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Tag: Flareups

Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011); For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995));

Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011); For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995));

by The Editor
July 15, 2022
0

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-6885BILLY MOSLEY, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before TOTH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this ...

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

by The Editor
November 7, 2021
0

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, ...

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

by The Editor
October 19, 2021
0

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during ...

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

by The Editor
October 18, 2021
0

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which ...

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