015), the CAVC held that 38 CFR 4.59does not require objective evidence of painful motion for assignment of a minimal compensable evaluation of a joint.  This guidance applies to all musculoskeletal disabilities irrespective of the DC that has already been assigned to the disability.
Note:  Apply the historical criteria for acceptance of an informal claim under 38 CFR 3.157, as discussed in M21-1, Part III, Subpart iv, 5.C.10, when a report of examination or hospitalization at a VA or uniform services facility shows worsening of the disability evidenced by the onset of painful motion of a service-connected (SC) disability evaluated as noncompensable on before March 24, 2015.
Impact on application of 38 CFR 4.59:
  • Under 38 CFR 4.59, objective evidence of painful motion is not required for assignment of the minimum compensable evaluation for the musculoskeletal disability.  Lay evidence of painful motion is sufficient.
    • Lay testimony may consist of a Veteran’s own statement to the extent that the statement describes symptoms capable of lay observation.
    • Lay testimony may consist of a description by another person detailing observations of a Veteran’s difficulty walking, standing, sitting, or undertaking other activity.
  • The following are examples (not an all-inclusive list) of symptoms sufficient to assign the minimum compensable evaluation for the joint under 38 CFR 4.59:
    • pain with weight-bearing or nonweight-bearing
    • pain with passive ROM
    • pain reported during repeated use, or
    • pain reported during flare-ups.
  • The following are examples (not an all-inclusive list) of symptoms that can support a claimant’s report of painful motion but are not sufficient evidence, by themselves, to support assignment of the minimum compensable evaluation under 38 CFR 4.59:
    • crepitus/joint crepitation (a clinical sign of a crackling or grating feeling or sound in a joint), and
    • pain on palpation.
  • An examiner’s opinion that painful motion would be present with repeated use over time or during flare-ups (as required in the Mitchell opinion) may be sufficient lay evidence to support a finding of painful motion, if found credible.
  • A finding of painful motion under 38 CFR 4.59 based on lay or subjective reporting of pain is contingent on a credibility assessment as discussed at M21-1, Part III, Subpart iv, 5.A.2.b.
  • Prior to the Petitti holding, longstanding VA policy was that objective evidence of painful motion was required to assign the minimum compensable evaluation under 38 CFR 4.59.
  • The Petitti holding is effective October 28, 2015.
References:  For more information on

III.iv.4.A.1.g.  Selecting a DC and Minimum Compensable Evaluation for 38 CFR 4.59 Per Sowers v. McDonald

In Sowers v. McDonald, 27 Vet.App. 472 (2016), the CAVC held that 38 CFR 4.59is limited by the DC applicable to the claimant’s disability, and where that DC does not provide a compensable rating, 38 CFR 4.59 does not apply.
Example:  Painful motion of a right ring finger fracture that is rated under 38 CFR 4.71a, DC 5230 would not receive a compensable evaluation under 38 CFR 4.59because this DC does not contain a compensable evaluation.
Important:  In Sowers, the CAVC did not specifically hold that the minimum compensable evaluation must be assigned under the applicable DC for the disability involved.  However, the holding did influence a subsequent policy determination that the minimum compensable evaluation under the DC must be assigned when painful motion is demonstrated under 38 CFR 4.59.  This policy is effective May 23, 2016.
  • This policy particularly affects painful motion of the shoulder evaluated under 38 CFR 4.71a, DC 5201.  Under this DC, painful motion of the shoulder warrants assignment of a 20-percent evaluation.
  • This decision represents a change in longstanding VA policy in which the minimum compensable evaluation was interpreted as a 10-percent evaluation irrespective of the DC involved.
Impact on application of 38 CFR 4.59:
  • Effective February 12, 2016, the Sowers holding requires that 38 CFR 4.59 must be applied based on the DC applicable to the disability.  In other words, the DC most appropriate to the disability being evaluated must be selected, and then 38 CFR 4.59 must be applied accordingly.
  • Effective May 23, 2016, the minimum compensable evaluation refers to the lowest evaluation specified under the DC most applicable to the disability.

III.iv.4.A.1.h.  Assessing Joint Disabilities for Pain Per Correia v. McDonald

In Correia v. McDonald, 28 Vet.App. 158 (2016), the CAVC held that the final sentence of 38 CFR 4.59 requires that certain ROM testing be conducted to assess for pain whenever possible in evaluating joint disabilities.  Particularly,
  • the joints involved must be tested for pain
    • on both active and passive motion, and
    • in weight-bearing and nonweight-bearing, and
  • the ROM of the opposite, undamaged joint must be assessed for comparison, if possible.
CAVC also held that pain with passive motion, and not just active motion, warrants entitlement to the minimum compensable evaluation under 38 CFR 4.59.
Note:  If the examiner cannot assess the motion of the opposite, undamaged joint,and an opposite joint does exist, the examiner should explain why the assessment is not possible.  Examples of situations in which ROM of the opposite, undamaged joint cannot be assessed for comparison include (but are not limited to) the
  • spinal disabilities, since there is no opposite joint
  • disabilities wherein the opposite, undamaged joint has been amputated, or
  • disabilities wherein the opposite joint is damaged or disabled and would not be an effective comparison to ascertain the degree of impairment of the SC joint.
Impact on application of 38 CFR 4.59:
  • Examinations must address the Correia criteria.
  • Assign the minimum compensable evaluation when there is evidence of painful motion with
    • active or passive motion, and/or
    • with weight-bearing or nonweight-bearing.
  • Prior to the Correia holding, longstanding Veterans Benefits Administration policy was that only pain with active motion triggers application of 38 CFR 4.59.
  • The Correia holding is effective July 5, 2016.

III.iv.4.A.1.i.  Selecting a DC for Application of 38 CFR 4.59 Per Southall-Norman v. McDonald

In Southall-Norman v. McDonald, 28 Vet.App. 346 (2016), the CAVC held that 38 CFR 4.59 is
  • not limited to the evaluation of musculoskeletal disabilities under DCs predicated upon ROM measurements, and
  • applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated upon ROM measurements.
Examples:
Impact on application of 38 CFR 4.59:
  • When musculoskeletal disability involves joint or periarticular pathology that is painful, 38 CFR 4.59 is applicable when painful motion is present without regard to whether the DC used for evaluation involves ROM.
  • The Southall-Norman holding represents a change to longstanding VA policy which directed that 38 CFR 4.59 applies only to DCs involving ROM.
  • The Southall-Norman holding is effective December 15, 2016.

III.iv.4.A.1.j.  Assessing Medical Evidence for Functional Loss Due to Pain

Medical evidence used to evaluate functional impairment due to pain must account for painful motion, pain on use, and pain during flare-ups or with repeated use over a period of time.
As a part of the assessment conducted in accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), the medical evidence must
  • clearly indicate the exact degree of movement at which pain limits motion in the affected joint, and
  • include the findings of at least three repetitions of ROM.
Per Mitchell v. Shinseki, 25 Vet.App. 32 (2011), when pain is associated with movement, an examiner must opine or the medical evidence must show whether pain could significantly limit functional ability
  • during flare-ups, or
  • when the joint is used repeatedly over a period of time, and
  • if there is functional impairment found during flare-ups or with repeated use over a period of time, the examiner must provide, if feasible, the degree of additional LOM due to pain on use or during flare-ups.
  • the joints involved must be tested for pain
    • on both active and passive motion, and
    • in weight-bearing and nonweight-bearing, and
  • if possible, the ROM of the opposite, undamaged joint must be assessed for comparison.
Important:  If the examiner is unable to provide any of the above findings, he or she must
  • indicate that he/she cannot determine, without resort to mere speculation, whether any of these factors cause additional functional loss, and
  • provide the rationale for this opinion.
Note:  Per Jones (M.) v. Shinseki, 23 Vet.App. 382 (2010), the VA may only accept a medical examiner’s conclusion that an opinion would be speculative if
  • the examiner has explained the basis for such an opinion, identifying what facts cannot be determined, or
  • the basis for the opinion is otherwise apparent in VA’s review of the evidence.
Reference:  For more information on reviewing musculoskeletal examination reports for sufficiency, see M21-1, Part III, Subpart iv, 3.D.4.g-h.

III.iv.4.A.1.k.  Entering DeLucaand Mitchell Data in the Evaluation Builder

The findings of DeLuca repetitive ROM testing or the functional loss expressed in the Mitchell opinion will be used to evaluate the functional impairment of a joint due to pain.
  • Only the most advantageous finding will be utilized to evaluate the joint condition.
  • Do not “add” the LOM on DeLuca exam to the LOM expressed in aMitchell opinion.
Note:  For purposes of data entry in the Evaluation Builder, if evaluating a joint where data fields are present for only initial ROM and for DeLuca (but not forMitchell), enter either the DeLuca or the Mitchell data in the DeLuca field, whichever results in the higher disability evaluation.
References:  For more information on the

III.iv.4.A.1.l. Applying 38 CFR 4.59

Refer to the table below for procedures for assessing the applicability of and applying 38 CFR 4.59.
Step
Action
1
Determine the DC most applicable to the disability based on either
  • the disability and corresponding DC as specifically listed in the Rating Schedule, or
  • application of 38 CFR 4.20 for selection of the most appropriate analogous DC.
Proceed to Step 2.
Note:  Per Sowers v. McDonald, 27 Vet.App. 472 (2016), 38 CFR 4.59 is limited by the DC applicable to the claimant’s disability.
2
Review findings on examination to determine whether painful motion is present.  If painful motion is
  • present, proceed to Step 3, or
  • not present, do not apply 38 CFR 4.59.
Note:  Per Petitti v. McDonald, 27 Vet.App. 415 (2015), 38 CFR 4.59does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint.
3
If the DC
  • involves joint or periarticular pathology, go to Step 4, or
  • does not involve joint or periarticular pathology, then application of 38 CFR 4.59 is not warranted.
Note:  Per Southall-Norman v. McDonald, 28 Vet.App. 346 (2016),38 CFR 4.59 is not limited to DCs involving limited ROM.
4
Review the available evaluations under the selected DC.  If the selected DC
  • allows for assignment of a compensable evaluation, then assign the minimum compensable evaluation for painful motion if other symptoms do not warrant a higher evaluation, or
  • does not allow for a compensable evaluation, then do not assign a compensable evaluation under 38 CFR 4.59.
Note:  The holding in  Sowers v. McDonald, 27 Vet.App. 472 (2016) influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59.

