Jeffrey T. Petitti v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 1447
| Vet. App. | 2015Background
- Veteran Jeffrey T. Petitti (Air Force) developed seronegative rheumatoid arthritis (RA) during service; initially rated 20% (1995) and later increased to 40% (effective Oct 11, 2011).
- Medical records and lay affidavits describe daily painful joints, morning stiffness, periodic flares, synovitis, decreased stamina and functional limitations; VA examiners found full range of motion but noted painful joints and objective findings (synovitis, tenderness, gelling).
- Board denied ratings above 40% and declined to award separate minimum (10%) compensable ratings per joint under DC 5002 read with 38 C.F.R. § 4.59, reasoning no objective evidence of painful motion on ROM testing.
- Core legal question referred to the panel: whether DC 5002 and § 4.59 authorize compensable minimum ratings for painful motion absent actual ROM limitation and what evidence suffices to establish "painful motion."
- Court framed the issue as one of regulatory interpretation and examined the interplay of DC 5002 and § 4.59, relevant prior decisions, and what constitutes "objective confirmation" of painful motion.
Issues
| Issue | Petitti's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether § 4.59 and DC 5002 authorize minimum compensable (10%) joint ratings for painful motion absent actual ROM limitation | § 4.59 and DC 5002 together permit minimum ratings for painful motion; the Board must consider all lay and medical evidence of pain | § 4.59 does not create a standalone basis; painful motion can trigger minimum ratings but requires objective evidence (limited to examiner findings) | Held: Read together, § 4.59 and DC 5002 allow minimum joint ratings for "painful motion" even without actual ROM limitation (Lichtenfels principle applies) |
| What evidence is required to "objectively confirm" painful motion under DC 5002 | Board must consider lay and medical evidence, including veteran and other lay observations, not only ROM testing | Objective confirmation is required and the only acceptable evidence is examiner-documented painful motion (e.g., ROM test pain) | Held: DC 5002 requires objective confirmation, but that confirmation may include medical examiner observations and lay evidence capable of independent verification (e.g., third-party observations, documented physician notes), not solely ROM test findings |
| Whether the Board erred in finding no objective evidence of painful motion in this record | Petitti: Board ignored credible lay affidavits and examiner findings showing painful joints and objective signs (synovitis, tenderness) | Secretary: VA examiners found no pain on ROM testing, so no objective painful motion shown | Held: Reversed — Board clearly erred; record contains objectively confirmatory evidence (medical findings and competent lay observations) supporting painful motion; remanded for joint-specific ratings determination |
| Remedy: vacatur, reversal, or remand | Petitti sought reversal and higher ratings or remand for evaluation | Secretary favored affirmance | Held: Board finding that there was no objective evidence of painful motion is reversed; Board decision vacated and case remanded for further adjudication of appropriate ratings per joint |
Key Cases Cited
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir. 2003) (statutory/regulatory interpretation reviewed de novo)
- Kent v. Principi, 389 F.3d 1380 (Fed. Cir. 2004) (de novo review of regulatory interpretation)
- Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994) (canons of statutory interpretation apply to regulations)
- Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991) (painful motion equated with limited motion for minimum DC rating)
- Mitchell v. Shinseki, 25 Vet.App. 32 (2011) (painful motion can yield minimum rating but does not justify maximum ratings equivalent to actual ROM loss)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence competent on observable symptoms)
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) (reversal appropriate when only permissible view of evidence is contrary to Board)