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Updated May 28, 2024

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3
4

1.  Principles for Evaluating Painful Motion

Introduction
This topic contains principles for evaluating painful motion, including
Change Date
September 15, 2021

V.iii.1.A.1.a.  Establishing the Minimum Compensable Evaluation Under 38 CFR 4.59
An actually painful joint can be a basis for assignment of a compensable evaluation even though the specific criteria for a compensable evaluation listed in a diagnostic code (DC) for the joint are not met.
The regulatory language at 38 CFR 4.59 provides that
  • pain of a joint due to joint or periarticular (structures surrounding the joint) pathology is indicative of disability, and
  • an actually painful joint justifies the assignment of the minimum compensable evaluation for the joint under the applicable DC.
Guidance for assessment of a disability to determine whether painful motion exists is also included in 38 CFR 4.59.  Particularly, this regulation
  • describes ways in which painful motion can be discerned, such as
    • facial expression
    • wincing, etc., on pressure of manipulation
    • muscle spasms, or
    • crepitation in tendons, ligaments, or joint structures
  • requires that the findings be noted in the medical evidence to assist the rating authority in assigning a disability rating that adequately accounts for painful motion, and
  • explains the kinds of test results that must be obtained to permit an adjudicator to assess the effect of painful motion, including range of motion (ROM) tests
    • for passive and active motion
    • in both weight-bearing and nonweight-bearing circumstances, and
    • for the opposite undamaged joint for comparison purposes, if possible.
Notes:
  • 38 CFR 4.71a, DC 5002 and 5003 (and several other DCs that incorporate the criteria from those DCs by reference) provide that where limitation of motion (LOM) of joint(s) is noncompensable under DCs specific to the involved joint(s), a compensable evaluation can be assigned for the LOM if objectively confirmed by findings such as satisfactory evidence of painful motion.  In contrast, 38 CFR 4.59 provides an alternate basis for assigning a compensable evaluation for disabilities rated under those DCs on the basis of credible lay evidence of painful motion. The minimum compensable evaluation may be assigned under 38 CFR 4.59 based on subjective painful motion, and does not require objective evidence of painful motion.
  • Multiple precedential court decisions have impacted the application of 38 CFR 4.59, as discussed at M21-1, Part V, Subpart iii, 1.A.1.b–k.  These holdings must be applied in determining whether the minimum compensable evaluation for a disability based on painful motion is warranted under 38 CFR 4.59.
Reference:  For more information on considering painful motion when assigning multiple LOM evaluations for a joint, see M21-1, Part V, Subpart iii, 1.A.3.e.

V.iii.1.A.1.b.  Precedential Court Holdings Impacting 38 CFR 4.59
Multiple precedential decisions have impacted the application of 38 CFR 4.59.  Refer to the table below for a listing of impactful precedential court holdings, a brief description of the impact, and the applicability date (date of decision) for each.  More detailed explanations for each holding and its impact on the application of 38 CFR 4.59 in claims processing can be found in M21-1, Part V, Subpart iii, 1.A.1.c–i.
Holding
Summary of Impact
Date of Decision
DeLuca v. Brown, 8 Vet.App. 202 (1995)
Clarified exam requirements to assess the impact of pain on functional impairment including additional loss of motion due to pain.
December 22, 1995
Burton v. Shinseki, 25 Vet.App. 1 (2011)
38 CFR 4.59 is not limited in applicability to arthritis claims.
August 4, 2011
Mitchell v. Shinseki, 25 Vet.App. 32 (2011)
Clarified
  • exam requirements for assessing impact of painful motion with use and during flare-ups, and
  • that when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion.
August 23, 2011
Petitti v. McDonald, 27 Vet.App. 415 (2015)
  • 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint.
  • 38 CFR 4.71a, DC 5002 does require objective evidence of painful motion.
October 28, 2015
Sowers v. McDonald, 27 Vet.App. 472 (2016)
  • limited by the DC applicable to the claimant’s disability, and
  • inapplicable to a DC that does not provide a compensable evaluation.
Note:  The Sowers holding influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59.
February 12, 2016
Note:  The policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59 is effective May 23, 2016.
Correia v. McDonald, 28 Vet.App. 158 (2016)
  • Clarified exam requirements for ROM testing to evaluate joint disabilities for painful motion in weight-bearing, nonweight-bearing, with active and passive motion, and in comparison to the opposite joint.
  • Directed that pain with passive motion (even in the absence of another indication of painful motion) is sufficient to satisfy the criteria for entitlement to the minimum compensable evaluation under 38 CFR 4.59.
July 5, 2016
Southall-Norman v. McDonald, 28 Vet.App. 346 (2016)
38 CFR 4.59 is not limited to DCs involving limited ROM.
 December 15, 2016
Reference:  For more information on assignment of effective dates associated with precedential court decisions, see M21-1, Part V, Subpart ii, 4.A.7.

V.iii.1.A.1.c.  Assessing Functional Loss Due to Pain Per Deluca v. Brown
DeLuca v. Brown, 8 Vet.App. 202 (1995), held that in examinations of musculoskeletal disabilities, the examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or with repeated use over a period of time.
This information must be portrayed in terms of the degree of additional ROM lost due to pain on use or during flare-ups.
Impact on application of 38 CFR 4.59:
  • Examinations must address the DeLuca criteria.
  • The DeLuca holding is not limited in impact to painful motion.  The holding impacts consideration of functional impairment due to pain and other factors as discussed in 38 CFR 4.40, 38 CFR 4.45, and M21-1, Part V, Subpart iii, 1.A.3.
  • Decision makers must properly assess the DeLuca findings in conjunction with 38 CFR 4.40, 38 CFR 4.45, and 38 CFR 4.59.  The disability is evaluated based on most severe loss of motion due to pain or following repetitive motion testing.
  • The Deluca decision was effective December 22, 1995.
Note:  The DeLuca holding had limited impact on the application of 38 CFR 4.59 other than the fact that it may elicit evidence concerning the presence of pain.  However, DeLuca does impact application of 38 CFR 4.40 and 38 CFR 4.45.  DeLuca also clarified that the plain language of 38 CFR 4.45 does not limit the evaluation criteria contained therein to muscle injuries.
Reference:  For more information on assessing examinations for adequacy in conjunction with DeLuca and associated holdings on ROM and functional loss, see