III.iv.4.A.1.m. Examples –Considering 38 CFR 4.59 for Shoulder Disabilities

The following examples demonstrate the proper procedures for considering 38 CFR 4.59 when evaluating shoulder disabilities.
Example 1:  Assume a shoulder strain with forward elevation and abduction limited to 145 degrees with credible evidence of pain while performing each motion, starting at 140 degrees.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5201.  Under 38 CFR 4.59 there is actually painful motion and joint or periarticular pathology (a strain).  Therefore, the intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for shoulder motion under the DC is 20 percent.
Example 2:  Assume the same facts as in Example 1 but the diagnosis is traumatic arthritis of the shoulder based on x-rays.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5010-5201 with application of 38 CFR 4.59.  The ROM does not meet the criteria for a 20-percent evaluation under 38 CFR 4.71a, DC 5201because arm motion is not limited at shoulder height.  However, pursuant to 38 CFR 4.59 there is actually painful motion and joint or periarticular pathology (arthritis).  Therefore, the intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for shoulder motion under 38 CFR 4.71a, DC 5201 is 20 percent.
Although the diagnosis was traumatic arthritis, using 38 CFR 4.71a, DC 5010-5201is more advantageous to the Veteran.  However, in some cases, a 10-percent evaluation under the arthritis criteria may be appropriate.  See Example 3.
Example 3:  Assume the same facts as in Example 2 except that there was no pain on motion.  There was a minor amount of swelling of the shoulder.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5010.  There is x-ray evidence of traumatic arthritis and motion that is noncompensable under the applicable DC.  There is no evidence of painful motion, so 38 CFR 4.59 is not applicable.  Under 38 CFR 4.71a, DC 5010, traumatic arthritis is rated using the criteria of 38 CFR 4.71a, DC 5003, which requires that LOM be “objectively confirmed” by findings such as swelling, spasm, or satisfactory evidence of painful motion.  In this case there was objective evidence supporting the LOM – namely the minor swelling of the shoulder.

III.iv.4.A.1.n. Examples– Considering Non-objective Pain Under 38 CFR 4.59

Example 1:  On examination, a claimant reports current symptoms of regular pain of the right knee (particularly when fully straightening the knee) that is worsened with increased activity.  The examiner finds normal ROM without pain on examination.  Repetitive motion testing produces no evidence of pain or loss of motion.  The assessment is right knee strain.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5261.  The claimant’s reports of joint pain are found to be credible.  There is no basis to reject the complaints of pain as lacking in credibility.  38 CFR 4.59 does not require objective evidence of painful motion.  The claimant’s statement establishes that there is actually painful motion of the joint, even though it was not objectively verified on VA examination.
Example 2:  On examination, a claimant reports constant pain of the left elbow (particularly when bending the arm).  The examiner finds normal ROM without pain on examination. Repetitive motion testing produces no evidence of pain or loss of motion.  There is no swelling or spasm. The assessment is degenerative arthritis of the left elbow corroborated by x-rays.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003-5206.  The claimant’s reports of joint pain are found to be credible.  There is no basis to reject the complaints of pain as lacking in credibility.  Although 38 CFR 4.71a, DC 5003 requires noncompensable LOM and objective confirmation of LOM by spasm, swelling, or satisfactory evidence of painful motion,38 CFR 4.59 provides an alternative basis for a compensable evaluation and does not require objective evidence of painful motion.  The claimant’s statement establishes that there is actually painful motion of the joint, even though pain was not objectively verified on VA examination.
Example 3:  Start with the same facts as Example 2.  However, in this example, claimant states on exam that he has had significant pain on elbow motion consistently for the last year and particularly in the last week.  However, treatment records from the past year show normal, painless range of elbow motion and no history of pain at rest, or on motion.  Notably, in a VA outpatient report from two days before the VA examination, the claimant told his treating doctor that his elbow was not painful and had not been painful at all in the last year.  Continue the zero-percent evaluation.  Although the Veteran reported elbow pain on examination, review of the evidence as a whole satisfactorily demonstrates that the Veteran’s complaints of painful motion were not credible.  Elbow motion is not found to be actually painful.

III.iv.4.A.1.o.  Example– Considering Pain With Passive ROM Under 38 CFR 4.59

Service connection (SC) is established for left rotator cuff impingement.  The Veteran reports shoulder pain when lifting the left arm – particularly with repetitive motion of the arm at or above shoulder height.  The Veteran reported a feeling of weakness with repeated over the head motions like painting.  On examination the Veteran had full active forward elevation, abduction and external and internal rotation of the shoulder including on repeated motion.  There was no report of pain with active motion.  Passive ROM testing for impingement including the Hawkin’s Sign was positive and reproduced impingement with the guided movements at shoulder height.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5201.  The Hawkin’s Sign is a test for pain on passive ROM.  Under 38 CFR 4.59 the shoulder is actually painful to passive ROM and there is joint or periarticular pathology (rotator cuff impingement).  The intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for limited ROM of the shoulder under the DC is 20 percent.
Note:  Medical Electronic Performance Support System (EPSS) provides that a rotator cuff tear should be rated by analogy to 38 CFR 4.71a, DC 5203 (clavicle or scapula, impingement of) because the rotator cuff holds the humeral head in the glenoid fossa of the scapula and consists of the muscles around the scapula.  However 38 CFR 4.71a, DC 5203 in turn provides that rather than rating impairment of the scapula by dislocation, nonunion, or malunion it may also be rated “on impairment of function of the contiguous joint.”  Medical EPSS notes that rotator cuff impingement is characterized by pain and weakness with motions at or above shoulder height and advises that there may be LOM of the arm for the purposes of 38 CFR 4.71a, DC 5201 in cases of rotator cuff disease.

III.iv.4.A.1.p. Evaluating Painful Motion of Minor Joints or Joint Groups Under 38 CFR 4.59

The determining factor as to whether a minimum compensable evaluation may be assigned under 38 CFR 4.59 is whether the appropriate corresponding DC for the joint or periarticular region involved includes a compensable evaluation, as demonstrated in Sowers v. McDonald, 27 Vet.App. 472 (2016).
38 CFR 4.59 does not include a specific provision limiting application to major joints or provisions for how to consider groups of minor joints.  Thus, major joint involvement or multiple minor joint involvement is not a factor in determining whether a minimum compensable evaluation may be assigned under 38 CFR 4.59.
The following principles apply when evaluating painful motion of the minor joints of the hands and feet:
  • 38 CFR 4.71a, DC 5228 and 5229 allow for compensable evaluations for LOM of the thumb, index finger, and long finger.  Consequently, compensable evaluations are warranted for painful motion of each of these fingers.  Separate evaluations must be assigned for each SC digit evaluated under these DCs affected by painful motion.
  • Painful motion of multiple toes of one foot due to injuries is most appropriately evaluated under 38 CFR 4.71a, DC 5284 since there is no specific code for evaluation of injuries of single toes.  A single evaluation is warranted for a single foot, whether it is affected by one or more painful toes or other painful joints of the foot.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a single 10-percent evaluation is warranted for painful motion of one of more toes or other joints in a foot due to injury.
    • Do not routinely utilize 38 CFR 4.71a, DC 5280 to evaluate painful motion of the first toe.
    • Assignment of a 10-percent evaluation for painful motion of the first toe under 38 CFR 4.71a, DC 5280 is appropriate only when the disability being evaluated is hallux valgus or another disability that is most appropriately analogously evaluated as hallux valgus (as required in the Sowers holding).
Note:  The definition of joint that is reliant on the distinction of major and minor joints at 38 CFR 4.45(f) is applicable for the purpose of rating arthritis but is notapplicable to 38 CFR 4.59.
References:  For  more information on

III.iv.4.A.1.q.  Examples– Painful Motion of Minor Joints

Example 1:  Hallux valgus with painful motion of the first toe is most appropriately evaluated under 38 CFR 4.71a, DC 5280.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a 10-percent evaluation is warranted for painful motion of the first toe.  This is applicable only when the disability evaluated is hallux valgus or another disability warranting analogous evaluation under this DC.
Example 2:  Residuals of fracture of the little finger with painful motion is most appropriately evaluated under 38 CFR 4.71a, DC 5230.  The only possible evaluation under this DC is a zero percent.  Therefore, a compensable evaluation cannot be assigned for painful motion of the little finger.
Example 3:  Painful motion due to fracture of the index or long finger is most appropriately evaluated under 38 CFR 4.71a, DC 5229.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a 10-percent evaluation is available for painful motion of the index finger and an additional 10-percent evaluation is warranted for painful motion of the long finger, each under 38 CFR 4.71a, DC 5229.

III.iv.4.A.1.r.  Example– Painful Motion and DC 5276

Situation:  SC is warranted for flat feet under 38 CFR 4.71a, DC 5276.  The clinical evidence shows complete relief of symptoms, including foot pain, with arch supports.  However, the record also contains credible lay reports of pain.
Outcome:  Although no more than a zero-percent evaluation is warranted under 38 CFR 4.71a, DC 5276 on the basis of complete symptom relief due to an orthotic device, application of 38 CFR 4.59 warrants assignment of a 10-percent evaluation.
Rationale:
  • Subjective, credible reports of painful motion trigger application of 38 CFR 4.59 pursuant to the Petitti holding.
  • The criteria for assignment of the minimum compensable evaluation under38 CFR 4.59 are entirely independent of the criteria for evaluation under the DC.  Thus, the relief of symptoms of pain is immaterial to assignment of the minimum compensable evaluation for painful motion under 38 CFR 4.59 for pes planus or other analogously rated disabilities.
  • Additionally, the Southall-Norman holding requires VA to apply 38 CFR 4.59 to all musculoskeletal codes involving joint or periarticular pathology to include even those, such as 38 CFR 4.71a, DC 5276, that do not specifically consider LOM.
Note:  The minimum compensable evaluation under 38 CFR 4.71a, DC 5276 is a single 10 percent whether for unilateral or bilateral pes planus.  Accordingly, assignment of a single 10-percent evaluation for painful motion due to pes planus is warranted per 38 CFR 4.59 regardless of whether the painful motion is unilateral or bilateral.

