UNITED STATES COURT OF VETERANS APPEALS

No. 91-1427

[James B. Voyles, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided September 1, 1993)

*Murrey L. Grider* for appellant.

*James A. Endicott, Jr.*, General Counsel, *David T. Landers*, Acting
Assistant General Counsel, *Pamela L. Wood*, Deputy Assistant General
Counsel, and *Sara B. Lake* for appellee.

Before MANKIN, HOLDAWAY, and STEINBERG, *Judges*.

MANKIN, *Judge*: Appellant appeals a June 10, 1991, decision of the
Board of Veterans\' Appeals (BVA or Board) which denied an increased
rating for residuals of a left femur fracture, currently evaluated as
10% disabling, and an increased rating for residuals of a compression
fracture at L1 and spondylolisthesis at L5-S1, currently evaluated as
10% disabling.

I. FACTS

Appellant had active service from June 1948 to July 1954, and from
October 1954 to January 1960. In July 1950, appellant was involved in a
serious automobile accident and sustained, among other injuries, an
injury to his lumbar spine. He was eventually granted service connection
for residuals of a left femur fracture and residuals of a compression
fracture at L1 and spondylolisthesis at L5-S1. In March 1968, the BVA
denied appellant\'s claim to increase his rating from 10% for each of
these service-connected disabilities. In June 1976, the BVA denied
appellant\'s claims for, inter alia, an increased rating for left femur
fracture, compression fracture of appellant\'s lumbar vertebrae, and
spondylolisthesis. In addition, the Board denied a total rating based on
individual unemployability due to his service-connected disabilities.

In April 1989, appellant submitted to a Department of Veterans Affairs
(VA) medical examination of his lower back, neck, shoulder, left hip,
and neck. The examining physician noted mild pain when appellant reached
the limits of motion and when he lifted objects. Appellant walked with a
slight limp and did not use an aid. No atrophy was detected. The
diagnosis was \"status p\[ost\] fracture left hip with mild degenerative
changes.\" An x-ray of appellant\'s spine revealed decreased density,
minimal compression deformities, and first degree spondylolisthesis at
L5-S1. In April 1989, the regional office (RO) denied appellant\'s claim
for increased evaluations for his service-connected disabilities.

In February 1990, a personal hearing was held at the RO. Appellant gave
sworn testimony that he experienced pain extending from his lower back,
to his left leg, and down to his ankle. He stated that the pain
interfered with his breathing and prevented him from lifting. Appellant
testified that during the previous year he had experienced about four
episodes of severe back spasms. He also stated that he currently
experienced constant low back pain, which increased with prolonged
sitting or standing, and that, although he was able to bend his back, he
had difficulty straightening back up. Appellant was fitted with a corset
brace which he customarily wore \"from time to time\" when his back
ached.

In March 1990, appellant was examined by a VA orthopedist. He complained
of constant lower back pain which radiated down his left lower
extremity. The physician noted that appellant walked without a limp and
without assistive devices. Active flexion of the lumbar spine was ninety
degrees. He was able to bend at the waist twenty degrees to the left and
right. Active flexion of the hips was one hundred degrees, with complete
extension of both hips. In November 1990, appellant sought an
independent evaluation from Edmund LaCour, M.D. A medical examination
report reflects complaints of increasing back pain due to lifting and
strenuous activity. Appellant reported constant pain in his left thigh.
Dr. LaCour observed that his gait was punctuated with a \"very mild
limp\" favoring the left leg. Flexion of the back was normal and
extension was only mildly reduced. When appellant bent forward at the
waist, he was able to touch just below the knee bilaterally. There was
prominent muscle spasm and tenderness in the paralumbar musculature at
the L4-L5 area, particularly on the left side. Dr. LaCour\'s assessment
was: (1) cervical spondylosis and (2) \"low back pain with occasional
radiation into the lower extremity. The patient may have nerve root
compromise on the left or possibly have a recurring pyriformis
syndrome.\"

