know it must be considered in conjunction with the general reading schedule or question is whether pain alone can be a basis for rating although the government disagrees we argue that yes it can be as a basis for a rating can justify a rating well that's your position but the question which is a very good ruling is what is the relationship the suing for forty and the rest of the overall cost of the functional loss is mainly focuses on limitation of motion for the muscular skeletal system but four point four four point zero was put in place because the recognize that limitation of motion is not the only basis for functional loss and so in cases where the pain is not considered as part of the general reading schedule which is the situation for most these must skeletal diseases the co the v a is required to additionally consider section four point four zero to see whether there is any additional bases for functional loss such as pain lack of insurance lack of coordination lack of speech and that situation we have here mr thompson requested additional rating for functional last week or conceded that he did have in fact additional function lost to the pain but essentially created a litmus test that had left this functional off through the pain resulted very definition of functional loss due to pain requires that the veteran be able to undertake the motion to demonstrate the pain the v a s interpretation is the opposite they say the pain have to be such that the veteran cannot undertake the motion the regulation also states that a body part that becomes painful quote on use must be considered seriously disabled the phrase on use clearly means pain during the use not pain that prevents use which is what the v a would argue the regulation also says that weakness which is another one of the bases for functional lost is quote as important as limitation of motion which again makes clear that limitation of motion is not the sole criterion of thomas disability rating should be based on the v interpretation of section four point four zero would essentially rewrite that section to mean that pain and weakness and the other elements of functional lost are only important to the extent they limit the range of both and one of the threshold amounts in the general actually limited the veterans frames of motion to one of those threshold levels in the general schedule but of course in that case the veteran would already be entitled to that higher rating faith based on the range of motion analysis alone there would never be a need to evaluate pain as part of a ratings decision which is contrary to section four point four zero as an example of a veteran went in for a medical examination and complained of excruciating pain while bending forward under the agents or potations of the physician can simply ignore it and say pain is not relevant all that matters is the objective limit of your emotion whether that caused by pain or by a muscle a muscular problem or via skeletal problem or because of the nerve damage is irrelevant under the v a s interpretation all that matters is that objective limit which is going to control the rating that's not a four point four zero says that in fact it renders section four point four zero redundant and of course discordant supreme court is that said that regulations and statute should be construed as possible to preserve to avoid redundancy certainly a veteran's regulation should not be interpreted in a way that makes it impossible for any veteran to actually take advantage of the very benefit that the regulation was intended to  confer here any reasonable interpretation of section four point four zero makes clear that for the musculoskeletal to skeletal skeletal diseases that a rating to not be based soley on a range of motion it must also take into consideration veteran friendly regulation by creating this litmus test whereby all claims of functional loss would have to go through the widgets of limitation of motion now vs grade three arguments in support of the  decision below and i'd like to briefly address each of those first the da argues that the diagnostic codes for spinal injuries which replicable to mr thompson here already take pain into consideration because in the preamble of those diagnostic o's is the phrase quote with or without symptoms such as pain now it's worth noting that the a never raise that argument below and i believe that was for a good reason namely the veteran the veterans court has already considered and rejected that specific argument in the battle of the shinseki case which we cited in our gra in ballard the veterans board held that section four point four zero and that functional loss due to pain provisions must be considered in conjunction with ratings on spinal injuries just like every other type of muscular the fact is the phrase with or without pain without with or without symptoms such as pain means that pain is not a consideration in those ratings decisions for instance two veterans who have the same limited motion but very different literally is not a consideration in that rating schedule that's why the veteran support has consistently held that section four point four zero and the functional off to pain provision must be considered in conjunction with spinal some kind to me your argument is there doesn't have to be any type of loss in range of motion if pain is enough i mean just that can be one hundred percent range of motion but if in the on four point four zero your argument rests entirely on four point four zero but for the request for the increase ratings yes my only point was when you asked me earlier as the v a addresses injuries it does consider both the general schedule and section four point four zero the general schedule can give you a rating based on limitation of motion which which is what happened here is twenty percent rating based on this hundred ten degree combined range of motion but then you have to consult four point four four point four zero and maybe i didn't address your your your question correctly before but four point four zero is a standalone basis for increasing that rating based on other types of functional loss range of motion is only one type of function awesome in terms of range of motion no no functional off doesn't have to include range of motion that's the whole point of section four point four zero the last sentence says a part that becomes painful odd prensky beyond use must be sixty six degrees primarily the severe infection caused by his pain and