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3.1. Rating

Generally, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined.  38 C.F.R. § 4.25; Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, "[t]he rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  To rate a disability twice or more "would overcompensate a claimant for the actual impairment of his earning capacity" and would constitute the pyramiding of disability ratings, prohibited by 38 C.F.R. § 4.14; Brady, 4 Vet. App. at 206.  Such evaluation of the "same disability" or the "same manifestation under different diagnoses is to be avoided."  38 C.F.R. § 4.14. 

In other words, if a veteran has been diagnosed with more than one disorder and various DCs are at issue, separate disability ratings may not be used if the various DCs are duplicative of each other or involve overlapping symptomatology.  On the other hand, if the DCs at issue involve separate and distinct symptomatology, the veteran may be entitled to have his multiple disorders rated under the various DCs.  See Esteban, 6 Vet. App. at 261 (holding that because none of the symptomatology for appellant's three conditions was overlapping or duplicative, the appellant was entitled to separate ratings for each condition).  VA's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet. App. 80, 84 (1997).

VA regulations state that "where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned."  38 C.F.R. § 4.7.  The regulations also caution that "it is not expected . . . that all cases will show all the findings specified in the [applicable DC]."  38 C.F.R. § 4.21.  In Mauerhan, the Court held that the symptoms listed in DC 9411 are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  16 Vet. App. at 442.  The Court concluded that "any suggesting that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation."  Id.  Therefore, the Board's consideration of the evidence in assigning a disability is "not restricted to the symptoms provided in the diagnostic code."  Id. at 443.  The assignment of a disability rating is a factual finding that the Court reviews under the "clearly erroneous" standard of review.  Johnston v. Brown, 10 Vet. App. 80, 84 (1997). 

The Court may set aside the Board's selection of a diagnostic code only if such selection is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  38 U.S.C. § 7261(a)(3)(A); Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  When a veteran is found to have a service-connected disability that does not fall under an existing diagnostic code, the unlisted condition may be rated "under a closely related disease or injury in which not only the functions affected, but [also] the anatomical localization and symptomatology[,] are closely analogous."  38 C.F.R. § 4.20.  The Board must provide an adequate statement of reasons or bases for its selection of a diagnostic code.  See 38 U.S.C. § 7104(d)(1); Suttman v. Brown, 5 Vet. App. 127, 133 (1993); Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992).  The Board's statement is adequate if it enables a claimant to understand the precise basis for the Board's decision and facilitates review in this Court.  Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

In DeLuca v. Brown, the Court held that 38 C.F.R. sections 4.40 and 4.45 require that the disabling effect of painful motion must be considered when rating joint disabilities.  8 Vet. App. 202, 205-206 (1995).  Pursuant to section 4.40, "[d]isability of the musculoskeletal system is 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. Further, under section 4.40, functional loss "may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled."  With regard to the joints, section 4.45 provides that "the factors of disability reside in reductions of their normal excursion of movements in different planes."  38 C.F.R. § 4.45.

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