Clemons v. Shinseki, Feb 17, 2009, 23 Vet.App. 1

The Court held that a service connection claim that only identifies posttraumatic stress disorder (PTSD) cannot only be limited to that diagnosis, but must be considered a claim for any mental disability that may be reasonably raised by several factors, to include the Veteran's description of the claim and/or symptoms and any information and evidence submitted by the Veteran or obtained by VA.

The Court explained that because a Veteran was reasonably requesting benefits for symptoms of a mental condition that he was not competent to medically identify, the adjudication of the claim does not end in the face of currently diagnosed mental conditions that are different from his lay hypothesis on the claim form. The Court noted that it is generally within the province of medical professionals to diagnose or label a mental condition, not the claimant.

VA cannot limit the scope of the claim only to the condition stated, but rather the claim is for any condition that may reasonably be encompassed by several factors, including:

• the Veteran's description of the claim,
• the symptoms the Veteran describes, and
• the information the Veteran submits or that VA obtains in support of the claim.

As the Court held in Clemons v. Shinseki, VBA cannot expect the Veteran to articulate with medical precision an exact description of a clinical condition.

This means the appropriate C&P examiner must evaluate all claimed mental and physical conditions listed by VBA on a Request for Examination. If an examiner determines that an actual condition is different than the claimed condition, but clinically in the realm of the symptoms described by the Veteran, the examiner must evaluate the actual condition.

Correia v. McDonald, Jul 5, 2016, 28 Vet.App. 158

The Court held that the final sentence of 38 CFR 4.59 requires that certain range of motion testing be conducted whenever possible in evaluating joint disabilities.

The last sentence of 38 CFR 4.59 reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."

Correia v. McDonald asks the C&P examiner to address the opposing joint in contrast to the affected joint for evidence of pain with non-weight bearing and passive range of motion.

DeLuca v. Brown, Sep 22, 1995, 8 Vet.App. 202

The Court held that in evaluating a service-connected left shoulder disability, the Board of Veterans' Appeals erred in not adequately considering functional loss due to pain under 38 CFR 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 CFR 4.45. When a diagnostic code provides for compensation based solely on limitation of motion, the provisions of 38 CFR 4.40 and 4.45 must also be considered.

The Court also held that the medical examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time. This was to be reported in terms of the degree of additional range of motion lost due to pain on use or during flare-ups.

As an examiner, you are expected to provide an opinion concerning pain limiting functional ability during flare-ups or repetitive use.

Mitchell v. Shinseki, Aug 23, 2011, 25 Vet.App. 32

The Mitchell case is a clarification of DeLuca (DeLuca v. Brown, Sep 22, 1995, 8 Vet.App. 202) and states that when there is pain noted on range of motion (ROM), or a history of pain associated with flare-ups or repetitive use of the joint, the pain itself could limit function of that joint. Therefore, looking only at the loss of function associated with three repetitions of range of motion in a person with pain on testing may not always be an accurate indication of loss of function due to pain associated with repetitive use.

The court in the Mitchell case also states that loss of function due to pain during flare-ups must be addressed. It is important to note that many times the subjective component of a claimant's history will play an equal, if not larger, role than objective findings on examination.

Two things should prompt an examiner to address the issues raised by the Mitchell case:

1. the claimant's complaints of pain associated with repetitive use of the joint, based on history and not dependent on objective findings of pain with repeated ROM testing
2. the claimant's reports of flare-ups

Saunders v. Wilkie, Apr 3, 2018, 886 F. 3d 1356

The Federal Circuit held that the Veterans Court (in Sanchez-Benitez v. West, 13 Vet.App. 282 (1999)) erred as a matter of law in finding that the Veteran's pain alone, absent a specific diagnosis or otherwise identified disease or injury, cannot constitute a disability under 38 USC 1110, because pain, even in the absence of a presently diagnosed condition, can cause functional impairment:

• The Federal Circuit held that the term "disability" under 38 USC 1110 refers to the functional impairment of earning capacity, not the underlying cause of such disability.
• The Federal Circuit further held that pain alone, even in the absence of a diagnosis, can serve as a functional impairment and qualify as a disability under section 1110, irrespective of the underlying cause.
• The Federal Circuit clarified that it did not hold that a Veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, as the Veteran's pain must amount to a functional impairment. To establish the presence of a disability, a Veteran needs to demonstrate that the pain reaches the level of a functional impairment of earning capacity.

As a result, the examiner must report the functional impact of a Veteran's pain, even if only pain is found.

Sharp v. Shulkin, Sep 6, 2017, 29 Vet.App. 26

In Sharp v. Shulkin, the Veterans Court held that although an earlier case, Jones v. Shinseki (2010), allowed VA to accept a C&P examiner's statement that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation, that statement is only acceptable if is not based on the absence of procurable information, a particular examiner's shortcomings, or a general aversion to offering an opinion on issues not directly observed.

This decision impacts C&P evaluations of musculoskeletal conditions, as the Sharp v. Shulkin decision specifically mentioned "musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees, ankles, feet, and hands, as well as muscles," when applying this standard.

The Court held that an examiner's statement must not be based solely on the fact that the C&P examination was not performed during a flare-up when saying that an opinion about the functional impact of flare-ups on a condition cannot be provided without resorting to speculation.

Instead, the examiner must consider all procurable information and assembled data before stating that he or she cannot provide this opinion. The examiner must explain why the opinion is not possible without resorting to speculation and demonstrate having considered medical treatment records, lay testimony, or both. Furthermore, this statement must not be based on an examiner's insufficient knowledge, but on a lack of knowledge among the medical community at large.