V.iii.1.A.1.d.  Applicability of 38 CFR 4.59 Beyond Arthritis Per Burton v. Shinseki
Although the first sentence of 38 CFR 4.59 refers only to arthritis, Burton v. Shinseki, 25 Vet.App. 1 (2011) held that the regulation is, in fact, also applicable to joint conditions other than arthritis.
Impact on application of 38 CFR 4.59:
  • Do not limit assignment of the minimum compensable evaluation under 38 CFR 4.59 to DCs involving arthritis.
  • The Burton holding affirmed the Department of Veterans Affairs’ (VA’s) longstanding policy on the application of 38 CFR 4.59 to disabilities in addition to arthritis.
  • The Burton holding is effective August 4, 2011.

V.iii.1.A.1.e.  Assessing Functional Loss Due to Pain Per Mitchell v. Shinseki
Mitchell v. Shinseki, 25 Vet.App. 32 (2011), held that pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon ROM loss.  Thus, when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion.
Furthermore
  • if pain is associated with movement, the examiner must give an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, and
  • the opinion must, if feasible, be expressed in terms of the degree of additional ROM loss due to pain on use or during flare-ups.
Impact on application of 38 CFR 4.59:
  • Examinations must address the Mitchell criteria.
  • When painful motion on repeated use over time or during a flare-up results in additional loss of ROM, then the condition should be evaluated based on the additional loss of ROM.
  • ROM must be actually limited.  Do not assign an evaluation for loss of ROM based on the point at which pain accompanies motion unless the pain actually causes reduced ROM on objective assessment.
  • The Mitchell holding is not limited in impact to painful motion.  The holding impacts consideration of functional impairment due to pain and other factors as discussed in 38 CFR 4.40, 38 CFR 4.45, and M21-1, Part V, Subpart iii, 1.A.2.c.
  • The Mitchell holding is effective August 23, 2011.
Reference:  For more information on assessing examinations for adequacy in conjunction with Mitchell and related holdings on ROM and functional loss, see

V.iii.1.A.1.f.  Satisfactory Evidence of Painful Motion Per Petitti v. McDonald
Petitti v. McDonald, 27 Vet.App. 415 (2015), held that 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation of a joint.  This guidance applies to all musculoskeletal disabilities irrespective of the DC that has already been assigned to the disability.
Note:  Apply the historical criteria for acceptance of an informal claim under 38 CFR 3.157, as discussed in M21-1, Part V, Subpart ii, 4.B.1, when a report of examination or hospitalization at a VA or uniform services facility shows worsening of the disability evidenced by the onset of painful motion of a service-connected (SC) disability evaluated as noncompensable on before March 24, 2015.
Impact on application of 38 CFR 4.59:
  • Under 38 CFR 4.59, objective evidence of painful motion is not required for assignment of the minimum compensable evaluation for the musculoskeletal disability.  Lay evidence of painful motion is sufficient.
    • Lay testimony may consist of a Veteran’s own statement to the extent that the statement describes symptoms capable of lay observation.
    • Lay testimony may consist of a description by another person detailing observations of a Veteran’s difficulty walking, standing, sitting, or undertaking other activity.
  • The following are examples (not an all-inclusive list) of symptoms sufficient to assign the minimum compensable evaluation for the joint under 38 CFR 4.59:
    • pain with weight-bearing or nonweight-bearing
    • pain with passive ROM
    • pain reported during repeated use, or
    • pain reported during flare-ups.
  • The following are examples (not an all-inclusive list) of symptoms that can support a claimant’s report of painful motion but are not sufficient evidence, by themselves, to support assignment of the minimum compensable evaluation under 38 CFR 4.59:
    • crepitus/joint crepitation (a clinical sign of a crackling or grating feeling or sound in a joint), and
    • pain on palpation.
  • An examiner’s opinion that painful motion would be present with repeated use over time or during flare-ups (as required in the Mitchell opinion) may be sufficient lay evidence to support a finding of painful motion, if found credible.
  • A finding of painful motion under 38 CFR 4.59 based on lay or subjective reporting of pain is contingent on a credibility assessment as discussed at M21-1, Part V, Subpart ii, 1.A.2.b.
  • Prior to the Petitti holding, longstanding VA policy was that objective evidence of painful motion was required to assign the minimum compensable evaluation under 38 CFR 4.59.
  • The Petitti holding is effective October 28, 2015.
References:  For more information on

V.iii.1.A.1.g.  Selecting a DC and Minimum Compensable Evaluation for 38 CFR 4.59 Per Sowers v. McDonald
Sowers v. McDonald, 27 Vet.App. 472 (2016), held that 38 CFR 4.59 is limited by the DC applicable to the claimant’s disability, and where that DC does not provide a compensable rating, 38 CFR 4.59 does not apply.
Example:  Painful motion of a right ring finger fracture that is rated under 38 CFR 4.71a, DC 5230 would not receive a compensable evaluation under 38 CFR 4.59 because this DC does not contain a compensable evaluation.
Important:  Sowers did not specifically hold that the minimum compensable evaluation must be assigned under the applicable DC for the disability involved.  However, the holding did influence a subsequent policy determination that the minimum compensable evaluation under the DC must be assigned when painful motion is demonstrated under 38 CFR 4.59.  This policy is effective May 23, 2016.
  • This policy particularly affects painful motion of the shoulder evaluated under 38 CFR 4.71a, DC 5201.  Under this DC, painful motion of the shoulder warrants assignment of a 20-percent evaluation.
  • This decision represents a change in longstanding VA policy in which the minimum compensable evaluation was interpreted as a 10-percent evaluation irrespective of the DC involved.
Impact on application of 38 CFR 4.59:
  • Effective February 12, 2016, the Sowers holding requires that 38 CFR 4.59 must be applied based on the DC applicable to the disability.  In other words, the DC most appropriate to the disability being evaluated must be selected, and then 38 CFR 4.59 must be applied accordingly.
  • Effective May 23, 2016, the minimum compensable evaluation refers to the lowest evaluation specified under the DC most applicable to the disability.

