PLAGER, Circuit Judge.
This is a veterans case. Wade G. Thompson appeals a judgment of the Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed a decision of the Board of Veterans' Appeals ("Board") denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court's decision was based in part upon its interpretation of 38 C.F.R. § 4.40 in light of § 4.71a.
Thompson's appeal raises a question of first impression: Does § 4.40 provide a basis for a rating separate from § 4.71a? The answer is no; we affirm the judgment of the Veterans Court.
The Schedule for Rating Disabilities, 38 C.F.R. part 4, is divided into two subparts: Subpart A "General Policy in Rating" and Subpart B "Disability Ratings." Subpart B contains several headings, including "The Musculoskeletal System," "The Digestive System," and "The Respiratory System." Under each such heading, there is at least one section specifying disability ratings relevant to that particular heading.
Under the musculoskeletal system heading, at issue here, there are two sections that explicitly list ratings, 38 C.F.R. §§ 4.71a ("Schedule of ratings—musculoskeletal system") and 4.73 ("Schedule of ratings—muscle injuries"). In addition to these ratings sections, there are several sections that do not explicitly list ratings but discuss general principles concerning ratings for the musculoskeletal system or particular parts thereof. See, e.g., id. §§ 4.40 ("Functional loss"), 4.41 ("History of injury"), 4.42 ("Complete medical examination of injury cases"), 4.43 ("Osteomyelitis"), 4.45 ("The joints"), 4.46 ("Accurate measurement").
Section 4.40, entitled "Functional loss," states:
Id. § 4.40.
One of the two specific ratings sections, § 4.71a, addresses the spine and dictates that a veteran is entitled to a 20% disability rating if there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or if the combined range of motion of the
We detail the background of Thompson's case only as necessary. A more complete background is set forth in the opinion of the Veterans Court. See Thompson v. McDonald, No. 13-1633, 2014 WL 4239747 (Vet.App. Aug. 28, 2014). In brief, Thompson served in the United States Marine Corps from May 1992 to November 1993. He sustained a back injury while on active duty and was honorably discharged for medical reasons in 1993.
On March 28, 2008, the Department of Veterans Affairs ("VA") received Thompson's claim for disability benefits for low-back disability. As a result of a series of VA Regional Office ("RO") decisions, Thompson was assigned a 20% rating for service connected degenerative disc disease of the lumbar spine, applicable for the period from June 1, 2008 to March 8, 2011.
Thompson disagreed with the 20% rating, and appealed to the Board. The Board denied Thompson entitlement to a rating in excess of 20%. As a factual finding, the Board determined: "Prior to March 8, 2011, the Veteran's service connected degenerative disc disease of the lumbar spine did not cause forward flexion of the thoracolumbar spine of 30 degrees or less . . . ." J.A. 23. The Board stated that "forward flexion of the thoracolumbar spine was not 30 degrees or less, even considering limitation caused by pain, fatigue, and other factors." J.A. 33. The Board observed that, upon examination, Thompson had forward flexion of the lumbar spine from 0 to 65 degrees, with pain throughout the range of motion, and that, after repeated testing, forward flexion was only from 0 to 50 degrees.
The Board reasoned that, under Mitchell v. Shinseki, 25 Vet.App. 32 (2011), pain, by itself, does not constitute a functional loss entitling a veteran to a higher rating "under VA regulations that evaluate disability based upon range-of-motion loss in the musculoskeletal system." J.A. 33. The Board quoted the statement in Mitchell that "`pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed coordination, and endurance in order to constitute functional loss.'" J.A. 33-34 (quoting Mitchell, 25 Vet.App. at 43). The Board concluded that Thompson's pain failed to cause "sufficient functional impairment to limit the flexion of the thoracolumbar spine to 30 degrees or less, as is required for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine." J.A. 34.
As a legal conclusion, the Board determined that: "The criteria for an initial disability rating in excess of 20 percent for service connected degenerative disc disease of the lumbar spine prior to March 8, 2011 have not been met." J.A. 23. In support of that conclusion, the Board cited 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a; and Diagnostic Codes 5003, 5010, 5235-5243. As the Board viewed it, the discussion of functional loss under § 4.40 did not supersede the requirements for a higher rating specified in § 4.71a.
The court reasoned that, because the conceded additional functional loss due to pain did not limit Thompson's forward flexion to 30 degrees or less, it did not warrant a higher rating. The court stated:
J.A. 13.
The Veterans Court entered judgment based on its decision, and Thompson appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.
Our review of Veterans Court decisions is limited by statute. See 38 U.S.C. § 7292. We possess "exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof. . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." Id. § 7292(c). We must decide all relevant questions of law and hold unlawful and set aside regulations or interpretations thereof—besides factual determinations—that were relied upon in the Veterans Court decision and are "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law." Id. § 7292(d)(1). We may not review a challenge to a factual determination or law or regulation as applied to the facts, unless a constitutional issue is presented. Id. § 7292(d)(2). We review Veterans Court decisions regarding issues of law without deference. Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed.Cir.2009).
"To interpret a regulation we must look at its plain language and consider the
Section 4.40 speaks generally in terms of disability of the musculoskeletal system, and explains what may cause a functional loss. The section defines disability of the musculoskeletal system as "primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40.
Section 4.40 also mandates that "a part which becomes painful on use must be regarded as seriously disabled." Id. Yet, the section provides no explicit rating for such disability. Instead, the section explains that "functional loss . . . may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." Id. It also explains that "[w]eakness is as important as limitation of motion." Id.
In discussing disability of the musculoskeletal system, the section focuses on the "normal working movements of the body" in terms of several elements, including normal excursion. The section also mentions pain. It speaks to pain (in terms of use) as capable of rendering a part of the musculoskeletal system or body seriously disabled. However, despite its discussion of pain, disability, and functional loss, § 4.40 never explicitly lists any actual disability ratings.
We read the words of a regulation in their context and with a view to their place in the overall regulatory scheme. See Mass. Mut. Life Ins. Co. v. United States, 782 F.3d 1354, 1365 (Fed. Cir.2015) (noting that we apply the same interpretive rules for analyzing regulations that are used for analyzing statutes); Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) (noting that the words of a statute are read in context and with respect to the overall statutory scheme). See also United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).
Read together, the absence of any explicit ratings in § 4.40 makes sense. In promulgating 38 C.F.R. part 4, the VA carefully located § 4.40 and similar guidance under the umbrella heading of the musculoskeletal system. The VA also clearly included separate sections explicitly listing relevant disability ratings. See 38 C.F.R. §§ 4.71a, 4.73. Given this regulatory framework, it is clear that the guidance of § 4.40 is intended to be used in understanding the nature of a veteran's disability, after which a rating is determined based on the § 4.71a criteria.
This is confirmed by the language of § 4.40 itself. That section focuses upon disability in terms of the body's "normal working movements." This is understandable in light of the range of motion thresholds
So understood, the Veterans Court's legal interpretation in this case was proper. Because there is no error of law in the Veterans Court's judgment, and because we cannot review the court's application of the law to the facts, we must affirm.
For the foregoing reasons, we affirm the judgment of the Veterans Court.
No costs.