III.iv.4.A.1.s. Evaluation Builder Workaround for Painful Motion of the Fingers

Until the Evaluation Builder can be updated to reflect the policy and procedural changes affecting evaluation of painful motion of the fingers, decision makers are responsible for ensuring that proper disability evaluations are assigned for painful motion of the fingers.
The workaround provided below will assist decision makers in properly evaluating finger disabilities.
Step
Action
1
When a separate evaluation for painful motion of the thumb or fingers is warranted, as discussed at M21-1, Part III, Subpart iv, 4.A.1.p, do not utilize the Evaluation Builder to evaluate the fingers.  Instead, utilize the Disability Decision Information – manual entry option in the Veterans Benefits Management System – Rating (VBMS-R).  Enter the appropriate disability evaluation information for painful motion of the affected digit(s).
2
In the rating analysis, include the following language to explain the assignment of a 10-percent evaluation for painful motion of the thumb, index finger, or long finger:
We have assigned a 10 percent evaluation based on:
     • Painful motion of the [input name of affected digit].
38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to the minimum compensable rating for the affected disability. Since you demonstrate painful motion, a minimum compensable evaluation of 10 percent is assigned.
3
Modify the text below to include only the criteria that is relevant to the fact pattern being addressed and incorporate into the rating narrative as the next higher evaluation criteria.
A higher evaluation of 20 percent is not warranted unless there is:
  • Limited motion of the thumb: with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; or,
  • Favorable ankylosis involving the index finger and any other finger; or,
  • Favorable ankylosis involving the long, ring and little fingers; or,
  • Unfavorable ankylosis involving the thumb; or,
  • Unfavorable ankylosis involving the long and ring fingers; or,
  • Unfavorable ankylosis involving the long and little fingers; or,
  • Unfavorable ankylosis involving the ring and little fingers; or,
  • Amputation of the thumb at distal joint or through distal phalanx; or,
  • Amputation of the index finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto; or,
  • Amputation of the long, ring or middle finger with metacarpal resection (more than one-half the bone lost).
In some situations, evaluation of disabilities of the hand requires multiple digits to be combined into a single diagnostic code.  Therefore, some higher evaluation criteria listed above include all possible higher digit-combination criteria.

III.iv.4.A.1.t.  Evaluation Builder Workaround for Painful Motion of the Feet

Until the Evaluation Builder can be updated to reflect the policy and procedural changes affecting evaluation of painful motion of the feet, decision makers are responsible for ensuring that proper disability evaluations are assigned for painful motion of the feet.
The workaround provided below will assist decision makers in properly evaluating foot disabilities.
Step
Action
1
When an evaluation for painful motion due to a foot disability evaluated under 38 CFR 4.71a, DC 5276-5284 is warranted, as discussed at M21-1, Part III, Subpart iv, 4.A.1.p, do not utilize the Evaluation Builder to evaluate the painful motion of the foot.  Instead, utilize the Disability Decision Information – manual entry option in VBMS-R.  Enter the appropriate disability decision information for the foot condition.
2
In the rating analysis, include the following language to explain the assignment of a 10-percent evaluation for painful motion due to the foot disability:
We have assigned a 10 percent evaluation based on:
     • Painful motion due to [input name of disability].
38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to the minimum compensable rating for the affected disability. Since you demonstrate painful motion, a minimum compensable evaluation of 10 percent is assigned.
3
Utilize the Legacy Evaluation Builder to generate the appropriate next higher evaluation criteria for the selected DC.

2.  Evaluating Joint Conditions and Functional Loss


Introduction

This topic contains information on evaluating joint conditions and functional loss,  including

Change Date

April 13, 2018

III.iv.4.A.2.a.  Assigning Multiple LOM Evaluations for a Joint

In VAOPGCPREC 9-2004, the Office of General Counsel (OGC) held that separate evaluations under 38 CFR 4.71a, DC 5260, (limitation of knee flexion) and 38 CFR 4.71a, DC 5261, (limitation of knee extension) can be assigned without pyramiding.  Despite the fact that knee flexion and extension both occur in the same plane of motion, limitation of flexion (bending the knee) and limitation of extension (straightening the knee) represent distinct disabilities.
Important:
Note:  The Federal Circuit has definitively ruled that multiple evaluations for the shoulder under 38 CFR 4.71a, DC 5201, are not permitted.  In Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013) the court held that a Veteran is entitled to a single rating under 38 CFR 4.71a, DC 5201, even though a shoulder disability results in LOM in both flexion (raising the arm in front of the body) and abduction (raising the arm away from the side of the body).
References:  For more information on

III.iv.4.A.2.b.  Assigning aSeparate Noncompensable Evaluation When Schedular Zero-Percent Criteria Are Not Specified

When considering a separate evaluation for a motion of a joint specified in M21-1, Part III, Subpart iv, 4.A.2.a, where zero-percent evaluation criteria are not provided by the DC, any LOM for that specific movement falling short of criteria for a compensable level of evaluation will be assigned a separate zero-percent evaluation.

38 CFR 4.31 provides that in every instance where the schedule does not provide a zero-percent evaluation for a DC, a zero-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.
The motions include
Example:  Examination shows flexion of the hip limited to 60 degrees and extension limited to 5 degrees.  Normal hip ROM is from zero degrees (fully extended) to 125 degrees (fully flexed).  The limitation of extension to 5 degrees is rated 10 percent under 38 CFR 4.71a, DC 5251.  38 CFR 4.71a, DC 5252(limitation of flexion) does not list criteria for a zero-percent evaluation but a 10-percent evaluation requires flexion limited to 45 degrees.  Because there is limited flexion not meeting the 10-percent criteria and there is no defined schedular zero-percent evaluation criteria, a zero-percent evaluation is warranted for limited flexion of the hip under 38 CFR 4.71a, DC 5252.

III.iv.4.A.2.c.  Considering Pain When Assigning Multiple LOM Evaluations for a Joint

When considering the role of pain in evaluations for multiple motions of a single joint, the following guidelines apply.
  • When more than one qualifying joint motion is actually limited to a compensable degree and there is painful but otherwise noncompensable limitation of the complementary movement(s), only one compensable evaluation can be assigned.
    • Mitchell v. Shinseki, 25 Vet. App. 32 (2011) reinforced that painful motion is the equivalent of limited motion only based on the specific language and structure of 38 CFR 4.71a, DC 5003, not for the purpose of 38 CFR 4.71a, DC 5260, and 38 CFR 4.71a, 5261.  For arthritis, if one motion is actually compensable under its 52XX-series DC, then a 10-percent evaluation under 38 CFR 4.71a, DC 5003, is not available and the complementary motion cannot be treated as limited at the point where it is painful.
    • 38 CFR 4.59 does not permit separate compensable evaluations for each painful joint motion.  It only provides that VA policy is to recognize actually painful motion as entitled to at least the minimum compensable evaluation for the joint.
  • When each qualifying joint motion is painful but motion is not actually limited to a compensable degree under its applicable 52XX-series DC,only one compensable evaluation can be assigned.
    • Assigning multiple compensable evaluations for pain is pyramiding.
    • A joint affected by arthritis established by x-ray may be evaluated as 10-percent disabling under 38 CFR 4.71a, DC 5003.
    • For common joint conditions that are not evaluated under the arthritis criteria such as a knee strain or chondromalacia patella, a 10-percent evaluation can be assigned for the joint based on pain on motion under 38 CFR 4.59.  Do not apply instructions from Note (1) under 38 CFR 4.71a, DC 5003, for non-arthritic conditions, since the instructions are strictly limited to arthritic conditions.  See example in M21-1, Part III, Subpart iv, 4.A.2.i.
References:  For more information on

III.iv.4.A.2.d.  Example 1: Compensable Limitation of Two Joint Motions

Situation:  Evaluation of chronic knee strain with the following examination findings:
  • Flexion is limited to 45 degrees.
  • Extension is limited by 10 degrees.
  • There is no painful motion.
  • There is no additional limitation of flexion or extension on additional repetitions or during flare-ups.
Result:  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5260, and a separate 10-percent evaluation under 38 CFR 4.71a, DC 5261.
Explanation:  Each disability (limitation of flexion and limitation of extension)warrants a separate evaluation and the evaluations are for distinct disability.

III.iv.4.A.2.e.  Example 2: Compensable Limitation of One Motion With Pain in Another Motion

Situation:  Evaluation of knee tenosynovitis with the following examination findings:
  • Flexion is limited to 45 degrees with pain at that point and no additional loss with repetitive motion.
  • Extension is full to the 0-degree position, but active extension is limited by pain to 5 degrees.
Result:  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5260 and a noncompensable evaluation under 38 CFR 4.71a, DC 5261.
Explanation:
  • Flexion is compensable under 38 CFR 4.71a, DC 5260, but extension remains limited to a noncompensable degree under 38 CFR 4.71a, DC 5261.
  • Under Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the painful extension could only be considered limited for the purpose of whether a 10-percent evaluation can be assigned for the joint under 38 CFR 4.71a, DC 5003, which is not applicable in this example because a compensable evaluation was already assigned for flexion under 38 CFR 4.71a, DC 5260.
  • 38 CFR 4.59 does not support a separate compensable evaluation for painful extension.  The regulation states that the intention of the rating schedule is to recognize actually painful joints due to healed injury as entitled to at least the minimum compensable evaluation for the joint, not for each painful movement.
  • If the fact pattern involved chondromalacia patella or a knee strain rather than tenosynovitis, the result would be the same.

III.iv.4.A.2.f.  Example 3:  Noncompens-able Limitation of Two Motions With Pain

Situation:  Evaluation of knee arthritis shown on x-ray with the following examination findings:
  • Flexion is limited to 135 degrees with pain at that point.
  • Extension is full to the 0-degree position with pain at that point.
  • There is no additional loss of flexion or extension on repetitive motion.
Result:  Assign one 10-percent evaluation for the knee under 38 CFR 4.71a, DC 5003.
Explanation:
  • There is limitation of major joint motion to a noncompensable degree under 38 CFR 4.71a, DC 5260, and 38 CFR 4.71a, DC 5261, x-ray evidence of arthritis and satisfactory evidence of painful motion.  Painful motion is limited motion for the purpose of applying 38 CFR 4.71a, DC 5003.  Therefore, a 10-percent evaluation is warranted for the joint.
  • Assigning two compensable evaluations, each for pain, would be pyramiding.
  • Neither 38 CFR 4.71a, DC 5003, nor 38 CFR 4.59 permits separate 10-percent evaluations for painful flexion and extension; they provide for a 10-percent evaluation for a joint.
  • If the fact pattern involved chondromalacia patella or a knee strain rather than arthritis, a 10-percent evaluation, not separate evaluations, would still be warranted.  However, the authority would be 38 CFR 4.59 and 38 CFR 4.71a, DC 5260 would be used rather than 38 CFR 4.71a, DC 5003.