V.iii.1.A.1.h.  Assessing Joint Disabilities for Pain Per Correia v. McDonald
Correia v. McDonald, 28 Vet.App. 158 (2016), held that the final sentence of 38 CFR 4.59 requires that certain ROM testing be conducted to assess for pain whenever possible in evaluating joint disabilities.  Particularly,
  • the joints involved must be tested for pain
    • on both active and passive motion, and
    • in weight-bearing and nonweight-bearing, and
  • the ROM of the opposite, undamaged joint must be assessed for comparison, if possible.
Correia also held that pain with passive motion, and not just active motion, warrants entitlement to the minimum compensable evaluation under 38 CFR 4.59.
Note:  If the examiner cannot assess the motion of the opposite, undamaged joint, and an opposite joint does exist, the examiner should explain why the assessment is not possible.  Examples of situations in which ROM of the opposite, undamaged joint cannot be assessed for comparison include (but are not limited to) the
  • spinal disabilities, since there is no opposite joint
  • disabilities wherein the opposite, undamaged joint has been amputated, or
  • disabilities wherein the opposite joint is damaged or disabled and would not be an effective comparison to ascertain the degree of impairment of the SC joint.
Impact on application of 38 CFR 4.59:
  • Examinations must address the Correia criteria.
  • Assign the minimum compensable evaluation when there is evidence of painful motion with
    • active or passive motion, and/or
    • with weight-bearing or nonweight-bearing.
  • Prior to the Correia holding, longstanding Veterans Benefits Administration policy was that only pain with active motion triggers application of 38 CFR 4.59.
  • The Correia holding is effective July 5, 2016.

V.iii.1.A.1.i.  Selecting a DC for Application of 38 CFR 4.59 Per Southall-Norman v. McDonald
Southall-Norman v. McDonald, 28 Vet.App. 346 (2016), held that 38 CFR 4.59 is
  • not limited to the evaluation of musculoskeletal disabilities under DCs predicated upon ROM measurements, and
  • applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated upon ROM measurements.
Examples:
Impact on application of 38 CFR 4.59:
  • When musculoskeletal disability involves joint or periarticular pathology that is painful, 38 CFR 4.59 is applicable when painful motion is present without regard to whether the DC used for evaluation involves ROM.
  • The Southall-Norman holding represents a change to longstanding VA policy which directed that 38 CFR 4.59 applies only to DCs involving ROM.
  • The Southall-Norman holding is effective December 15, 2016.

V.iii.1.A.1.j.  Assessing Medical Evidence for Functional Loss Due to Pain
Medical evidence used to evaluate functional impairment due to pain must account for painful motion, pain on use, and pain during flare-ups or with repeated use over a period of time.
As a part of the assessment conducted in accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), the medical evidence must
  • clearly indicate the exact degree of movement at which pain limits motion in the affected joint, and
  • include the findings of at least three repetitions of ROM.
Per Mitchell v. Shinseki, 25 Vet.App. 32 (2011), when pain is associated with movement, an examiner must opine or the medical evidence must show whether pain could significantly limit functional ability
  • during flare-ups, or
  • when the joint is used repeatedly over a period of time, and
  • if there is functional impairment found during flare-ups or with repeated use over a period of time, the examiner must provide, if feasible, the degree of additional LOM due to pain on use or during flare-ups.
Per Correia v. McDonald, 28 Vet.App. 158 (2016)
  • the joints involved must be tested for pain
    • on both active and passive motion, and
    • in weight-bearing and nonweight-bearing, and
  • if possible, the ROM of the opposite, undamaged joint must be assessed for comparison.
Important:
  • If the examiner cannot provide any of the above findings the report must
    • indicate that the examiner cannot determine, without resort to mere speculation, whether any of these factors cause additional functional loss, and
    • provide rationale for this opinion.
  • An examiner’s statement that speculation is required is, itself, a medical opinion that must be supported by adequate rationale.  A review of the claims folder and consideration of all procurable and relevant information must be demonstrated as discussed in M21-1, Part IV, Subpart i, 3.A.1.r.
References:  For more information on

V.iii.1.A.1.k.  Considering DeLuca and Mitchell Results
The findings of DeLuca repetitive ROM testing or the functional loss expressed in the Mitchell opinion will be used to evaluate the functional impairment of a joint due to pain.
  • Only the most advantageous finding will be utilized to evaluate the joint condition.
  • Do not “add” the LOM on DeLuca exam to the LOM expressed in a Mitchell opinion.
References:  For more information on

V.iii.1.A.1.l.  Evaluating Painful Motion of Minor Joints or Joint Groups Under 38 CFR 4.59
The determining factor as to whether a minimum compensable evaluation may be assigned under 38 CFR 4.59 is whether the appropriate corresponding DC for the joint or periarticular region involved includes a compensable evaluation, as demonstrated in Sowers v. McDonald, 27 Vet.App. 472 (2016).
38 CFR 4.59 does not include a specific provision limiting application to major joints or provisions for how to consider groups of minor joints.  Thus, major joint involvement or multiple minor joint involvement is not a factor in determining whether a minimum compensable evaluation may be assigned under 38 CFR 4.59.
The following principles apply when evaluating painful motion of the minor joints of the hands and feet:
  • 38 CFR 4.71a, DC 5228 and 5229 allow for compensable evaluations for LOM of the thumb, index finger, and long finger.  Consequently, compensable evaluations are warranted for painful motion of each of these fingers.  Separate evaluations must be assigned for each SC digit evaluated under these DCs affected by painful motion.
  • Painful motion of multiple toes of one foot due to injuries is most appropriately evaluated under 38 CFR 4.71a, DC 5284 since there is no specific code for evaluation of injuries of single toes.  A single evaluation is warranted for a single foot, whether it is affected by one or more painful toes or other painful joints of the foot.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a single 10-percent evaluation is warranted for painful motion of one of more toes or other joints in a foot due to injury.
    • Do not routinely utilize 38 CFR 4.71a, DC 5280 to evaluate painful motion of the first toe.
    • Assignment of a 10-percent evaluation for painful motion of the first toe under 38 CFR 4.71a, DC 5280 is appropriate only when the disability being evaluated is hallux valgus or another disability that is most appropriately analogously evaluated as hallux valgus (as required in the Sowers holding).
    • Assignment of the minimum compensable evaluation for painful motion due to hammertoes evaluated under 38 CFR 4.71a, DC 5282 requires involvement of all five toes unless the hammertoes are due to injury, in which case the painful motion of less than five toes could be alternatively evaluated under 38 CFR 4.71a, DC 5284.
Note:  The definition of joint that is reliant on the distinction of major and minor joints at 38 CFR 4.45(f) is applicable for the purpose of rating arthritis but is not applicable to 38 CFR 4.59.
References:  For more information on

