As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.
Notes of Decisions
Cited in
243
cases (
10 in the last 5 years), 1984–2021 · leading case:
DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995).
DeLuca v. Brown, 8 Vet. App. 202 (Vet. App. 1995).
· cites it 3× “40 regarding functional loss due to pain; 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint; and the Court’s decisions in Schafrath v.”
Russell W. Burton v. Eric K. Shinseki, 25 Vet. App. 1 (Vet. App. 2011).
· cites it 3× “202, 207 (1995) (rejecting interpretation that 38 C.F.R. § 4.45 is limited to muscle and nerve conditions because, inter alia, plain language does “not refer solely to muscle and nerve conditions”).”
Tyra K. Mitchell v. Eric K. Shinseki, 25 Vet. App. 32 (Vet. App. 2011).
· cites it 2× “” 38 C.F.R. § 4.45 (2011). It then states that six factors are important in evaluating the disability of a joint: Less or more movement than is normal; weakened movement; excess fatigability; incoordination; and pain on movement (as well as swelling, deformity, and atrophy) that…”
Correia v. McDonald, 28 Vet. App. 158 (Vet. App. 2016).
“38 C.F.R. § 4.45 (2015). Read together, § 4.”
Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).
“38 C.F.R. § 4.45 (f). Another regulation notes that painful motion is a consideration in evaluating disabilities of the pelvic bones.”
Schafrath v. Derwinski, 1 Vet. App. 589 (Vet. App. 1991).
“38 C.F.R. § 4.45 (1991) states: As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different [planes].”
Fenderson v. West, 12 Vet. App. 119 (Vet. App. 1999).
“40 (1998), relating to functional loss due to inflammation or damage to parts of the exoskeletal system, and 38 C.F.R. § 4.45 (1998), regarding impairment to the joints, but chose, without explanation, not to apply those regulations.”
Johnson v. Brown, 9 Vet. App. 7 (Vet. App. 1996).
· cites it 2× “40 (1995) regarding musculoskeletal functional loss due to pain and 38 C.F.R. § 4.45 (f) (1995) regarding pain on movement of a joint.”
Quarles v. Derwinski, 3 Vet. App. 129 (Vet. App. 1992).
“38 C.F.R. § 4.45 (f). Thus, pain on use is as important in rating a low back disability as is limitation of motion (see 38 C.”
Spicer v. Shinseki, 752 F.3d 1367 (Fed. Cir. 2014).
· cites it 3× “Spicer argued that DC 5003 assigns a 10% rating for either a single affected major joint or a group of affected minor joints and that 38 C.F.R. § 4.45 (f) does not mandate that multiple minor joints be involved.”
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