III.iv.4.A.2.g.  Example of Evaluating a Joint With Full ROM and Functional Loss Due to Pain

Situation:  Evaluation of a knee condition with normal initial ROM and additional functional loss indicated on DeLuca and Mitchell assessments.
  • Examination reveals normal ROM for extension of the knee, but pain on motion is present.
  • In applying the DeLuca repetitive use test, the examiner determines that after repetitive use extension of the knee is additionally limited, and the post-test ROM is to 10 degrees due to pain.
  • The examiner provides a Mitchell assessment that during flare-ups the extension of the knee would be additionally limited to 15 degrees due to pain.
Result:  Assign one 20-percent disability evaluation under 38 CFR 4.71a, DC 5261for limited extension of the knee.
Explanation:  15-degree limitation of extension, expressed in the Mitchell opinion, is the most advantageous assessment of functional loss for extension of the knee in this scenario.  Therefore, the knee will be evaluated based on extension limited to 15 degrees, resulting in a 20-percent evaluation under 38 CFR 4.71a, DC 5261.
References:  For more information on

III.iv.4.A.2.h.  Example of Evaluating a Joint With LROM and Functional Loss Due to Pain

Situation:  Evaluation of a knee condition with limited initial ROM and additional functional loss indicated on DeLuca and Mitchell assessments.
  • Flexion of the knee is limited to 70 degrees with pain on motion during initial examination.
  • In applying the DeLuca repetitive use test, the examiner determines that after repetitive use flexion of the knee is additionally limited, and the post-test ROM is 50 degrees as a result of pain with repetitive use.
  • The examiner provides a Mitchell assessment that during flare-ups the estimated ROM for flexion of the knee would be 30 degrees due to pain.
Result:  Assign one 20-percent disability evaluation under 38 CFR 4.71a, DC 5260for limited flexion of the knee.
Explanation:  Flexion of the knee would be assessed at 30 degrees, as the ROM estimated in the Mitchell assessment is the most advantageous representation of the Veteran’s limitation of flexion.
References:  For more information on

III.iv.4.A.2.i.Example of Evaluating Joints With Arthritis by X-Ray Evidence Only With Other Joint(s) Affected by Non-arthritic Condition

Example: A Veteran is rated 10 percent for bilateral arthritis of the elbows confirmed by x-ray evidence, without limited or painful motion or incapacitating exacerbations.  Veteran subsequently files a claim for SC for chondromalacia of the right knee and is awarded a 20-percent evaluation based on VA examination, which revealed limitation of flexion of the right knee to 30 degrees.
Analysis:  A 10-percent evaluation for bilateral arthritis of the elbows and a separate 20-percent evaluation for right knee chondromalacia is justified.  In this case, the rating does not violate Note (1) under 38 CFR 4.71a, DC 5003, because the knee condition is not an arthritic condition.
Reference:  For additional information on ratings not permissible under Note (1) under 38 CFR 4.71a, DC 5003, see M21-1, Part III, Subpart iv, 4.B.4.d.

III.iv.4.A.2.j.  Definition:  Major Joints

The term major joint means
  • a shoulder
  • an elbow
  • a wrist
  • a hip
  • a knee, or
  • an ankle.
Note:  The use of the terms major and minor joint in 38 CFR 4.45(f) applies solely to the evaluation of joint conditions affected by arthritis as discussed in Spicer v. Shinseki, 752 F.3d 1367 (2014).
Reference:  For more information on major joints, see 38 CFR 4.45(f).

III.iv.4.A.2.k.  Definition:  Minor Joints

The term minor joint means
  • an interphalangeal joint (of the hand or foot)
  • a metacarpal joint (hand)
  • a metatarsal joint (foot)
  • a carpal joint (hand)
  • a tarsal joint (foot)
  • cervical vertebrae
  • dorsal vertebrae
  • lumbar vertebrae
  • the lumbosacral articulation, or
  • a sacroiliac joint.
Note:  The use of the terms major and minor joint in 38 CFR 4.45(f) applies solely to the evaluation of joint conditions affected by arthritis as discussed in Spicer v. Shinseki, 752 F.3d 1367 (2014).
References:  For more information on

III.iv.4.A.2.l.  Definition:  Minor Joint Groups

minor joint group means

  • multiple involvements of the interphalangeal, metacarpal and carpal joints of the same upper extremity, namely, combinations of
    • distal interphalangeal (DIP) joints
    • proximal interphalangeal (PIP) joints
    • metacarpophalangeal (MCP) joints, and/or
    • carpometacarpal (CMC) joints
  • multiple involvements of the interphalangeal, metatarsal and tarsal joints of the same lower extremity, namely, combinations of
    • interphalangeal (IP) joints
    • metatarsophalangeal (MTP) joints, and/or
    • transverse tarsal joints
  • the cervical vertebrae
  • the dorsal (thoracic) vertebrae
  • the lumbar vertebrae or
  • the lumbosacral articulation together with both sacroiliac joints.
Note:  The use of the terms major and minor joint in 38 CFR 4.45(f) applies solely to the evaluation of joint conditions affected by arthritis as discussed in Spicer v. Shinseki, 752 F.3d 1367 (2014).
References:  For more information on

III.iv.4.A.2.m. Importance of Accurate Measurements in Joint Cases

Accurate measurements are very important in joint cases.  VA examinations must measure joint motion with a goniometer.
A number of disability benefits questionnaires (DBQ) relating to joints (Hip and Thigh ConditionsKnee and Lower Leg ConditionsAnkle ConditionsBack (Thoracolumbar Spine) ConditionsNeck (Cervical Spine) ConditionsShoulder and Arm ConditionsElbow and Forearm ConditionsWrist Conditions, and Hand and Finger Conditions) require use of a goniometer.
Important:  There is a presumption that examiners will conduct examinations in line with examination standards.  Accordingly, treat examinations measurements on examinations that require a goniometer as having been taken using the device unless there is clear evidence that a goniometer was not used.  Do not seek clarification of DBQs requiring goniometer use, or return the examination as insufficient, merely because the report does not explicitly refer to goniometer use.
References:  For more information on

III.iv.4.A.2.n. Ankylosis of the Joints

Ankylosis is a condition of, or term used for the sign/symptom of, abnormal stiffness, immobility, or abnormal bending of a joint.  It is a stiffness or immobility in a joint caused by bones fusing as a result of disease or injury or by intentional fusion through surgery.
Favorable ankyloses is fixation of a joint in a neutral position (at zero degrees).
Unfavorable ankyloses is fixation of a joint in flexion or extension that results in significant functional impairment.

3.  Evaluating Musculoskeletal Disabilities of the Arms


Introduction

This topic contains information on evaluating musculoskeletal disabilities of the arms, including

Change Date

April 13, 2018

III.iv.4.A.3.a.  Considering Separate Evaluations for Disabilities of the Shoulder and Arm

Separate evaluations may be given for disabilities of the shoulder and arm under38 CFR 4.71a DCs 5201, 5202, or 5203 if the manifestations represent separate and distinct symptomatology that are neither duplicative nor overlapping.
Reference:  For additional information concerning separate and distinct symptomatology, refer to

III.iv.4.A.3.b.  Example of Separate Evaluations for Disabilities of the Shoulder and Arm

Situation:  A Veteran was involved in an automobile accident that resulted in multiple injuries to the upper extremities.  The Veteran sustained the following injuries
  • a humeral fracture resulting in restriction of arm motion at shoulder level, and
  • a clavicular fracture resulting in malunion of the clavicle.
Result:
Notes:
  • The hyphenated evaluation DC is assigned under 38 CFR 4.71a, DC 5202-5201 because the humerus impairment affects ROM.
  • The separate evaluation for the clavicle disability is warranted because this disability does not affect ROM.
Exception:  Multiple evaluations cannot be assigned under 38 CFR 4.71a, DC 5201 for limited flexion and abduction of the shoulder.
Reference:  For additional information on evaluating shoulder conditions, seeYonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013).

III.iv.4.A.3.c.  Assigning Separate Evaluations for Disabilities of the Elbow, Forearm, and Wrist

Impairments of the elbow, forearm, and wrist will be assigned separate disability evaluations.  The motions of these joints are all viewed as clinically separate and distinct.  Assign separate evaluations for impairment under the following DCs:
Notes:
  • 38 CFR 4.59 may be applied separately to the elbow, the forearm, and the wrist to result in potentially three separate evaluations for painful motion when the evidence otherwise supports such a finding.  However, 38 CFR 4.59 may only be applied once to the elbow and may not be separately applied to both elbow flexion and elbow extension.
  • When examination or other evidence denotes pain present in the joint or periarticular region but does not delineate the specific motions in which pain is present and there is a potential for a separate evaluation under 38 CFR 4.59 as discussed in M21-1, Part III, Subpart iv, 4.A.1, obtain a medical opinion to determine which motions are painful.  When the examiner cannot delineate which motions are associated with pain, resolve doubt in favor of the Veteran and consider painful motion to be present in the separate plane such as to allow assignment of the separate minimum compensable evaluation under 38 CFR 4.59.
Reference:  For additional information on assigning separate evaluations for elbow motion, see M21-1, Part III, Subpart iv. 4.A.2.a.

III.iv.4.A.3.d.  Example of Separate Evaluations for Disabilities of the Elbow, Forearm, and Wrist

Situation:  A Veteran sustained multiple injuries to the right upper extremity in a vehicle rollover accident.  The following impairments are due to the SC injuries:
  • elbow flexion limited to 90 degrees
  • elbow extension limited to 45 degrees
  • full ROM on supination and pronation with painful supination, and
  • full ROM of the wrist with pain on dorsiflexion.
Result:  Assign the following disability evaluations
Explanation:
  • Compensable LOM of elbow flexion and extension is present.  Separate evaluations are warranted for elbow flexion and extension.
  • Motion of the forearm is separate and distinct from elbow motion.  Therefore, a separate evaluation is warranted for painful supination.
  • Motion of the wrist is separate and distinct from forearm motion.  Therefore, a separate evaluation is warranted for painful motion of the wrist.
Note:  If elbow flexion is limited to 100 degrees and elbow extension is limited to 45 degrees, assign a single 20-percent disability evaluation under 38 CFR 4.71a, DC 5208.
References:  For more information on

III.iv.4.A.3.e.  Considering Impairment of Supination and Pronation of the Forearm

When preparing ratings decisions involving impairment of supination and pronation of the forearm, consider the following facts:
  • Full pronation is the position of the hand flat on a table.
  • Full supination is the position of the hand palm up.
  • When examining limitation of pronation, the
    • arc is from full supination to full pronation, and
    • middle of the arc is the position of the hand, palm vertical to the table.
Assign the lowest, 20-percent evaluation when pronation cannot be accomplished through more than the first three-quarters of the arc from full supination.
Do not assign a compensable evaluation for both limitation of pronation and limitation of supination of the same extremity.
Reference:  For more information onconsidering painful motion when assigning multiple LOM evaluations for a joint, see M21-1, Part III, Subpart iv, 4.A.2.c.