V.iii.1.A.1.m.  Steps for Applying 38 CFR 4.59
Refer to the table below for procedures for assessing the applicability of and applying 38 CFR 4.59.
Step
Action
1
Determine the DC most applicable to the disability based on either
  • the disability and corresponding DC as specifically listed in the rating schedule, or
  • application of 38 CFR 4.20 for selection of the most appropriate analogous DC.
Go to Step 2.
Note:  Per Sowers v. McDonald, 27 Vet.App. 472 (2016), 38 CFR 4.59 is limited by the DC applicable to the claimant’s disability.
2
Review findings on examination to determine whether painful motion is present.  If painful motion is
  • present, go to Step 3, or
  • not present, do not apply 38 CFR 4.59.
Note:  Per Petitti v. McDonald, 27 Vet.App. 415 (2015), 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint.
3
If the DC
  • involves joint or periarticular pathology, go to Step 4, or
  • does not involve joint or periarticular pathology, then application of 38 CFR 4.59 is not warranted.
Note:  Per Southall-Norman v. McDonald, 28 Vet.App. 346 (2016), 38 CFR 4.59 is not limited to DCs involving limited ROM.
4
Review the available evaluations under the selected DC.  If the selected DC
  • allows for assignment of a compensable evaluation, then assign the minimum compensable evaluation for painful motion if other symptoms do not warrant a higher evaluation, or
  • does not allow for a compensable evaluation, then do not assign a compensable evaluation under 38 CFR 4.59.
Note:  The holding in Sowers v. McDonald, 27 Vet.App. 472 (2016) influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59.

2. Examples of Evaluating Painful Motion

Introduction
This topic contains examples of evaluating painful motion under 38 CFR 4.59, including

Change Date
September 15, 2021

V.iii.1.A.2.a.  Painful Motion of the Shoulder
The following examples demonstrate the proper procedures for considering 38 CFR 4.59 when evaluating shoulder disabilities.
Example 1:  Assume a shoulder strain with forward elevation and abduction limited to 145 degrees with credible evidence of pain while performing each motion, starting at 140 degrees.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5201.  Under 38 CFR 4.59 there is actually painful motion and joint or periarticular pathology (a strain).  Therefore, the intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for shoulder motion under the DC is 20 percent.
Example 2:  Assume the same facts as in Example 1 but the diagnosis is traumatic arthritis of the shoulder based on x-rays.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5010-5201 with application of 38 CFR 4.59.  The ROM does not meet the criteria for a 20-percent evaluation under 38 CFR 4.71a, DC 5201 because arm motion is not limited at shoulder height.  However, pursuant to 38 CFR 4.59 there is actually painful motion and joint or periarticular pathology (arthritis).  Therefore, the intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for shoulder motion under 38 CFR 4.71a, DC 5201 is 20 percent.
Example 3:  Assume the same facts as in Example 2 except that there was no pain on motion and the arthritis is degenerative rather than traumatic.  There was a minor amount of swelling of the shoulder.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003.  There is x-ray evidence of degenerative arthritis and motion that is noncompensable under the applicable DC.  There is no indication of painful motion, so 38 CFR 4.59 is not applicable.  Under 38 CFR 4.71a, DC 5003, LOM must be “objectively confirmed” by findings such as swelling, spasm, or satisfactory evidence of painful motion.  In this case there was objective evidence supporting the LOM – namely the minor swelling of the shoulder.

V.iii.1.A.2.b.  Non-Objective Pain Under 38 CFR 4.59
Example 1:  On examination, a claimant reports current symptoms of regular pain of the right knee (particularly when fully straightening the knee) that is worsened with increased activity.  The examiner finds normal ROM without pain on examination.  Repetitive motion testing produces no evidence of pain or loss of motion.  The assessment is right knee strain.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5261.  The claimant’s reports of joint pain are found to be credible.  There is no basis to reject the complaints of pain as lacking in credibility.  38 CFR 4.59 does not require objective evidence of painful motion.  The claimant’s statement establishes that there is actually painful motion of the joint, even though it was not objectively verified on VA examination.
Example 2:  On examination, a claimant reports constant pain of the left elbow (particularly when bending the arm).  The examiner finds normal ROM without pain on examination. Repetitive motion testing produces no evidence of pain or loss of motion.  There is no swelling or spasm. The assessment is degenerative arthritis of the left elbow corroborated by x-rays.  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003-5206.  The claimant’s reports of joint pain are found to be credible.  There is no basis to reject the complaints of pain as lacking in credibility.  Although 38 CFR 4.71a, DC 5003 requires noncompensable LOM and objective confirmation of LOM by spasm, swelling, or satisfactory evidence of painful motion, 38 CFR 4.59 provides an alternative basis for a compensable evaluation and does not require objective evidence of painful motion.  The claimant’s statement establishes that there is actually painful motion of the joint, even though pain was not objectively verified on VA examination.
Example 3:  Start with the same facts as Example 2.  However, in this example, claimant reports significant pain on elbow motion consistently for the last year and particularly in the last week.  However, treatment records from the past year show normal, painless range of elbow motion and no history of pain at rest, or on motion.  Notably, in a VA outpatient report from two days before the VA examination, the claimant told the treating doctor that the elbow was not painful and had not been painful at all in the last year.  Continue the 0-percent evaluation.  Review of all the evidence satisfactorily demonstrates that the complaints of painful motion were not credible.  Elbow motion is not found to be actually painful.

