EVALUATING LIMITED RANGE OF MOTION (ROM) CAUSED BY PAIN
Disabilities affecting body movement, especially back and neck injuries, are all too commonly mishandled by VA examiners and adjudicators. Since the VA Rating Schedule is based upon functional loss, proper measurements of loss of range of motion (ROM) of the are central to the development and adjudication of back (lumbar spine), neck (cervical spine) and other orthopedic claims. In particular, accurate measurements of forward flexion (bending forward) and extension (straightening of the body part) are the most important.
This blog talks about limitation of ROM due to pain, and what VA examination reports must document, and what VA adjudicators must look for and ensure.
The Deluca Factor
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court of Appeals for Veterans Claims (“the Veterans Court”) set forth one of the most important principles of VA adjudication, known as the DeLuca factor: A veteran’s limitation of ROM due to pain, including during a flare-up, must be considered for a higher disability rating.
This means that a VA examiner must measure and document a veteran’s capacity for ROM during pain. And, if the examiner fails to make this measurement, then the VA adjudicator must send the report back to the examiner, requesting that he do so. A VA examination which does not account for limitation of ROM due to pain is per se inadequate.
Evaluating and Rating Disability During a Flare-up
Flare-ups, by definition, are intermittent spikes of the baseline pain level of a disability. In other words, flare-ups are the exception to the general baseline level of pain. No surprise then that when veterans undergo a VA examination, they will most likely not be experiencing a flare-up. Does that mean that, in the absence of present flare-up, most veterans will lose out on a higher rating for loss of ROM? No.
Admittedly, it would be difficult and impractical for the VA to attempt to schedule examinations at the same time veterans are experiencing a flare-up. But there is a practical solution to this predicament. In Sharp v. Shulkin, 29 Vet.App. 26 (2017), the Veterans Court held that, if a veteran is not experiencing a flare-up during the examination, the VA examiner must give his/her best estimate of the loss of ROM due to flare-ups:
DeLuca and its progeny clearly ... anticipated that examiners would need to estimate the functional loss that would occur during flares,.... The critical question in assessing the adequacy of an examination not conducted during a flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. Id. at 34.
In so doing, the examiner must ask the veteran to provide relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares...” Id. at 35.
Ankylosis
Ankylosis is generally defined as a complete stiffness of a joint due to abnormal adhesion and rigidity of the bones of the joint. There are two types of ankylosis: unfavorable and favorable ankylosis. Unfavorable ankylosis denotes a fixed spinal column in flexion or extension, whereas favorable ankylosis refers to a fixed spine in a neutral position.
Typically, ankylosis is seen when the bones of a joint are physically fused. However, in Chavis v. McDonough, 34 Vet.App. 1 (2021), the Veterans Court recognized the functional equivalent of ankylosis: i.e., when loss of ROM is so great as to render the body part functionally immobile. That is to say, even though a body part, such as a back or neck, is not physically locked together, severe pain or other symptomology may effectively lock it in place, rendering it functionally equivalent to ankylosis.
As with other types of limitations of ROM, functional ankylosis must be considered by VA examiners and adjudicators in cases of severe pain. Again, VA examiners should elicit information from the veteran as to his/her capacity for movement during a flare-up and document this measurement in the examination report.
