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.
Notes of Decisions
Cited in
456
cases (
27 in the last 5 years), 1991–2026 · leading case:
Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).
Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).
· cites it 7× “" We have explained that the "functional loss" regulation, 38 C.F.R. § 4.40 , "makes clear that functional loss may be due to pain and that pain may render a part seriously disabled.”
Tyra K. Mitchell v. Eric K. Shinseki, 25 Vet. App. 32 (Vet. App. 2011).
· cites it 9× “at 5, 6, 7 (quoting 38 C.F.R. § 4.40 ). Thus, the appellant asserts that “[e]xcursion that causes [objectively verified] pain constitutes functional loss of motion.”
Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991).
· cites it 6× “Under 38 C.F.R. § 4.40 , functional disability due to pain may be the basis of a compensable rating.”
DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995).
· cites it 5× “The Court ordered the Board to consider the application of 38 C.F.R. § 4.40 regarding functional loss due to pain; 38 C.”
Russell W. Burton v. Eric K. Shinseki, 25 Vet. App. 1 (Vet. App. 2011).
· cites it 3× “Burton asserts that the Board erred by failing to (1) address adequately 38 C.F.R. §§ 4.40 , 4.59, and painful motion generally, or otherwise assign a minimum compensable rating for his actually painful joints, see 38 C.”
Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016).
· cites it 3× “The Veterans Court’s decision was based in part upon its interpretation of 38 C.F.R. § 4.40 in light of § 4.71a. Thompson’s appeal raises a question of first impression: Does § 4.”
Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999).
· cites it 2× “The Board also described 38 C.F.R. § 4.40 (1998), relating to functional loss due to inflammation or damage to parts of the exoskeletal system, and 38 C.”
Johnson v. Brown, 9 Vet. App. 7 (Vet. App. 1996).
· cites it 4× “The Secretary pointed out the Board’s failure to apply 38 C.F.R. § 4.40 (1995) regarding musculoskeletal functional loss due to pain and 38 C.”
Sanchez-Benitez v. West, 13 Vet. App. 282 (Vet. App. 1999).
· cites it 4× “38 C.F.R. §§ 4.40 (must consider pain in relation to functional loss of musculoskeletal system); 4.”
Correia v. McDonald, 28 Vet. App. 158 (Vet. App. 2016).
“” 38 C.F.R. § 4.40 (2015). That regulation states that it “is essential ” that an examination on which a disability rating is based “adequately portray the anatomical damage! 1 and the functional loss” that occurs as a result of those elements.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.