V.iii.1.A.2.c.  Pain With Passive ROM Under 38 CFR 4.59
Service connection (SC) is established for left rotator cuff impingement.  The Veteran reports shoulder pain when lifting the left arm – particularly with repetitive motion of the arm at or above shoulder height.  The Veteran reported a feeling of weakness with repeated over the head motions like painting.  On examination, the Veteran had full active forward elevation, abduction, and external and internal rotation of the shoulder including on repeated motion.  There was no report of pain with active motion.  Passive ROM testing for impingement including the Hawkin’s Sign was positive and reproduced impingement with the guided movements at shoulder height.  Assign a 20-percent evaluation under 38 CFR 4.71a, DC 5201.  The Hawkin’s Sign is a test for pain on passive ROM.  Under 38 CFR 4.59 the shoulder is actually painful to passive ROM and there is joint or periarticular pathology (rotator cuff impingement).  The intention of the rating schedule is that the decision maker will assign the minimum compensable evaluation provided under the DC appropriate to the disability at issue.  The lowest specified compensable evaluation for limited ROM of the shoulder under the DC is 20 percent.
Note:  Medical Electronic Performance Support System (EPSS) provides that a rotator cuff tear should be rated by analogy to 38 CFR 4.71a, DC 5203 (clavicle or scapula, impingement of) because the rotator cuff holds the humeral head in the glenoid fossa of the scapula and consists of the muscles around the scapula.  However, 38 CFR 4.71a, DC 5203 in turn provides that rather than rating impairment of the scapula by dislocation, nonunion, or malunion it may also be rated “on impairment of function of the contiguous joint.”  Medical EPSS notes that rotator cuff impingement is characterized by pain and weakness with motions at or above shoulder height and advises that there may be LOM of the arm for the purposes of 38 CFR 4.71a, DC 5201 in cases of rotator cuff disease.

V.iii.1.A.2.d.  Painful Motion of Minor Joints
Example 1:  Hallux valgus with painful motion of the first toe is most appropriately evaluated under 38 CFR 4.71a, DC 5280.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a 10-percent evaluation is warranted for painful motion of the first toe.  This is applicable only when the disability evaluated is hallux valgus or another disability warranting analogous evaluation under this DC.
Example 2:  Residuals of fracture of the little finger with painful motion is most appropriately evaluated under 38 CFR 4.71a, DC 5230.  The only possible evaluation under this DC is a 0 percent.  Therefore, a compensable evaluation cannot be assigned for painful motion of the little finger.
Example 3:  Painful motion due to fracture of the index or long finger is most appropriately evaluated under 38 CFR 4.71a, DC 5229.  The minimum compensable evaluation for this DC is 10 percent.  Therefore, a 10-percent evaluation is available for painful motion of the index finger and an additional 10-percent evaluation is warranted for painful motion of the long finger, each under 38 CFR 4.71a, DC 5229.

V.iii.1.A.2.e.  Painful Motion Associated With Flatfoot
Situation:  SC is warranted for flat feet under 38 CFR 4.71a, DC 5276.  The clinical evidence shows complete relief of symptoms, including foot pain, with arch supports.  However, the record also contains credible lay reports of pain.
Outcome:  Although no more than a 0-percent evaluation is warranted under 38 CFR 4.71a, DC 5276 on the basis of complete symptom relief due to an orthotic device, application of 38 CFR 4.59 warrants assignment of a 10-percent evaluation.
Rationale:
  • Subjective, credible reports of painful motion trigger application of 38 CFR 4.59 pursuant to the Petitti holding.
  • The criteria for assignment of the minimum compensable evaluation under 38 CFR 4.59 are entirely independent of the criteria for evaluation under the DC.  Thus, the relief of symptoms of pain is immaterial to assignment of the minimum compensable evaluation for painful motion under 38 CFR 4.59 for pes planus or other analogously rated disabilities.
  • Additionally, the Southall-Norman holding requires VA to apply 38 CFR 4.59 to all musculoskeletal codes involving joint or periarticular pathology to include even those, such as 38 CFR 4.71a, DC 5276, that do not specifically consider LOM.
Note:  The minimum compensable evaluation under 38 CFR 4.71a, DC 5276 is a single 10 percent whether for unilateral or bilateral pes planus.  Accordingly, assignment of a single 10-percent evaluation for painful motion due to pes planus is warranted per 38 CFR 4.59 regardless of whether the painful motion is unilateral or bilateral.

3.  Principles for Evaluating Joint Conditions and Functional Loss

Introduction
This topic contains information on evaluating joint conditions and functional loss,  including

Change Date
May 10, 2024

V.iii.1.A.3.a.  Use of the Terms Major and Minor
The use of the terms major and minor joint in 38 CFR 4.45(f) applies solely to the evaluation of joint conditions affected by arthritis as discussed in Spicer v. Shinseki, 752 F.3d 1367 (2014).  These terms are applicable when evaluating any form of arthritis using the evaluation criteria at 38 CFR 4.71a, DC 5003.
Refer to the table below for more information on the use of the terms major and minor in joint evaluations.
Type of Joint
Specific Joints Included
major
  • shoulder
  • elbow
  • wrist
  • hip
  • knee, or
  • ankle
minor
  • interphalangeal joint (of the hand or foot)
  • a metacarpal joint (hand)
  • a metatarsal joint (foot)
  • a carpal joint (hand)
  • a tarsal joint (foot)
  • cervical vertebrae
  • dorsal vertebrae
  • lumbar vertebrae
  • the lumbosacral articulation, or
  • a sacroiliac joint
minor joint group
  • multiple involvements of the interphalangeal, metacarpal, and carpal joints of the same upper extremity, namely, combinations of
    • distal interphalangeal (DIP) joints
    • proximal interphalangeal (PIP) joints
    • metacarpophalangeal (MCP) joints, and/or
    • carpometacarpal (CMC) joints
  • multiple involvements of the interphalangeal, metatarsal, and tarsal joints of the same lower extremity, namely, combinations of
    • interphalangeal (IP) joints
    • metatarsophalangeal (MTP) joints, and/or
    • transverse tarsal joints
  • the cervical vertebrae
  • the dorsal (thoracic) vertebrae
  • the lumbar vertebrae, or
  • the lumbosacral articulation together with both sacroiliac joints
References:  For more information on