II\. ANALYSIS

In its decision now on appeal, the BVA found that during the 1990 VA
examination, appellant\'s hips exhibited flexion to one hundred degrees
with complete extension, and that he could flex the lumbar spine forward
to ninety degrees out of ninety five degrees. Based upon these factual
findings, the BVA concluded that appellant did not meet the schedular
requirements for ratings in excess of 10% for each of his
service-connected disabilities. In light of the frequent references in
the record to the veteran\'s complaints of pain, and despite his failure
to raise the issue of the applicability of regulations related to pain,
the BVA was required to consider the applicability of 38 C.F.R. § 4.40
(1992) and § 4.45(f) (1992). *See Quarles v. Derwinski*, 3 Vet.App. 129,
139 (1992); *Schafrath v. Derwinski*, 1 Vet.App. 589, 593 (1991);
*Hatlestad v. Derwinski*, 1 Vet.App. 164, 167 (1991); *see also*
*Douglas v. Derwinski*, 2 Vet.App. 435, 438-40 (1992) (en banc). Section
4.40 states, in pertinent part, that it is \"essential that the
examination on which ratings are based adequately portray . . . the
functional loss\" affecting the parts of the body subject to the
disability. 38 C.F.R. § 4.40. The regulation further provides that
functional loss may be due to \"pain, supported by adequate pathology
and evidenced by the visible behavior of the claimant\" and that a part
of the musculoskeletal system \"which becomes painful on use must be
regarded as seriously disabled.\" *Id.* In addition, 38 C.F.R. § 4.45(f)
states that in order to determine the factors causing disability of the
joints, which includes the lumbar spine, the inquiry must be directed
toward, inter alia, \"\[p\]ain on movement.\" Thus, in this case, it was
necessary for the BVA to address both the existence and extent of
appellant\'s pain, as well as any limitation of motion due to his
service-connected disabilities. Under the regulations, the \"functional
loss due to pain is to be rated at the same level as the functional loss
where flexion is impeded.\" *Schafrath,* 1 Vet.App. at 592.

The Board\'s decision fails to consider or discuss how regulations 4.40
and 4.45(f) apply to the facts presented in this case. Although
appellant\'s complaints of pain appear throughout the record, including
his sworn testimony in 1990 that he experienced constant back pain, the
Board failed to mention the extent of any functional loss due to pain
with regard to his service-connected disabilities. While the reports of
the March 1990 VA examination and the November 1990 examination by Dr.
LaCour noted the veteran\'s complaints of pain, they did not discuss the
impact of any pain on the functional loss in appellant\'s low back and
hip. In its decision the Board specifically noted the limitation of
motion found during the March 1990 VA examination; however, it failed to
make any findings as to the extent of appellant\'s pain on motion. Thus,
not only did the Board fail to analyze the effect of his pain on his
disability, it also relied on a VA medical examination which failed to
adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which
ratings are based adequately portray functional loss due to pain, and
determine whether pain \"was evidenced by the visible behavior of the
claimant,\" as described in 38 C.F.R. § 4.45(f). *See Quarles,* 3
Vet.App. at 140.

III\. CONCLUSION

It is the duty of the BVA, not the Court, to assess the credibility of
the veteran\'s sworn testimony and to address appellant\'s complaints of
pain to determine functional loss under 38 C.F.R. § 4.40. *Moyer* *v.
Derwinski*, 2 Vet.App. 289, 294 (1992); *Schafrath*, 1 Vet.App. at 593;
*Ferraro v. Derwinski*, 1 Vet.App. 326, 330 (1991); *Hatlestad*, 1
Vet.App. at 167. Thus, the BVA decision is VACATED and the matter
REMANDED for a determination of whether appellant is entitled to an
increased rating for his service-connected left femur fracture residuals
and for his residuals of a compression fracture at L1 and
spondylolisthesis at L5-S1 based on functional loss due to pain. If
adequate pathology is not present in the record for the BVA to reach a
determination, the Board shall order a medical examination, upon which
it shall base its ultimate conclusions. *See Green v. Derwinski,*
1 Vet.App. 121 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.59, 4.70 (1992).