Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.”
USCAVC No. 19-6885 MOSLEY V MCDONOUGH MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a)
Designated for electronic publication only
Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011); For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit the functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet. App. 202, 206 (1995));
This action may not be cited as precedent.
TOTH, Judge: Navy veteran Billy Mosley seeks a rating higher than 10% for his back
disability, for the period from January 22, 2010, to October 19, 2017, and ratings higher than 10%
for a left and a right knee disability for the period since January 22, 2010.* When rating joint
disabilities, the Board should rely on VA examinations that consider whether and to what extent
pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 limit a veteran’s ability to function.
Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). Mr. Mosley argues that a May 2010 VA exam is
inadequate to properly rate his functional loss and that the Board’s assessment of functional loss is
not supported by an adequate statement of reasons or bases.
For the back disability, the Secretary concedes that the Board didn’t explain why it relied
on the May 2010 exam to rate the veteran’s back disability for the period between January 2010
and October 2017, as that exam did not adequately portray the extent of the veteran’s functional
loss for that period. The Court accepts this concession and remands that matter. With respect
- The veteran raises no argument as to the Board’s denial of a rating in excess of 40% for his back disability
for the period since October 19, 2017, so any appeal as to that matter is dismissed. See Pederson v. McDonald, 27
Vet.App. 276, 283 (2015) (en banc). The Board also remanded a claim for service connection for an acquired
psychiatric disorder. Because remands are not final Board decisions, the Court does not have jurisdiction over that
matter. See Martinez v. Wilkie, 31 Vet.App. 170, 173 n.2 (2019).