V.iii.1.A.3.b.  Importance of Accurate Measurements in Joint Cases
Accurate measurements are very important in joint cases.  VA examinations must measure joint motion with a goniometer.
A number of disability benefits questionnaires (DBQ) relating to joints require use of a goniometer.
Important:  There is a presumption that examiners will conduct examinations in line with examination standards.  Accordingly, treat measurements on examinations that require a goniometer as having been taken using the device unless there is clear evidence that a goniometer was not used.  Do not seek clarification of DBQs requiring goniometer use, or return the examination as insufficient, merely because the report does not explicitly refer to goniometer use.
References:  For more information on

V.iii.1.A.3.c.  Assigning Multiple LOM Evaluations for a Joint
In VAOPGCPREC 9-2004, the Office of General Counsel held that separate evaluations under 38 CFR 4.71a, DC 5260, (limitation of knee flexion) and 38 CFR 4.71a, DC 5261, (limitation of knee extension) can be assigned without pyramiding.  Despite the fact that knee flexion and extension both occur in the same plane of motion, limitation of flexion (bending the knee) and limitation of extension (straightening the knee) represent distinct disabilities.
Important:
Note:  Multiple evaluations for the shoulder under 38 CFR 4.71a, DC 5201, are not permitted.  Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013), held that a Veteran is entitled to a single rating under 38 CFR 4.71a, DC 5201, even though a shoulder disability results in LOM in both flexion (raising the arm in front of the body) and abduction (raising the arm away from the side of the body).
References:  For more information on

V.iii.1.A.3.d.  Assigning a Separate Noncompensable Evaluation When Schedular 0-Percent Criteria Are Not Specified
When considering a separate evaluation for a motion of a joint specified in M21-1, Part V, Subpart iii, 1.A.3.c, where 0-percent evaluation criteria are not provided by the DC, any LOM for that specific movement falling short of criteria for a compensable level of evaluation will be assigned a separate 0-percent evaluation.
38 CFR 4.31 provides that in every instance where the schedule does not provide a 0-percent evaluation for a DC, a 0-percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.
The motions include
Example:  Examination shows flexion of the hip limited to 60 degrees and extension limited to 5 degrees.  Normal hip ROM is from 0 degrees (fully extended) to 125 degrees (fully flexed).  The limitation of extension to 5 degrees is rated 10 percent under 38 CFR 4.71a, DC 5251.  38 CFR 4.71a, DC 5252 (limitation of flexion) does not list criteria for a 0-percent evaluation, but a 10-percent evaluation requires flexion limited to 45 degrees.  Because there is limited flexion not meeting the 10-percent criteria and there is no defined schedular 0-percent evaluation criteria, a 0-percent evaluation is warranted for limited flexion of the hip under 38 CFR 4.71a, DC 5252.

V.iii.1.A.3.e.  Considering Pain When Assigning Multiple LOM Evaluations for a Joint
When considering the role of pain in evaluations for multiple motions of a single joint, the following guidelines apply.
  • When more than one qualifying joint motion is actually limited to a compensable degree and there is painful but otherwise noncompensable limitation of the complementary movement(s), only one compensable evaluation can be assigned.
    • Mitchell v. Shinseki, 25 Vet. App. 32 (2011) reinforced that painful motion is the equivalent of limited motion only based on the specific language and structure of 38 CFR 4.71a, DC 5003, not for the purpose of 38 CFR 4.71a, DC 5260, and 38 CFR 4.71a, 5261.  For degenerative arthritis, if one motion is actually compensable under its 52XX-series DC, then a 10-percent evaluation under 38 CFR 4.71a, DC 5003 is not available and the complementary motion cannot be treated as limited at the point where it is painful.
    • 38 CFR 4.59 does not permit separate compensable evaluations for each painful joint motion.  It only provides that VA policy is to recognize actually painful motion as entitled to at least the minimum compensable evaluation for the joint.
  • When each qualifying joint motion is painful but motion is not actually limited to a compensable degree under its applicable 52XX-series DC, only one compensable evaluation can be assigned.
    • Assigning multiple compensable evaluations for pain is pyramiding.
    • A joint affected by arthritis, excluding post-traumatic arthritis, established by x-ray may be evaluated as 10-percent disabling under 38 CFR 4.71a, DC 5003.
    • For common joint conditions that are not evaluated under the degenerative arthritis criteria such as a knee strain or chondromalacia patella, a 10-percent evaluation can be assigned for the joint based on pain on motion under 38 CFR 4.59.  Do not apply instructions from Note (1) under 38 CFR 4.71a, DC 5003, for non- degenerative arthritis conditions, since the instructions are strictly limited to degenerative arthritis.  See an example in M21-1, Part V, Subpart iii, 1.A.4.f.
References:  For more information on

V.iii.1.A.3.f.  Ankylosis of the Joints
Ankylosis is a condition of, or term used for the sign/symptom of, abnormal stiffness, immobility, or abnormal bending of a joint.  It is a stiffness or immobility in a joint caused by bones fusing as a result of disease or injury or by intentional fusion through surgery.
Favorable ankyloses is fixation of a joint in a neutral position (at 0 degrees).
Unfavorable ankyloses is fixation of a joint in flexion or extension that results in significant functional impairment.
Reference:  For more information on spinal ankylosis, see the General Rating Formula for Diseases and Injuries of the Spine at 38 CFR 4.71a (affiliated with DCs 5235-5243), Notes 5 and 6.