4.  Evaluating Musculoskeletal Disabilities of the Hands


Introduction

Change Date
 April 13, 2018

III.iv.4.A.4.a.  Identifying Digits of the Hand

Follow the guidelines listed below to accurately specify the injured digits of the hand.
  • The digits of the hand are identified as
    • thumb
    • index
    • long
    • ring, or
    • little.
  • Do not use numerical designations for either the fingers or the joints of the fingers.
  • Each digit, except the thumb, includes three phalanges
    • the proximal phalanx (closest to the wrist)
    • the middle phalanx, and
    • the distal phalanx (closest to the tip of the finger).
  • The joint between the proximal and middle phalanges is called theproximal interphalangeal or PIP joint.
  • The joint between the middle and distal phalanges is called the distal interphalangeal or DIP joint.
  • The thumb has only two phalanges, the proximal phalanx and the distal phalanx.  Therefore, each thumb has only a single joint, called theinterphalangeal or IP joint.
  • The joints connecting the phalanges in the hands to the metacarpals are the metacarpophalangeal or MCP joints.
  • Designate either right or left for the digits of the hand.
Note:  If the location of the injury is unclear, obtain x-rays to clarify the exact point of injury.
References:  For

III.iv.4.A.4.b.  Anatomy of the Hand

The following image is a reproduction of Plate III following 38 CFR 4.71a, DC 5156.  It illustrates the bones of the hand, as well as the PIP and DIP joints.
Image of plate III of 38 CFR 4.71a, DC 5156

III.iv.4.A.4.c.  Anatomical Position of the Hand and Fingers

The normal anatomical position of the hand (called the position of function of the hand in the rating schedule) and fingers is with the

  • wrist dorsiflexed 20 to 30 degrees
  • MCP and PIP joints flexed to 30 degrees, and
  • thumb abducted and rotated so that the thumb pad faces the finger pads.
Reference:  For more information on the normal anatomical position of the hand and fingers, see note (1) preceding 38 CFR 4.71a, DC 5216.

III.iv.4.A.4.d.  ROM of the Index, Long, Ring, and Little Fingers

For the index, long, ring, and little fingers, zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.
For these digits, the
  • MCP joint has a range of zero to 90 degrees of flexion
  • PIP joint has a range of zero to 100 degrees of flexion, and
  • DIP joint has a range of zero to 70 or 80 degrees of flexion.
Reference:  For more information on the ROM of the index, long, ring, and little fingers, see note (1) preceding 38 CFR 4.71a, DC 5216.

III.iv.4.A.4.e.  Evaluating Amputations of Multiple Fingers

The evaluation levels for amputations of multiple fingers are contained in 38 CFR 4.71a, DC 5126 to 5151.
Consider and apply the following principles as applicable when evaluating amputations of multiple fingers:
  • Amputations other than at the PIP joints or through the proximal phalanges will be rated as ankylosis of the fingers.
    • Amputations at distal joints, or through distal phalanges (other than negligible losses) will be rated as favorable ankylosis of the fingers.
    • Amputation through middle phalanges will be rated as unfavorable ankylosis of the fingers.
  • If there is amputation or resection of metacarpal bones (where more than one-half the bone is lost) in multiple fingers injuries add (not combine) 10 percent to the specified evaluation for the finger amputations subject to the amputation rule (at the forearm level).
  • When an evaluation is assigned under 38 CFR 4.71a, DC 5126 to 5130there will also be entitlement to special monthly compensation.
  • Loss of use of the hand exists when no effective function remains other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance.

III.iv.4.A.4.f.  Evaluating Amputations of Single Fingers

The rating schedule provisions for amputations of single fingers are at 38 CFR 4.71a, DC 5152 to 5156.

III.iv.4.A.4.g.  Evaluating Ankylosis of One or More Fingers

The rating schedule provisions for ankyloses of one or more fingers are at 38 CFR 4.71a, DC 5216 to 5227.
When considering an evaluation for ankylosis of the index, long, ring or little finger, evaluate as:
  • favorable ankylosis if either the MCP or PIP joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible
  • unfavorable ankylosis if
    • either the MCP or PIP joint is ankylosed, and there is a gap ofmore than two inches (5.1 cm.) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, or
    • both the MCP and PIP joints of a digit are ankylosed (even if each joint is individually fixed in a favorable position), or
  • amputation without metacarpal resection at the PIP joint or proximal thereto (38 CFR 4.71a, DC 5153 to 5156) if both the MCP and PIP joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone.
When considering an evaluation for ankylosis of the thumb, evaluate as:
  • favorable ankylosis if either the carpometacarpal or IP joint is ankylosed,and there is a gap of two inches (5.1 cm.) or less between the thumb pad and fingers with the thumb attempting to oppose the fingers
  • unfavorable ankylosis if
    • either the carpometacarpal or IP joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the thumbpad and the fingers, with the thumb attempting to oppose the fingers,or
    • both the capometacarpal and IP joints are ankylosed (even if each joint is individually fixed in a favorable position), or
  • amputation at the carpometacarpal joint or joints or through proximal phalange (38 CFR 4.71a, DC 5152) if both the carpometacarpal and IP joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone.
Note:  Only joints in the position specified in M21-1, Part III, Subpart iv, 4.A.4.cand d are considered in a favorable position.
Reference:  For more information on evaluation of ankylosis of the fingers, see the notes prior to 38 CFR 4.71a, DC 5216.

III.iv.4.A.4.h.  Compensable Evaluations for the Fingers

When considering evaluations for the fingers based on LOM, a compensable evaluation can be assigned for any of the following:

  • LOM of the thumb as specified in 38 CFR 4.71a, DC 5228.
  • LOM of the index or long finger as specified in 38 CFR 4.71a, DC 5229.
  • X-ray evidence of arthritis or other condition rated under the criteria of 38 CFR 4.71a, DC 5003, affecting a group of minor joints of the fingers ofone hand.  There must be
    • noncompensable LOM in more than one of the joints comprising the group of affected minor joints, and
    • findings such as swelling, muscle spasm or satisfactory evidence of painful motion in the affected minor joints of the joint group.
  • X-ray-only evidence of arthritis (where there is no LOM) under the criteria of 38 CFR 4.71a, DC 5003, affecting two or more groups of minor joints – namely the fingers of both hands or a group of minor joints in one hand in combination with another group of minor joints.
  • Painful motion of the thumb, index finger, or long finger as directed atM21-1, Part III, Subpart iv, 4.a.1.p.
Note:  The Federal Circuit held in Spicer v. Shinseki, 752 F.3d 1367 (Fed. Cir. 2014) that when evaluating arthritis of the hand the minor joint group of IP joints of a hand is compensably disabled only when two or more joints in the group are affected by LOM.  Refer to M21-1, Part III, Subpart iv, 4.A.2.j and k for more information on the applicability of the Spicer holding.
References:  For more information on

III.iv.4.A.4.i.  Rating Dupuytren’s Contracture of the Hand

The rating schedule does not specifically list Dupuytren’s contracture as a disease entity; therefore, assign an evaluation on the basis of limitation of finger movement.

5.  Evaluating Musculoskeletal Disabilities of the Spine


Introduction

This topic contains information on evaluating musculoskeletal disabilities of the spine, including

Change Date

February 19, 2019

III.iv.4.A.5.a.  Evaluating Manifestations of Spine Diseases and Injuries

Evaluate diseases and injuries of the spine based on the criteria listed in the 38 CFR 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Under these criteria, evaluate conditions based on chronic orthopedic manifestations (for example, painful muscle spasm or LOM) and any associated neurological manifestations (for example, footdrop, muscle atrophy, or sensory loss) by assigning separate evaluations for the orthopedic and neurological manifestations.
Evaluate intervertebral disc syndrome (IVDS) under 38 CFR 4.71a, DC 5243, either based on the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episode Formula), whichever formula results in the higher evaluation when all disabilities are combined under 38 CFR 4.25.
Variations of diagnostic terminology exist for IVDS.  When used in the clinical setting, the following terminology is consistent with the general designation of IVDS:
  • slipped or herniated disc
  • ruptured disc
  • prolapsed disc
  • bulging or protruded disc
  • degenerative disc disease (DDD)
  • sciatica
  • discogenic pain syndrome
  • herniated nucleus pulposus, and
  • pinched nerve.

Notes:

  • When an SC thoracolumbar disability is present and objective neurological abnormalities or radiculopathy are diagnosed but the medical evidence does not identify a specific nerve root, rate the lower extremity radiculopathy under the sciatic nerve, 38 CFR 4.124a, DC 8520.
  • If an evaluation is assigned based on incapacitating episodes, a separate evaluation may not be assigned for LOM, radiculopathy, or any other associated objective neurological abnormality as it would constitute pyramiding.
  • Spinal fusion is a type of fixation of the spine.  Evaluation based on ankylosis of the spine due to fusion is only warranted when the fixation affects the entire thoracolumbar or cervical spine segment.  Fusion of only a portion of the cervical or thoracolumbar spine segment should be evaluated based on range or motion or IVDS as warranted by the evidence.
  • There is no presumption of SC for DDD.  Desiccation of the disc or other degenerative changes without any radiographic evidence of arthritic changes is not indicative of arthritis and is not, consequently, subject to presumptive SC under 38 CFR 3.309(a).
Important:
  • Because spinal disease can cause objective neurological abnormalities, onset of a neurological complication represents medical progression or worsening of the spinal disease.  For that reason and because neurological complications of spinal disease are contemplated in the evaluation criteria for spinal conditions under 38 CFR 4.71a, a claim asserting new complications of spinal disease is a claim for increase rather than a claim for secondary SC.  Therefore, when assigning effective dates for new neurological spinal complications, consider effective date provisions specifically for increases.  The intention is to treat spinal complications cases in a way that is consistent with the handling of diabetes complications as set forth in M21-1, Part III, Subpart iv, 4.M.1 and 2.
  • Apply the previous provisions of 38 CFR 3.157 (b) (prior to March 24, 2015) when determining the effective date for neurological abnormalities of the spine that are identified by requisite records prior to March 24, 2015.

Example:  Veteran has been SC for DDD since 2012.  Upon review of a claim for increase received on June 2, 2015, it is noted in VA medical records that the Veteran received treatment for bladder impairment secondary to DDD on July 7, 2014.  Because the VA medical records constitute a claim for increase under rules in effect prior to March 24, 2015, it is permissible to apply previous rules from38 CFR 3.157 (b) in adjudicating the bladder impairment issue.

References:  For more information on

III.iv.4.A.5.b.  Definition:  Incapacitating Episode of IVDS

By definition, an incapacitating episode of IVDS requires bedrest prescribed by a physician.
In order to evaluate IVDS based on incapacitating episodes, there must be evidence the associated symptoms required bedrest as prescribed by a physician.  The medical evidence of prescribed bedrest must be
  • of record in the claims folder, or
  • reviewed and described by an examiner completing a DBQ.
Note:  If the records do not adequately document prescribed bedrest, use the General Rating Formula to evaluate IVDS and advise the Veteran to submit medical evidence documenting the periods of incapacitating episodes requiring bedrest prescribed by a physician.

