WADE THOMPSON, Claimant-Appellant v. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
2015-7017
United States Court of Appeals for the Federal Circuit
March 8, 2016
Appeal from the United States Court of Appeals for Veterans Claims in No. 13-1633, Judge Lawrence B. Hagel.
JAMES R. BARNEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for claimant-appellant. Also represented by CARA R. LASSWELL, RONALD LEE SMITH.
WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR., ERIC PETER BRUSKIN; DAVID J. BARRANS, MARTIE ADELMAN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
CHRISTY G. LEA, Knobbe, Martens, Olson & Bear, LLP, Irvine, CA, for amicus curiae
Before NEWMAN, PLAGER, and REYNA, Circuit Judges.
PLAGER, Circuit Judge.
This is a veterans case. Wade G. Thompson appeals a judgment of the Court of Appeals for Veterans Claims (“Veterans Court“). The Veterans Court affirmed a decision of the Board of Veterans’ Appeals (“Board“) denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court‘s decision was based in part upon its interpretation of
Thompson‘s appeal raises a question of first impression: Does
BACKGROUND
Regulatory Framework
The Schedule for Rating Disabilities,
Section 4.40, entitled “Functional loss,” states:
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.
One of the two specific ratings sections,
Thompson‘s Case
We detail the background of Thompson‘s case only as necessary. A more complete background is set forth in the opinion of the Veterans Court. See Thompson v. McDonald, No. 13-1633, 2014 WL 4239747 (Vet. App. Aug. 28, 2014). In brief, Thompson served in the United States Marine Corps from May 1992 to November 1993. He sustained a back injury while on active duty and was honorably discharged for medical reasons in 1993.
On March 28, 2008, the Department of Veterans Affairs (“VA“) received Thompson‘s claim for disability benefits for low-back disability. As a result of a series of VA Regional Office (“RO“) decisions, Thompson was assigned a 20% rating for service connected degenerative disc disease of the lumbar spine, applicable for the period from June 1, 2008 to March 8, 2011.
Thompson disagreed with the 20% rating, and appealed to the Board. The Board denied Thompson entitlement to a rating in excess of 20%. As a factual finding, the Board determined: “Prior to March 8, 2011, the Veter-an‘s service connected degenerative disc disease of the lumbar spine did not cause forward flexion of the thoracolumbar spine of 30 degrees or less . . . .” J.A. 23. The Board stated that “forward flexion of the thoracolumbar spine was not 30 degrees or less, even considering limitation caused by pain, fatigue, and other factors.” J.A. 33. The Board observed that, upon examination, Thompson had forward flexion of the lumbar spine from 0 to 65 degrees, with pain throughout the range of motion, and that, after repeated testing, forward flexion was only from 0 to 50 degrees.
The Board reasoned that, under Mitchell v. Shinseki, 25 Vet. App. 32 (2011), pain, by itself, does not constitute a functional loss entitling a veteran to a higher rating “under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system.” J.A. 33. The Board quoted the statement in Mitchell that “pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed coordination, and endurance in order to constitute functional loss.” J.A. 33–34 (quoting Mitchell, 25 Vet. App. at 43). The Board concluded that Thompson‘s pain failed to cause “sufficient functional impairment to limit the flexion of the thoracolumbar spine to 30 degrees or less, as is required for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine.” J.A. 34.
As a legal conclusion, the Board determined that: “The criteria for an initial disability rating in excess of 20 percent for service connected degenerative disc disease of the lumbar spine prior to March 8, 2011 have not been met.” J.A. 23. In support of that conclusion, the Board cited
The court reasoned that, because the conceded additional functional loss due to pain did not limit Thompson‘s forward flexion to 30 degrees or less, it did not warrant a higher rating. The court stated:
Mr. Thompson is correct in his assertion that “range of motion ratings under
§ 4.71a do ‘not subsume38 C.F.R. § 4.40 ,’ and ’38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups.‘” Mot. for Reconsideration at 3 (quoting DeLuca [v. Brown, 8 Vet. App. 202, 205–06 (1995)]). Nevertheless, despite Mr. Thompson‘s assertions that the [Veterans Court‘s] finding runs afoul of DeLuca because it “appears to state that the ratings in38 C.F.R. § 4.71a adequately consider functional loss due to pain,” Mot. for Reconsideration at 2, the [Veterans Court‘s] finding here is simply that the Board did not err in finding that the conceded additional functional loss due to pain is not compensable above and beyond the disability rating already assigned. In other words, because the additional functional loss due to pain is not severe enough to limit Mr. Thompson‘s forward flexion to 30 degrees or less, it does not warrant a 40% disability rating. It appears that Mr. Thompson would have the [Veterans Court] ignore the express language
he quotes from DeLuca: “consideration of a higher rating based on a greater limitation of motion due to pain.” DeLuca, 8 Vet. App[.] at 205-06 [sic]. Here, a higher rating based on greater limitation of motion due to pain is not warranted because the limitation of motion due to pain does not rise to the level necessary for a 40% disability rating.
J.A. 13.
The Veterans Court entered judgment based on its decision, and Thompson appealed to this court. We have jurisdiction pursuant to
DISCUSSION
Our review of Veterans Court decisions is limited by statute. See
“To interpret a regulation we must look at its plain language and consider the
Section 4.40 speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss. The section defines disability of the musculoskeletal system as “primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.”
Section 4.40 also mandates that “a part which becomes painful on use must be regarded as seriously disabled.” Id. Yet, the section provides no explicit rating for such disability. Instead, the section explains that “functional loss . . . may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.” Id. It also explains that “[w]eakness is as important as limitation of motion.” Id.
In discussing disability of the musculoskeletal system, the section focuses on the “normal working movements of the body” in terms of several elements, including normal excursion. The section also mentions pain. It speaks to pain (in terms of use) as capable of rendering a part of the musculoskeletal system or body seriously disabled. However, despite its discussion of pain, disability, and functional loss,
We read the words of a regulation in their context and with a view to their place in the overall regulatory scheme. See Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1365 (Fed. Cir. 2015) (noting that we apply the same interpretive rules for analyzing regulations that are used for analyzing statutes); Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989) (noting that the words of a statute are read in context and with respect to the overall statutory scheme). See also United Sav. Ass‘n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988).1 Based upon our prior discussion of the regulatory framework, it is clear that
Read together, the absence of any explicit ratings in
This is confirmed by the language of
So understood, the Veterans Court‘s legal interpretation in this case was proper. Because there is no error of law in the Veterans Court‘s judgment, and because we cannot review the court‘s application of the law to the facts, we must affirm.2
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Veterans Court.
AFFIRMED
COSTS
No costs.