V.iii.1.A.3.g.  Functional Equivalence of Ankylosis
38 CFR 4.40 and 4.45 apply when considering whether LOM results in the functional equivalence of ankylosis of the joint.
The functional equivalence of ankylosis arises when application of the
effect of pain or other factors identified under 38 CFR 4.40 or 4.45, to include during flare-ups and repetitive use over time, results in additional loss of motion to the joint that effectively results in functional impairment consistent with ankylosis.
Reference:  For more information on the functional equivalence of ankylosis, see Chavis v. McDonough, 34 Vet.App. 1 (2021).

V.iii.1.A.3.h.  Evaluating Joint Replacement and Resurfacing
Joint replacement and resurfacing are evaluated under 38 CFR 4.71a, DCs 5051-5056.
  • There are important similarities between joint resurfacing and prosthetic joint replacement.  Joint resurfacing takes about the same time to perform and the recovery/rehabilitation periods are similar to comparable prosthetic joint replacement.
  • There are significant differences with joint resurfacing that lead to less residual disability.  These differences include the following factors:
    • Joint resurfacing preserves more of the original anatomy.
    • In most cases, joint resurfacing restores more of the original joint function than the prosthetic joint replacement.
Refer to the table below for a comparison of policies and procedures applicable to joint replacements and resurfacing.
Policy/Procedure
Replacement
Resurfacing
applicable joints
  • shoulder
  • elbow
  • wrist
  • hip
  • knee, and
  • ankle
  • hip, and
  • knee
length of temporary total evaluation
  • one month under 38 CFR 4.30, then
  • four months for knee or hip, and
  • 12 months for other joints
  • one month under 38 CFR 4.30, then
  • four months for knee or hip
evaluation following temporary 100 percent
  • provided by the rating schedule under the joint replacement/resurfacing DC, or
  • evaluated based on residuals under the DCs applicable for the joint (for all joints except the hip)
  • not provided by the rating schedule under the joint replacement/resurfacing DC, but
  • evaluated based on residuals under the DCs applicable for the joint
review examination following temporary 100 percent
not routinely warranted
routinely warranted
separate evaluations for the same joint under 38 CFR 4.71a
cannot be assigned during the temporary 100 percent or when the residuals are evaluated under a DC for joint replacement
  • cannot be assigned during the temporary 100 percent, but
  • can be assigned after cessation of the evaluation assigned under the joint resurfacing code
separate evaluations for residuals not evaluated under 38 CFR 4.71a
can be assigned
can be assigned
Note:  Follow applicable due process and protected evaluation procedures when the combined evaluation for the joint is greater pre-surgically than it will be following surgery.
Important:  VA published an interpretative rule effective July 16, 2015, revising 38 CFR 4.71a to add a note stating that the term “prosthetic replacement” as used in 38 CFR 4.71a, DCs 5051-5056 means “total replacement of the named joint” except that in 38 CFR 4.71a, DC 5054 it means “total replacement of the head of the femur or of the acetabulum.” Effective February 7, 2021, after proposed rule and comment period, a final rule was issued updating rating schedule provisions pertaining to the musculoskeletal system, and explicitly stating that a minimum evaluation is assignable only for total joint replacement, not partial knee joint replacement.  In a September 20, 2022, decision, NOVA v. Secretary of Veterans Affairs, 48 F.4th 1307 (2022) concluded that prior to February 7, 2021, 38 CFR 4.71a, DC 5055, as then written, did not exclude a partial knee replacement.  The court vacated the rule change that was effective from July 15, 2015, to February 6, 2021. When deciding any claim involving evaluation of a partial knee joint replacement that was pending and not finally adjudicated on September 20, 2022, rate as follows:
  • For any rating period at issue prior to February 7, 2021, apply the text of 38 CFR 4.71a, DC 5055 in effect at that time, but without the note added effective July 16, 2015.
  • For the rating period on or after February 7, 2021, apply the text of the current 38 CFR 4.71a, DC 5055 and the prefatory notes (as applicable).  However, always follow 38 CFR 3.951(a) on preservation of disability ratings when the rating schedule has been changed.
References:  For more information on

V.iii.1.A.3.i..  Evaluating Residuals of Joint Resurfacing

 Following the temporary 100-percent evaluation for joint resurfacing, reinstate the evaluation in place prior to the joint resurfacing procedures.  A review exam must be scheduled at the cessation of the temporary 100-percent evaluation period for joint resurfacing.  Residuals will be evaluated based on impairment of the joint as shown on the examination, and any
  • reduction in evaluation is subject to the provisions of 38 CFR 3.105(e), and
  • increased evaluation will be effective on the day following the temporary 100-percent evaluation period unless the facts clearly demonstrate that the increased level of impairment occurred on a later date, in such case the increase will be assigned based on the date entitlement arose.

V.iii.1.A.3.j..  Severe Painful Motion Following Joint Replacement

 Severe painful motion and LOM, as utilized to evaluate residuals of joint replacements, are distinct concepts.
  • A finding of severe painful motion does not require that LOM be present.
  • LOM is, however, a factor that may be considered when evaluating painful motion.
Reference:  For more information on considering severe painful motion in a joint replacement evaluation, see Tedesco v. Wilkie, 31 Vet.App. 360 (2019).

V.iii.1.A.3.k..  Use of Active ROM Findings

 Active ROM testing is required to measure functional loss as is utilized in DCs based on LOM. Note:  Passive ROM is for consideration in evaluating painful motion, as described in 38 CFR 4.59 and M21-1, Part V, Subpart iii, 1.A.1.

4. Examples of Evaluating Joint Conditions and Functional Loss

Introduction

 This topic contains examples of evaluating joint conditions and functional loss, including

Change Date

 September 15, 2021

V.iii.1.A.4.a..  Compensable Limitation of Two Joint Motions

 Situation:  Evaluation of chronic knee strain with the following examination findings:
  • Flexion is limited to 45 degrees.
  • Extension is limited by 10 degrees.
  • There is no painful motion.
  • There is no additional limitation of flexion or extension on additional repetitions or during flare-ups.
Result:  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5260, and a separate 10-percent evaluation under 38 CFR 4.71a, DC 5261. Explanation:  Each disability (limitation of flexion and limitation of extension)warrants a separate evaluation and the evaluations are for distinct types of impairment.