III.iv.4.A.5.c.  Example of Evaluating IVDS

Situation:  A Veteran’s IVDS is being evaluated.
  • LOM warrants a 20-percent evaluation based under the general rating formula
  • mild radiculopathy of the left lower extremity warrants a 10-percent  evaluation as a neurological complication, and
  • medical evidence shows incapacitating episodes requiring bedrest prescribed by a physician of four weeks duration over the past 12 months which would result in a 40-percent evaluation based on the incapacitating episode formula.
Result:  Assign a 40-percent evaluation based on incapacitating episodes.
Explanation:
  • Evaluating IVDS using incapacitating episodes results in the highest evaluation.
  • Since incapacitating episodes are used to evaluate IVDS, the associated LOM and neurological signs and symptoms will not be assigned a separate evaluation.
References:  For additional information on

III.iv.4.A.5.d.  Evaluating Ankylosing Spondylitis

Ankylosing spondylitis may be evaluated as an active disease process or based upon LOM of the spine.
The table below describes appropriate action for evaluating ankylosing spondylitis.
If ankylosing spondylitis is …
Then …
an active process
evaluate under 38 CFR 4.71a, DC 5009(using the criteria in 38 CFR 4.71a, DC 5002).
inactive
  • evaluate under 38 CFR 4.71a, DC 5240 based on chronic residuals affecting the spine, and
  • separately evaluate other affected joints or body systems under the appropriate DC.

6.  Evaluating Musculoskeletal Disabilities of the Legs


Introduction

Change Date
February 19, 2019

III.iv.4.A.6.a.  Evaluations for Knee Replacement

Total knee replacements are evaluated under 38 CFR 4.71a, DC 5055.
For guidance on rating action for claims involving partial knee replacement see the table below.
If a claim for evaluation of a partial knee replacement was …
Then …
filed and decided on or after July 16, 2015
do not assign an evaluation under 38 CFR 4.71a, DC 5055.
Explanation:  Effective July 16, 2015,38 CFR 4.71a was revised to clarify in a note that the provisions of 38 CFR 4.71a, DC 5055 apply only to total knee replacement.
  • filed before July 16, 2015, and
  • pending (not finally adjudicated under 38 CFR 3.160(d)(1)) on that date
the case must be evaluated under 38 CFR 4.71a, DC 5055 if this would be more favorable than another applicable DC.
Explanation:  This result is required by
  • filed before July 16, 2015, and
  • finally adjudicated under 38 CFR 3.160(d)(1) before that date
do not revise the decision as clearly and unmistakably erroneous whether it
Explanation:  The regulation action effective July 16, 2015, explained that VA’s long standing policy was that partial knee replacements could not be evaluated under 38 CFR 4.71a, DC 5055.  However, the Court in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016) found that prior to the revision the regulation was ambiguous as to whether it covered partial knee replacements and they noted conflicting decisions had been issued.
References:  For more information on

III.iv.4.A.6.b.  Evaluating Noncompensable Knee Conditions

Evaluate a noncompensable knee condition by analogy to 38 CFR 4.71a, DC 5257if
References:  For more information on

III.iv.4.A.6.c.  Definitions:  Lateral Instability and Subluxation of the Knee

Lateral instability, as referred to in 38 CFR 4.71a, DC 5257 includes evaluations based on posterior or anterior instability.
Note:  Medial instability is a direction of lateral instability, and when present due to SC knee injury, should be evaluated under 38 CFR 4.71a, DC 5257.

Subluxation refers to partial or incomplete dislocation of the knee joint (tibiofemoral dislocation/subluxation) or tendency for the patella to dislocate from its track (patellar dislocation/subluxation).

Evaluate either condition using 38 CFR 4.71a, DC 5257.  However, note the diagnostic criteria primarily contemplate patellar subluxation.  True knee joint subluxation and patellar subluxation are much different conditions.  Patellar subluxation is common and may be mild, moderate or severe.  True chronic joint subluxation is very rare and, when present, can be expected to be severe or even tantamount to loss of use.

III.iv.4.A.6.d.  Handling Joint Stability Findings

Apply the findings from joint stability testing reported by an examiner on the Knee and Lower Leg Conditions Disability Benefits Questionnaire as follows when evaluating recurrent subluxation or lateral instability under 38 CFR 4.71a, DC 5257.
DBQ Finding
Correlated Level of Impairment
1+ (0-5 millimeters)
slight
2+ (5-10 millimeters)
moderate
3+ (10-15 millimeters)
severe

III.iv.4.A.6.e.  Separate Evaluations for Knee Instability and LOM

A separate evaluation for knee instability may be assigned in addition to any evaluation(s) assigned based on limitation of knee motion.  OGC has issued Precedent Opinions that an evaluation under 38 CFR 4.71a, DC 5257, does not pyramid with evaluations based on LOM.
Exception:  Do not rate instability separately from a total knee replacement.
  • The 30-percent and 100-percent evaluations under 38 CFR 4.71a, DC 5055, are minimum and maximum evaluations and, as such, encompass all identifiable residuals post knee replacement – including LOM, instability, and functional impairment.
  • The intermediate evaluations, including the 60-percent criteria under 38 CFR 4.71a, DC 5055 as well as the alternative evaluations available under the designated DCs at 38 CFR 4.71a, DC 5256, 5261, or 5262, also contemplate the residuals of post-knee replacement including but not limited to instability.
  • Post arthroplasty, there may be instability with weakness (giving way) and pain.
  • Note that the only way to obtain an evaluation in excess of 30-percent under 38 CFR 4.71a, DC 5262 (one of the specified bases for an intermediate evaluation under 38 CFR 4.71a, DC 5055) is if there is nonunion with loose motion and need for a brace.  This clearly suggests instability is incorporated in the intermediate criteria.
Important:  The rating activity should pay close attention to the combined evaluation of the knee disability prior to replacement surgery and to follow all required due process and protected evaluation procedures.
References:  For more information on

III.iv.4.A.6.f.  Separate Evaluation of Meniscal Disabilities

Evaluation of a knee disability under 38 CFR 4.71a, DC 5257, DC 5260, or 5261does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under
A meniscal disability may be rated separately under 38 CFR 4.71a, DC 5258/5259 apart from
Important:
  • A repaired meniscal tear (s/p partial meniscectomy) is not directly synonymous with either 38 CFR 4.71a, DC 5258 or 38 CFR 4.71a, DC 5259.  Therefore, it is most appropriate to rate the disability analogous to whichever code most closely approximates the current symptoms.
  • Entitlement to a separate evaluation for the meniscal disability depends on whether the manifestations are utilized to assign an evaluation under a different DC.  Evaluation of the same manifestation under multiple diagnoses is prohibited under 38 CFR 4.14.  Thus, when all the symptoms of the meniscal disability are used to support elevation of an evaluation under 38 CFR 4.71a, DC 5260/5261 or assignment of an evaluation under38 CFR 4.71a, DC 5257, a separate evaluation cannot be assigned under38 CFR 4.71a, DC 5258/5259.
  • The policy and procedures identified in this block reflect a change in policy resulting from the holding in  Lyles v. Shulkin, 29 Vet.App. 107 (2017), effective November 29, 2017.  Prior to the Lyles holding, separate evaluations for meniscal disabilities under 38 CFR 4.71a, DC 5258 or DC 5259 and other knee evaluations under 38 CFR 4.71a, DC 5257, 5260, or DC 5261 were prohibited.  This is not considered a liberalizing change.
References:  For more information on

III.iv.4.A.6.g.  Examples– Evaluating Meniscal Disabilities

Example 1:  A Veteran’s left knee disability, which includes a meniscal condition, is evaluated as 30-percent disabling on the basis of limitation of extension under 38 CFR 4.71a, DC 5261.  The knee also manifests pain, swelling, popping, locking, and grinding due to the meniscus disability.  These symptoms, which are consistent with the manifestations identified under 38 CFR 4.40 and 38 CFR 4.45, were considered and did not result in a higher evaluation under 38 CFR 4.71a, DC 5261.  Therefore, they may be considered for assignment of a separate evaluation under 38 CFR 4.71a, DC 5258/5259.
Example 2:  The evaluations and fact pattern for Example 1 are the same exceptthat the VA examiner indicates that the pain, swelling, popping, locking, and grinding of the knee, which results from the meniscal disability, result in additional limitation of extension to 30 degrees during flare-ups or with repeated use over a period of time, which warrants an elevation of the rating to 40-percent under 38 CFR 4.71a, DC 5261.  A separate evaluation under 38 CFR 4.71a, DC 5258/5259is not warranted for the symptoms of pain, swelling, popping, locking, and grinding since these symptoms were considered under 38 CFR 4.40 and 38 CFR 4.45 in accordance with the DeLuca holding to elevate the evaluation to 40-percent under38 CFR 4.71a, DC 5261.  Assignment of a separate evaluation under 38 CFR 4.71a, DC 5258/5259 would constitute pyramiding.
Example 3:  A Veteran’s left knee disability, which includes the meniscus, is evaluated as 30-percent disabling on the basis of limitation of extension under 38 CFR 4.71a, DC 5261.  Pain is present due to the meniscus disability.  A VA examiner indicated that pain during repetitive motion testing as well as functional loss due to pain during flare-ups additionally limit extension to 30 degrees, which results in elevation of the 30-percent evaluation under 38 CFR 4.71a, DC 5261 to 40-percent.  A separate evaluation under 38 CFR 4.71a, DC 5258/5259 is not warranted for the symptoms of pain since it was considered under 38 CFR 4.40and 38 CFR 4.45 in accordance with the DeLuca holding to elevate the evaluation to 40-percent under 38 CFR 4.71a, DC 5261.  Assignment of a separate evaluation under 38 CFR 4.71a, DC 5258/5259 would constitute pyramiding.
Example 4:  A Veteran’s right knee disability is evaluated as 20-percent disabling on the basis of limitation of extension.  This disability includes arthritis of the joint and a post-operative meniscal condition.  The knee also manifests pain, swelling, popping, locking, and grinding due to both arthritis and the meniscal condition.  A VA examiner found that repetitive motion testing additionally limited extension by five degrees, from 15 to 20 degrees, due to pain.  The consideration of pain on motion, which is a manifestation identified under 38 CFR 4.40 and 38 CFR 4.45, results in elevation of the evaluation under 38 CFR 4.71a, DC 5261 to 30-percent.  Since the swelling, popping, locking, and grinding, which were at least in part due to the meniscal condition, were not considered in awarding a higher evaluation under 38 CFR 4.71a, DC 5261 with application of 38 CFR 4.40 and 38 CFR 4.45, a separate evaluation may be awarded for the meniscus removal.
Example 5:  Examination of the left knee disability reveals 2+ medial laxity and a history of meniscectomy with residual symptoms of stiffness, crepitus, and pain without effusion or locking.  ROM is full with no additional functional impairment following repeated ROM testing.  Since the stiffness, crepitus, and pain are separate symptoms and not used to support an evaluation under 38 CFR 4.71a, DC 5257/5260/5261 and the laxity is not used to support an evaluation for the meniscal symptoms, a 20-percent evaluation is warranted under 38 CFR 4.71a, DC 5257 with a separate 10-percent evaluation assigned under 38 CFR 4.71a, DC 5259.

