DeLuca v. Brown: How Pain May Increase Your Disability Rating
If you have a service-connected disability, your VA rating is typically based on how much you can move the affected joints—or, what the VA refers to as range of motion. The range-of-motion system aims to provide a clear, objective way for the VA to measure the extent of Veterans’ disability. But, range of motion (ROM) measurements don’t always reflect the full reality of living with a disability or chronic condition. Pain, for example, often plays a huge role in limiting your ability to complete activities of daily living (ADLs). Yet, pain itself isn’t directly measured when the VA focuses only on range of motion.
This can be frustrating if you're a veteran dealing with recurring or constant pain that significantly affects your quality of life. Fortunately, a key court ruling—DeLuca v. Brown—recognized that your disability rating should account for more than just how far you can move your joints.
DeLuca v. Brown found that pain, weakness, and fatigue during flare-ups or with repetitive use must be factored into your disability rating. Although you can’t receive a VA disability rating for pain alone, DeLuca established that pain could contribute to a higher rating.
Here, we’ll break down what DeLuca v. Brown found, why it’s so important, and what it means for your own disability rating.
DeLuca v. Brown Explained
As we mentioned earlier, the VA has historically determined disability ratings for musculoskeletal conditions like back pain based on your range of motion (ROM) in the affected area. For example, if you have an injury affecting your knee, the VA would assess how far you could bend or straighten your leg. The ROM approach is intended to objectively gauge the extent of physical limitation caused by your injury or condition, assigning a rating based on the degree of movement you’ve lost.
However, while this system gives the VA a consistent way to measure aspects of Veterans’ disabilities, it ignores critical aspects of many veterans’ lived experiences—particularly pain, weakness, and other functional impairments that stem from the disability. The bottom line is that ROM tests don’t fully capture how pain can flare up or how repetitive movement can lead to weakness and fatigue over time.
As a result, many veterans were receiving ratings that didn’t reflect the full extent of their disability. DeLuca v. Brown changed that by requiring the VA to also consider the functional limitations caused by pain, weakness, and fatigue—especially during periods of increased symptoms, such as flare-ups. This ruling gave veterans a way to ensure their ratings more accurately represent their condition.
How Pain is Rated Under DeLuca v. Brown
Under the court’s findings in DeLuca v. Brown, the VA must consider pain when rating a Veteran’s disability. Even if your range of motion physically appears to be unaffected by the disability, the VA has to recognize that pain can limit your functional range of motion.
Under the DeLuca decision, examiners are to document pain. One of the most common ways this is done is by observing ‘guarding,’ or a Veteran’s resistance to move in a certain way, or apprehension at reaching a certain point of movement. Broadly speaking, the key change that occurred post-DeLuca was that the VA was forced to expand the definition of what it considers to be a functional limitation.
While there’s no hard-and-fast way to calculate how pain will impact a rating, here’s a hypothetical example:
Let’s say you have a disability that limits your range of motion in your knee. Your knee is stuck, bent stiffly between 20-45º, which would typically qualify you for a 50% disability rating when only considering range-of-motion. However, if moving your knee to that extent creates significant pain, you may be rated at a higher level, such as 60%, for example.
Functional Limitations Under DeLuca v. Brown
DeLuca created a much-needed distinction between your range of motion and your functional range of motion. As we just mentioned, you may be able to move your knee well enough to be rated at 20%, but if doing so causes significant pain, you’re not going to be using that full range of motion.
To account for that, C&P examiners must also consider how a wider range of factors including pain, weakness, fatigability, and incoordination functionally limit your actions. Let’s take a deeper look at how these factors are assessed.
Pain
In addition to recording your range of motion, C&P examiners must also account for any pain you experience during movement. That includes during ADLs, repeated use of the affected joint, and flare ups. Crucially, pain needs to be considered regardless of whether your disability limits your range of motion.
Weakness
Injuries and disabilities that lead to weakness in joints can dramatically limit your ability to perform ADLs. Things as commonplace as holding dinner plates, lifting groceries, and cleaning can become major challenges. Beyond just that, weakness can affect your fine motor skills too, potentially making other ADLs like getting dressed harder.
Under DeLuca, examiners need to go beyond range-of-motion measurements and assess muscle strength. Tools like a dynamometer can measure the level of force your muscles can generate, allowing your examiner to more accurately assess your ability to complete ADLs.
Fatigability (Tiring Easily)
Joint disabilities can also leave you feeling abnormally and excessively tired, even after minor exertion. Just as weakness and pain can limit your ability to accomplish ADLs, so can excessive fatigability. If you can’t continuously work a muscle or joint without weakness, it could have a serious impact on your ability to not only perform ADLs, but also to earn a living.
When you’re undergoing your C&P exam, your examiner should be asking you about your experience with fatigue, including how easily it’s triggered, how long it lasts, and how it impacts your life and livelihood.
Incoordination
DeLuca primarily focuses on pain and weakness, but the court clarified that incoordination—clumsiness and a lack of balance—should be considered as well, as it can be a direct result of weakness. Your C&P examiner should consider whether your injuries are impacting your coordination or otherwise functionally limiting you and your ability to accomplish ADLs, work, and otherwise enjoy your life.
Key Takeaways
Pain alone typically isn’t enough for a VA disability rating. However, pain can contribute to your disability rating, particularly in cases where pain limits your functional range of motion. Let’s review some key points on what you should know about getting the correct rating, taking pain into account.
1. Prepare for Your C&P Exam
Before your C&P exam, revisit this article to brush up on what your examiner should be asking you about. They should ask about your:
Pain, weakness, fatigability, and coordination
Any flare ups you’re experiencing
Your disability’s impact on your activities of daily living (ADLs)
If your examiner fails to request or record this information it could lead your rating to be incorrect, in which case an appeal would be necessary for getting the rating you deserve.
Finally, bring someone along for your C&P exam if possible. A spouse, relative, or close friend could be vital for corroborating any shortcomings on the examiner’s part in the event you receive an incorrect rating.
2. Use Buddy Letters
You’re the only one who experiences your pain, but that doesn’t mean it doesn’t impact other people. Buddy letters or lay statements are crucial pieces of evidence that illustrate how your life and the people around you have been impacted by your disability. Buddy letters are particularly important if your pain is not constant, but occurs frequently during flare-ups or grows weak easily. In this instance, your C&P exam might not adequately capture the pain or weakness you regularly experience, making buddy letters indispensable pieces of evidence certifying your disability’s impact on your life.
3. Be Ready to Appeal Your Rating If Your Pain Wasn’t Accounted For
Unfortunately, it’s not uncommon for VA examiners to fail to account for pain, weakness, and other factors that impact your affected area’s functional range of motion. If you were denied VA disability compensation, or believe that you received the wrong rating, it can be extremely frustrating.
On top of dealing with ongoing pain, the process of filing an appeal can be a daunting task, and it’s not always easy. However, if your condition is service connected, you should receive the compensation you’re entitled to, including compensation for pain.
Depending on your circumstances, a hearing before a Board of Veterans’ Appeals, a higher-level review or supplemental claim could help you receive the benefits you’re entitled to. To learn which type of appeal makes the most sense for your claim, contact me today to schedule a free case evaluation.
About Michael D.J. Eisenberg
Michael D.J. Eisenberg is a solo practitioner based in Washington, DC, advocating for veterans, military members and their families for over 17 years. He helps Veterans with VA benefits appeals, Military Members with medical boards and physical evaluation boards, and both Veterans and Military Members with military records correction issues.