that's the whole point of section four point four of the veterans court never even looked at that evidence because of a virus court created an artificial wicket where it said we're only going to look at range of motion but that's only one of five different types of functional laws that are spelled out in section four point four of that's where the error here is the court around asli limited section four point four of the just one type of functional here is that the court should follow the so called fenderson standard fenderson was a decision from the lower court but even in the vendors and there was no evidence of any loss of the range of motion the only evidence was offenders and had foot pain and the foot pain prevented him from engaging in certain daily activities such as playing sports and standing in place for a prolonged period of time here we have that same sort of evidence fenderson didn't rip didn't depend or didn't show any loss of range of motion and yet that was still considered to be a functional loss due to pain i would like to reserve the remainder of my time  from the veterans court that defense court simply did not make basically mr thompson is arguing that the families were created a rigid unforgiving task it's impossible for veterans to back that this is not the holding specifically the court says the court's findings here is simply that the board did not err in finding that conceded an additional functional loss due to pain if not compensable and beyond the disability well if weakness brought on by our pain your honor yes the individual still moving against absolutely and your honor let me explain to you what the purpose of for forty service here because we do have a diagnostic code for seventy one and for the however the examiner requests that mr thompson continue and to do repetitive motions on further exams mr thompson was only able to get the fifty percent which is force and would entitle him to a twenty percent disability rating a strict interpretation of four seventy one ad which says that one receives a rating with or without me mr thomson should have walked away with a ten percent rating that day because he was able to reach sixty five percent however he was r loss that's one for forty kicks in and that was going on you're exactly right for forty did help mr thompson already that's what the board went circling back to my original statement here this is what the holding of the veterans court was simply that the boards are not fair and finding the conceded additional functional last which is the change from sixty five degrees to fifty degrees did not a foreign dish and all rating the reason why  he that change that from fifty to sixty five to fifty would entitle him to a twenty percent disability rating which is what he received for two thousand and two two thousand a lot of the time period that we're discussing is that so this is something that mr thompson is skipping over in his brief rating system is very clear from mr thompson's spine injury it must implement range of motion whether that's functionally or actually as we discussed earlier on or we can take a look at a better same case and by the way we do not advocate a different standard coming from venice and we just believe face yes which is an injury on the bottom of but now he could walk he could run he could play basketball however the problem that they have every square point out was that he was limited in the time if you that ten minutes fifteen minutes and could only reach fifty degrees that's a fifteen degree difference because of the pain could be presumably because of the pain yes whether it's pain weakness or some other type of cause and function loss doesn't really matter if he did have functional lo limited question before the court discusses ratings in terms of limitation on motion so the functional last pass to affect motion when we're talking about the spine now is a veteran out of luck when they're out of pain but reach a certain degree then you get this reading certain degree you get barry if the individual could move to ninety degrees under for seventy one ack with or without pain they're entitled to zero but they walk away with out a disability rating that's exactly this is why for forty years right but for forty gives this individual is from forty five degrees in your example to ninety that individual was in excruciating pain and if you functionally limited from making now let's talk about mr thompson and i apologize i'm over here so i'll just finish the example in your eyes i mean for the questions mr thompson could reach sixty five degrees a guy so under for something what with or without pain he would be entitled only ten percent the exact or ask him to take the test again and do it again after quite a motion he could only reach fifty degrees which is worse this is where he was he was rated at twenty percent under four seven want to say he should have gotten sixty five degrees a ten percent before forty applied to give him twenty percent to actually raise him there so that is a conceited additional just a couple of points what's wrong with his interpretation of for for these are several things wrong first of all mr thompson did not benefit from section four for this idea that he was his twenty percent rating he was already entitled to that based on his combined motion of a spine which is a combined forward back left right type of combination being less than one hundred twenty degrees there's no evidence that his rating was based in any different things where mr thompson is severely impacted in his daily life including things like bathing and toileting far in excess of what the situation was in fenderson and yet in this case the very support they need to look at that happens because the only look the court only looked at his range of motion yes the v a says that the holding is very narrow and he cited to particular sentence on page eight thirteen but there's other senses on page eight thirteen that are not narrow at all period that's the analysis at the end that's the sum total of the court announces it is very clearly equating is a basically plate placing a litmus test on all claims for functional office and saying you have to meet the range of motion limitation in the rating showing of any type a limitation of motion functional rather wild but to be clear the court's decision here didn't have anything to do with functional limitations on motion the work functional is not in that it was based on his actual limitation of motion