III.iv.4.A.6.h. Evaluation Builder Workaround for Meniscal Disabilities

Until the Evaluation Builder can be updated to reflect the policy and procedural changes effected by the holding in Lyles v. Shulkin, 29 Vet.App. 107 (2017), decision makers are responsible for ensuring that proper disability evaluations are assigned for knee disabilities involving meniscal impairment.
The workaround provided below will assist decision makers in properly evaluating meniscal disabilities.
Step
Action
1
Analyze the medical evidence to determine whether symptoms of the meniscal disability exist and are not used to support an evaluation assigned under 38 CFR 4.71a, DC 5257/5260/5261.  If symptoms of the meniscal disability exist and
  • are not used to support an evaluation under 38 CFR 4.71a, DC 5257/5260/5261, proceed to Step 2, or
  • are used to support an evaluation under 38 CFR 4.71a, DC 5257/5260/5261, enter all knee symptoms as a single decision point in the Evaluation Builder, as usual.  No further special action is needed since a separate meniscal evaluation is not warranted.
2
The symptoms supporting the evaluation under 38 CFR 4.71a, DC 5258/5259 for the meniscal disability must be entered into the Evaluation Builder as a separate decision point from the remainder of the knee symptoms that are used to support the evaluation under 38 CFR 4.71a, DC 5257/5260/5261.
Important:  Symptoms used to support an evaluation (including elevation of an evaluation under 38 CFR 4.40 and 38 CFR 4.45 in accordance with the DeLuca holding) under 38 CFR 4.71a, DC 5257/5260/5261 cannot be used to also support an evaluation under38 CFR 4.71a, DC 5258/5259.
3
Override the pyramiding conflict that is generated due to the assignment of separate evaluations under 38 CFR 4.71a, DC 5260/5261 and 38 CFR 4.71a, DC 5258/5259.  In the justification field for the override, annotate that separate evaluations are warranted per the Lyles decision.

III.iv.4.A.6.i.  Separate Evaluations – Genu Recurvatum

When evaluating genu recurvatum, which involves hyperextension of the knee beyond zero degrees of extension, under 38 CFR 4.71a, DC 5263
  • do not also evaluate separately under 38 CFR 4.71a, DC 5261, but
  • do evaluate separately under other evaluations if manifestations that are not overlapping, such as limitation of flexion under 38 CFR 4.71a, DC 5260, are attributed to genu recurvatum, and
  • do not evaluate separately under 38 CFR 4.71a, DC 5257; however, if instability is manifested from genu recurvatum at the “moderate” or “severe” level, evaluate under 38 CFR 4.71a, DC 5263-5257.

III.iv.4.A.6.j.  Evaluating Shin Splints

Evaluate shin splints analogously with 38 CFR 4.71a, DC 5262.  The table below explains the process and necessary considerations for evaluating shin splints.
Step
Action
1
Is a chronic disability present?
  • If yes, go to Step 2.
  • If no, deny SC.
2
  • Determine whether the shin splint disability affects the right, left, or bilateral extremity(ies).
  • Go to Step 3.
3
  • Determine whether shin splints affect the knee or the ankle.
  • Go to Step 4.
4
Has SC been established for a knee or ankle joint condition affecting the same joint as the shin splints?
  • If yes,
    • grant SC for the shin splints
    • assign a single evaluation for the symptoms of the shin splint condition with the symptoms caused by the other SC knee or ankle joint condition, and
    • evaluate the predominant symptoms under the most favorable DC(s) for that joint.
      • If the shin splints are the predominant disability, go to Step 5.
      • If the other SC disability of the knee or ankle joint is the predominant disability, evaluate under the criteria for the other SC disability and go to Step 6.
  • If no,
Note:  For all awards of SC for shin splints, in the DIAGNOSIS field in VBMS-R indicate
  • which side (right or left) is affected, and
  • whether there is knee or ankle involvement.
Example:  shin splints, right lower extremity, with ankle impairment.
5
  • Access the Musculoskeletal – Other calculator within VBMS-R.
  • Choose SHIN SPLINTS from diagnosis drop down.
  • Go to Step 6.
6
  • Utilize information from the DBQ and/or other medical evidence of record to determine whether the associated knee or ankle symptoms are mild, moderate, or severe, and
  • choose the corresponding level of symptoms.
Notes:
  • The term “shin splints” is synonymous with the term “medial tibial stress syndrome.”  You may also see the related assessments “compartment syndrome” and/or “stress fractures” in treatment records.  Rate any of those diagnoses using the guidance in this block.
  • Both the Knee and Lower Leg Conditions Disability Benefits Questionnaire and the Ankle Disability Benefits Questionnaire elicit workup of shin splints and stress fractures.  Each asks whether the knee or ankle is predominantly affected and asks the examiner to use the alternate DBQ as appropriate.
 References:  For more information on

III.iv.4.A.6.k. Example 1 – Evaluating Shin Splints

Situation: The original claim is for SC for left leg shin splints. Records show complaints of shin pain in both legs starting during the period of active duty but on discharge only left tibia pain was reported.  A bone scan from close to discharge was negative.  X-rays were negative.  The diagnosis was recurrent mild left leg shin splints.
VA examination using the Knee and Lower Leg Conditions Disability Benefits Questionnaire showed that the Veteran reported a history of left mid tibia pain. She reported that in connection with the shin pain she had developed some left knee pain on use – usually with protracted walking on hard surfaces wearing boots.  X-rays of the shin and knee were normal.  The left tibia was slightly tender to palpation.  There was slightly painful left knee flexion at the end point. The assessment was left leg shin splints.  The examiner characterized the condition as mild.
Result:  Referring to the table in M21-1, Part III, Subpart iv, 4.A.6.j, grant SC. Use38 CFR 4.71a, DC 5299-5262.  The description should be “shin splints, left lower extremity, with knee impairment.”  Assign a 10-percent evaluation for a mild condition.

III.iv.4.A.6.l. Example 2 – Evaluating Shin Splints

Situation: SC has been previously established for left ankle arthritis. A 10-percent evaluation was assigned for x-ray evidence of arthritis of the joint with painful motion.  The current claim is for “ankle/left shin splints.”
With regard to the tibia, records show complaints of left tibia pain with running during service.  A bone scan in service treatment records showed minor stress fractures of the tibia.  Initial assessments in service records were shin splints and left tibia stress fracture.  Follow-up imaging showed that the stress fractures were healed.  The discharge exam noted a history of left tibia stress fracture.  The Veteran reported continued minor shin pain.  The assessment was shin splints.
VA examination using the Knee and Lower Leg Conditions Disability Benefits Questionnaire showed that the Veteran reported a history of continued but worsened left middle to lower tibia pain since service.  She said she continued to have left ankle pain on use as well as periodic twinges of pain in the left knee.  X-rays of the tibia and knee were normal.  X-rays of the ankle showed the SC left ankle arthritis. The tibia was moderately to significantly tender to palpation.  There was pain with slight LOM of the left ankle.  There was no LOM of the left knee or painful motion.  The assessment was left leg shin splints with ankle and occasional knee pain, as well as left ankle arthritis.  The examination found that the left ankle was more disabled than the knee. The shin splints were characterized as moderate.
Result:  Referring to the table in M21-1, Part III, Subpart iv, 4.A.6.j, grant SC for shin splints.  Assign a single evaluation for the symptoms of the shin splints with the symptoms caused by the SC ankle arthritis and evaluate the predominant symptoms at 20 percent using 38 CFR 4.71a, DC 5299-5262.  This would be the most favorable rating.  Arthritis of the ankle joint with painful motion of the ankle would be rated only at 10 percent but shin splints with moderate ankle disability can be rated at 20 percent using the 38 CFR 4.71a, DC 5262 criteria.  Change the description to “shin splints, left lower extremity, with ankle arthritis.”

III.iv.4.A.6.m.   Moderate and Marked LOM of the Ankle

Consider the following when evaluating LOM of the ankle under 38 CFR 4.71a, DC 5271:
  • An example of moderate limitation of ankle motion is
    • less than 15 degrees dorsiflexion or
    • less than 30 degrees plantar flexion.
  • An example of marked LOM is
    • less than five degrees dorsiflexion or
    • less than 10 degrees plantar flexion.

III.iv.4.A.6.n.  Considering Ankle Instability

Do not assign separate evaluations for LOM and instability of the ankle.
DCs for the ankle, including 38 CFR 4.71a, DC 5271 and 38 CFR 4.71a, DC 5262, include broad language that does not explicitly include consideration of any particular ankle symptomatology.

7.  Evaluating Musculoskeletal Disabilities of the Feet


Introduction

Change Date
February 19, 2019

III.iv.4.A.7.aSelecting a DC for Foot Disabilities

Foot injuries are rated under 38 CFR 4.71a, DC 5284.  The application of this DC is limited to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions.  However, conditions that are not specifically listed under 38 CFR 4.71a, DC 5284 may be rated by analogy under DC 5284.
38 CFR 4.71a, DC 5284 does not apply to the other eight conditions of the foot specifically listed under 38 CFR 4.71a, DCs 5276 through 5283.  The listed conditions must be rated under the specified DCs and cannot be rated by analogy under 38 CFR 4.71a, DC 5284.
In cases where a foot injury and either arthritis or another foot disability is involved
  • consider functional impairment, and
  • determine whether, depending on the nature of the disability and history of injury, it is more advantageous to evaluate the condition under 38 CFR 4.71a, DC 5284 or another DC.
Reminder:  Consider the guidance in M21-1, Part III, Subpart iv, 6.E.4.bconcerning applicability of the bilateral factor when a DC provides one evaluation for a bilateral condition.
References:  For more information on

III.iv.4.A.7.b.  Identifying the Digits of the Foot

Follow the guidelines listed below to accurately specify the injured digits of the foot.
  • Refer to the digits of the foot as
    • first or great toe
    • second
    • third
    • fourth, or
    • fifth.
  • Each digit, except the great toe, includes three phalanges
    • the proximal phalanx (closest to the ankle)
    • the middle phalanx, and
    • the distal phalanx (closest to the tip of the toe).
  • The joint between the proximal and middle phalanges is called theproximal  interphalangeal (PIP) joint.
  • The joint between the middle and distal phalanges is called the distal interphalangeal (DIP) joint.
  • The great toes each have only two phalanges, the proximal phalanx and the distal phalanx.  Therefore, each great toe has only a single joint, called the interphalangeal (IP) joint.
  • The joints connecting the phalanges in the feet to the metatarsals are themetatarsophalangeal (MTP) joints.
  • Designate either right or left for the digits of the foot.
Note:  If the location of the injury is unclear, obtain x-rays to clarify the exact point of injury.