V.iii.1.A.4.b..  Compensable Limitation of One Motion With Pain in Another Motion

 Situation:  Evaluation of knee tenosynovitis with the following examination findings:
  • Flexion is limited to 45 degrees with pain at that point and no additional loss with repetitive motion.
  • Extension is full to the 0-degree position, but active extension is limited by pain to 5 degrees.
Result:  Assign a 10-percent evaluation under 38 CFR 4.71a, DC 5024-5260 and a noncompensable evaluation under 38 CFR 4.71a, DC 5024-5261. Explanation:
  • Flexion is compensable under 38 CFR 4.71a, DC 5260, but extension remains limited to a noncompensable degree under 38 CFR 4.71a, DC 5261.
  • Under Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the painful extension could only be considered limited for the purpose of determining whether a 10-percent evaluation can be assigned for the joint under 38 CFR 4.71a, DC 5003, which is not applicable in this example because a compensable evaluation was already assigned for flexion under 38 CFR 4.71a, DC 5260.
  • 38 CFR 4.59 does not support a separate compensable evaluation for painful extension.  The regulation states that the intention of the rating schedule is to recognize actually painful joints, due to healed injury, as entitled to at least the minimum compensable evaluation for the joint, not for each painful movement.
  • If the fact pattern involved chondromalacia patella or a knee strain rather than tenosynovitis, the result would be the same.

V.iii.1.A.4.c..  Noncompensable Limitation of Two Motions With Pain

 Situation:  Evaluation of knee degenerative arthritis shown on x-ray with the following examination findings:
  • Flexion is limited to 135 degrees with pain at that point.
  • Extension is full to the 0-degree position with pain at that point.
  • There is no additional loss of flexion or extension on repetitive motion.
Result:  Assign one 10-percent evaluation for the knee under 38 CFR 4.71a, DC 5260-5003. Explanation:
  • There is limitation of major joint motion to a noncompensable degree under 38 CFR 4.71a, DC 5260 and 38 CFR 4.71a, DC 5261, x-ray evidence of arthritis, and satisfactory evidence of painful motion.  Painful motion is limited motion for the purpose of applying 38 CFR 4.71a, DC 5003.  Therefore, a 10-percent evaluation is warranted for the joint.
  • Alternatively, it would also be permissible to assign a 10-percent evaluation under 38 CFR 4.71a, DC 5003-5260 with consideration given to painful motion as provided in 38 CFR 4.59.
  • Assigning two compensable evaluations, each for pain, would be pyramiding.
  • Neither 38 CFR 4.71a, DC 5003, nor 38 CFR 4.59 permits separate 10-percent evaluations for painful flexion and extension; they provide for a 10-percent evaluation for a joint.
  • If the fact pattern involved chondromalacia patella or a knee strain rather than degenerative arthritis, a 10-percent evaluation, not separate evaluations, would still be warranted.  However, the authority would be 38 CFR 4.59, and 38 CFR 4.71a, DC 5260 would be used rather than 38 CFR 4.71a, DC 5003.

V.iii.1.A.4.d..  Evaluating a Joint With Full ROM and Functional Loss Due to Pain

 Situation:  Evaluation of a knee condition with normal initial ROM and additional functional loss indicated on DeLuca and Mitchell assessments.
  • Examination reveals normal ROM for extension of the knee, but pain on motion is present.
  • In applying the DeLuca repetitive use test, the examiner determines that after repetitive use, extension of the knee is additionally limited and the post-test ROM is to 10 degrees due to pain.
  • The examiner provides a Mitchell assessment that during flare-ups the extension of the knee would be additionally limited to 15 degrees due to pain.
Result:  Assign one 20-percent disability evaluation under 38 CFR 4.71a, DC 5261 for limited extension of the knee. Explanation:  A 15-degree limitation of extension, expressed in the Mitchell opinion, is the most advantageous assessment of functional loss for extension of the knee in this scenario.  Therefore, the knee will be evaluated based on extension limited to 15 degrees, resulting in a 20-percent evaluation under 38 CFR 4.71a, DC 5261.

V.iii.1.A.4.e..  Evaluating a Joint With LOM and Functional Loss Due to Pain

 Situation:  Evaluation of a knee condition with limited initial ROM and additional functional loss indicated on DeLuca and Mitchell assessments.
  • Flexion of the knee is limited to 70 degrees with pain on motion during initial examination.
  • In applying the DeLuca repetitive use test, the examiner determines that after repetitive use flexion of the knee is additionally limited, and the post-test ROM is 50 degrees as a result of pain with repetitive use.
  • The examiner provides a Mitchell assessment that during flare-ups the estimated ROM for flexion of the knee would be 30 degrees due to pain.
Result:  Assign one 20-percent disability evaluation under 38 CFR 4.71a, DC 5260 for limited flexion of the knee. Explanation:  Flexion of the knee would be assessed at 30 degrees, as the ROM estimated in the Mitchell assessment is the most advantageous representation of the Veteran’s limitation of flexion. Reference:  For more information on the Deluca and Mitchell holdings, see M21-1, Part V, Subpart iii, 1.A.1.c and e.

V.iii.1.A.4.f..  Evaluating Joints With Arthritis by X-Ray Evidence Only With Other Joint(s) Affected by a Non-Arthritic Condition

 Example: A Veteran is rated 10 percent for bilateral degenerative arthritis of the elbows confirmed by x-ray evidence, without limited or painful motion or incapacitating exacerbations.  The Veteran subsequently files a claim for SC for chondromalacia of the right knee and is awarded a 20-percent evaluation based on VA examination, which revealed limitation of flexion of the right knee to 30 degrees. Analysis:  A 10-percent evaluation for bilateral arthritis of the elbows and a separate 20-percent evaluation for right knee chondromalacia is justified.  In this case, the rating does not violate Note (1) under 38 CFR 4.71a, DC 5003, because the knee condition is not an arthritic condition. Reference:  For additional information on the principle in 38 CFR 4.71a, DC 5003, Note 1, see