Bulletin: Painful Motion and Flareups

Bulletin August 2015

In theory, the VA rating schedule is based upon the veteran’s loss of earning capacity caused by a service-connected disability.  The VA compensates the veteran due to the loss of capacity to earn income.  Functional impairment is one of the most obvious factors that affect the loss of earning capacity. If a service connected disability impairs the veteran’s ability movement, strength, coordination, speed or endurance, the veteran has less earning capacity. see 38 C.F.R. § 4.40.

In performing C&P examinations and writing reports, many VA examiners frequently overlook or incorrectly measure functional impairment caused by pain and especially the pain and loss of motion during flare-ups (times in which the pain or disability is particularly bad). When a veteran has pain during motion, say, during flexion or extension of the lumbar spine, the examiner must measure and discuss in his report any additional loss of range of motion associated with the pain.  Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011).

Many times, a veteran’s pain (or the worst pain) occurs during flare-ups and often, flare-ups are not occurring at the time of a C&P examination.  When reviewing the C&P exam, a VSO should look for two things (1) If there is pain with motion, measurement of where the pain starts (2) VA examiner must ask a claimant to describe in his/her own words the limitation of movement or other functional impairment caused by a flare-up.  For example, a claimant should be prepared to tell the examiner just how much less he/she can bend the back or move an arm during flare-ups. If neither of these exist, it is cause for challenging the C&P exam.

Remember, in carrying out its duty to assist, the VA must do more than provide an examination – it must provide an adequate one.  If the C&P exam is inadequate, a VSO can then identify the inadequacy to the VA and request that a new exam be scheduled.