III.iv.4.A.7.c.  Assigning Separate Evaluations for Multiple Foot Disabilities

38 CFR 4.14 requires that the evaluation of the same disability and/or the same manifestation under various diagnoses is to be avoided.
The compact anatomical structure of the foot as well as the inter-related physiological functioning may make it difficult to differentiate the etiology of certain disability symptoms.  When multiple SC foot disabilities are present but the etiology of the symptoms cannot be separated, assign a single disability evaluation for the predominant symptoms.
If, however, the etiology of the symptoms can be delineated, separate disability evaluations may be assigned under multiple DCs for foot disabilities provided that the principles of 38 CFR 4.14 have not been violated.
Reference:  For more information on evaluating SC and non-service-connected (NSC) symptoms that cannot be separated, see M21-1, Part III, Subpart iv, 5.B.2.c.

III.iv.4.A.7.d.  Evaluating Arthritis of the Minor Joints of the Toes

For guidance on evaluating arthritis of a group of minor joints of the toes refer to the table below.
If arthritis …
Then …
  • affects a group of minor joints in one foot
  • is documented by x-ray evidence
  • results in LOM, and
  • is confirmed by satisfactory evidence of painful motion, pain on use or other findings such as swelling
assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003.
  • affects minor joint groups inboth feet, and
  • is documented by x-ray evidence, but
  • does not result in LOM
assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003.
Exception:  Assign a 20-percent evaluation if there are occasional incapacitating exacerbations).
References:  For more information on

III.iv.4.A.7.e.Evaluating Plantar Fasciitis

Evaluate plantar fasciitis analogous to pes planus, 38 CFR 4.71a, DC 5276.
The most common symptom seen with plantar fasciitis is heel pain.  The following considerations apply when evaluating the heel pain.
  • Heel pain is consistent with the criteria for a moderate disability under 38 CFR 4.71a, DC 5276 based on pain on manipulation and use of the feet.
  • Moderate disability under 38 CFR 4.71a, DC 5276 warrants assignment of a 10-percent evaluation for heel pain without application of 38 CFR 4.59.
  • When painful motion with joint or periarticular pathology is present and is a symptom of the plantar fasciitis, 38 CFR 4.59 is applicable.  However, as previously noted, a 10-percent evaluation would most often be warranted under 38 CFR 4.71a, DC 5276 without consideration of 38 CFR 4.59.
Note:  When SC is established for pes planus and plantar fasciitis, evaluate the symptoms of both conditions together under 38 CFR 4.71a, DC 5276.
Reference:  For more information on rating by analogy, see

III.iv.4.A.7.f.  Definition of Metatarsalgia or Morton’s Disease

Metatarsalgia means pain in the forefoot – under the metatarsal heads.
Morton’s Disease or Morton’s Neuroma refers to a painful lesion of a plantar interdigital nerve.

III.iv.4.A.7.g.  Evaluating Metatarsalgia or Morton’s Disease

Anterior metatarsalgia of any type, to include cases due to Morton’s Disease, will be evaluated under 38 CFR 4.71a, DC 5279.
The DC provides for an evaluation of 10 percent regardless of whether the condition is unilateral or bilateral.

III.iv.4.A.7.h.  Pyramiding of Metatarsalgia and Either Plantar Fasciitis or Pes Planus

Do not assign separate evaluations for metatarsalgia and plantar fasciitis or pes planus.  The evaluation criteria are similar enough that providing separate evaluations will compensate the same facet of disability, violating the prohibition against pyramiding in 38 CFR 4.14.
A 10-percent evaluation under 38 CFR 4.71a, DC 5279 is assigned solely for having pain under the metatarsal heads which would necessarily mean pain with manipulation and use.
The criteria for pes planus or plantar fasciitis for a 10-percent evaluation in 38 CFR 4.71a, DC 5276 include “pain on manipulation and use of the feet, unilateral or bilateral.”  The criteria for higher evaluations including findings such as accentuated pain on manipulation and use or extreme tenderness of the “plantar surfaces of the feet.”
Combine the evaluations under 38 CFR 4.71a, DC 5276.  Do not rate by analogy when there is an applicable DC.  However if one or both conditions resulted from an injury to the foot, you may also assign an evaluation for the combined conditions under 38 CFR 4.71a, DC 5284.

8.  Miscellaneous Musculoskeletal Considerations


Introduction

This topic contains general guidance on evaluating musculoskeletal conditions, including


Change Date

April 13, 2018

III.iv.4.A.8.a.  SC for Fractures

Decision makers must not automatically award SC for fracture or fracture residuals based on a mere service treatment record (STR) reference to a fracture.

  • Where SC of a fracture or fracture residuals is claimed, SC will be established when sufficient evidence, such as x-rays, a surgical report, casting, or a physical evaluation board report, documents the fracture.
  • If SC of a fracture has not been claimed and objective evidence such as x-ray report documents an in-service fracture, invite a claim for SC for the fracture.

The following considerations apply when granting SC for a fracture:

  • SC will be established for a healed fracture even without current residual limited motion or functional impairment of a joint.
  • Assign a DC consistent with the location of the fracture.  The fracture will be rated as noncompensable in the absence of any disabling manifestations.

Reference:  For more information about unclaimed chronic disabilities found in STRs, see M21-1, Part IV, Subpart ii, 2.A.1.


III.iv.4.A.8.b.  SC for Osteopenia

Osteopenia is clinically defined as mild bone density loss that is often associated with the normal aging process.  Low bone density does not necessarily mean that an individual is losing bone, as this may be a normal variant.
Osteopenia is comparable to a laboratory finding which is not subject to SC compensation.
Use the table below to determine the appropriate action to take when SC for osteopenia has been granted.
If … Then …
SC for osteopenia was granted by rating decision dated prior toDecember 19, 2013 (the date on which guidance was issued to clarify the proper procedures for considering SC for osteopenia)
  • do not sever SC, as it was properly established based on guidance available at the time the decision was made,
  • do not reduce the previously assigned evaluation unless the condition has improved, and
  • consider claims for increased evaluation and schedule examination as warranted based on the facts of the case.

Note:  Provisions of 38 CFR 3.951 and 38 CFR 3.957 regarding protection of SC remain applicable.

SC for osteopenia was granted by rating decision dated on or afterDecember 19, 2013 propose to sever SC based on a finding of clear and unmistakable error.
Note:  Osteoporosis, in contrast to osteopenia, is considered a disease entity characterized by severe bone loss that may interfere with mechanical support, structure, and function of the bone. SC for osteoporosis under 38 CFR 4.71a, DC 5013 is warranted when the requirements are otherwise met.

III.iv.4.A.8.c.  Evaluating Fibromyalgia

The criteria for evaluation of fibromyalgia under 38 CFR 4.71a, DC 5025 does not exclude assignment of separate evaluations when disabilities are diagnosed secondary to fibromyalgia.  This includes, but is not limited to, disability diagnoses for which symptoms are included in the evaluation criteria under 38 CFR 4.71a, DC 5025, such as

  • depression
  • anxiety
  • headache, and
  • irritable bowel syndrome.

Notes:

  • If signs and symptoms are not sufficient to warrant a diagnosis of a separate condition, then they are evaluated with the musculoskeletal pain and tender points under 38 CFR 4.71a, DC 5025.
  • The same signs and symptoms cannot be used to assign separate evaluations under different DCs, per 38 CFR 4.14.

Reference:  For more information on evaluating chronic pain syndrome (somatic symptom disorder), see M21-1, Part III, Subpart iv, 4.O.1.j.


III.iv.4.A.8.d.  Considering Conflicting Decisions Regarding LOU of an Extremity

Forward the claims folder to the Director, Compensation Service (211B), for an advisory opinion under M21-1, Part III, Subpart vi, 1.A.2.a to resolve a conflict if

  • the Insurance Center determines LOU of two extremities prior to rating consideration involving the same issue, and
  • the determination conflicts with the proposed rating decision.

Note:  This issue will generally be brought to the attention of the rating activity as a result of the type of personal injury, correspondence, or some indication in the claims folder that the insurance activity is involved.


III.iv.4.A.8.e.  Applying the Amputation Rule

The combined evaluation for disabilities of an extremity shall not exceed the evaluation for the amputation at the elective level, were amputation to be performed.  The amputation rule is included in the musculoskeletal section of the rating schedule and, consequently, applies only to musculoskeletal disabilities and not to disabilities affecting other body systems.

Notes:

  • Any peripheral nerve injury associated with the musculoskeletal injury will be considered when applying the amputation rule.
  • Actual amputation with associated painful neuroma will be evaluated at the next-higher site of elective reamputation.
  • The amputation rule does not apply to evaluations of peripheral nerve disabilities of the extremities including, but not limited to, diabetic neuropathy, radiculopathy/sciatica due to a spinal disorder, or peripheral nerve injuries of non-musculoskeletal etiology.
  • The amputation rule does not apply to bilateral evaluations under 38 CFR 4.71a, DCs 5276 to 5279 except when being compared to a bilateral lower extremity amputation.
References:  For more information on the

III.iv.4.A.8.f.  NSC Amputation Eliminating a Distal SC Disability

For guidance on disability evaluation considerations when an NSC disability results in amputation that eliminates a distal SC disability, see M21-1, Part III, Subpart iv, 5.B.3.e.

III.iv.4.A.8.g.  Recognizing Variations in Musculoskeletal Development and Appearance

Individuals vary greatly in their musculoskeletal development and appearance.  Functional variations are often seen and can be attributed to
  • the type of individual, and
  • his/her inherited or congenital variations from the normal.

III.iv.4.A.8.h.  Considering Notable Congenital or Developmental Defects

Give careful attention to congenital or developmental defects such as
  • absence of parts
  • subluxation (partial dislocation of a joint)
  • deformity or exostosis (bony overgrowth) of parts, and/or
  • accessory or supernumerary (in excess of the normal number) parts.
Note congenital defects of the spine, especially
  • spondylolysis
  • spina bifida
  • unstable or exaggerated lumbosacral joints or angle, or
  • incomplete sacralization.
Notes:
  • Do not automatically classify spondylolisthesis as a congenital condition, although it is commonly associated with a congenital defect.
  • Do not automatically classify joint subluxation as a developmental or congenital condition.
  • Do not overlook congenital diastasis of the rectus abdominus, hernia of the diaphragm, and the various myotonias.
References:  For more information on
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