Thompson v. McDonald
2016 U.S. App. LEXIS 4291
Fed. Cir.2016Background
- Veteran Wade G. Thompson injured his back in service and filed for VA disability for lumbar degenerative disc disease; VA assigned a 20% rating for June 1, 2008–March 8, 2011.
- Thompson appealed the 20% rating to the Board of Veterans’ Appeals, arguing § 4.40 (functional loss from pain) could justify a rating higher than the § 4.71a motion-based schedule.
- The Board found Thompson’s forward flexion never reached 30° or less (threshold for 40% under § 4.71a) even when accounting for pain and concluded additional functional loss from pain did not justify a higher rating.
- The Veterans Court affirmed, reasoning that the conceded functional loss from pain did not produce the range-of-motion threshold required for a higher rating under § 4.71a.
- On appeal to the Federal Circuit, the central legal question was whether § 4.40 supplies an independent basis for a disability rating separate from the specific rating criteria in § 4.71a.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4.40 provides an independent basis for a separate rating outside § 4.71a | Thompson: § 4.40’s functional-loss guidance (including pain on use) must be considered and can support a higher rating beyond § 4.71a’s ROM thresholds | VA/Board: § 4.40 is general guidance; ratings are determined by the specific criteria in § 4.71a, which already accounts for pain (“with or without” symptoms) | Held: No — § 4.40 is interpretive guidance; ratings are assigned under § 4.71a’s explicit criteria; affirmed |
Key Cases Cited
- Mitchell v. Shinseki, 25 Vet. App. 32 (Vet. App. 2011) (pain alone does not constitute functional loss for ROM-based ratings absent effect on normal working movements)
- DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995) (functional loss from pain on use—consideration of flare-ups and pain during use in rating)
- Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) (appellate review of Veterans Court legal issues is de novo)
- Lockheed Corp. v. Widnall, 113 F.3d 1225 (Fed. Cir. 1997) (interpret regulations by plain language and common meaning)
- United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (U.S. 1988) (read statutory/regulatory provisions in context of the overall scheme)