Saunders v. Wilkie, Case Number 2017-1466, decided April
3, 2018 by the Court of Appeals for the Federal Circuit considers whether pain
alone, without a specific diagnosis or otherwise identified disease or injury
can constitute a disability under 38 USC 1110.
Factually, the veteran developed knee pain while in the military
and was diagnosed with patellofemoral pain syndrome and on her exit examination
a history of swollen knees was noted. The
claim was denied, but reopened and a VA examiner diagnosed the veteran with
subjective bilateral knee pain and found that this pain led to (1) increased
absenteeism and (2) effects on her ability to complete daily activities. The
examiner also concluded the knee condition was at least as likely as not
caused by, or a result of, her military service.
The VA later explained that “pain” could not be provided as
a diagnosis for a knee condition, and requested a complete rationale for the
diagnosis. In a supplemental report, the examiner stated there was no pathology
to render a diagnosis on the condition, and noted that the theory of causation was
based on the chronology of events during service. After reviewing the
supplemental report, the RO once again denied Saunders’s claim because, in its view,
Saunders had not demonstrated a currently diagnosed bilateral knee condition
linked to military service.
The Board concluded the veteran failed to show a present
disability and denied.
On appeal to the Veteran’s Court, the veteran argued the
Board erred in its interpretation of what constitutes a disability. The Veteran’s Court denied her argument
finding that, in Sanchez-Benitez v.
West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitz I), it stated that it
“holds that pain alone, without a diagnosed or identifiable underlying malady
or condition, does not in and of itself constitute a disability for which
service connection may be granted.”
On appeal to the Court of Appeals for the Federal Court, the
parties disagreed on the court’s jurisdiction to hear the case and the conclusion
that pain alone can constitute a disability under 38 USC section 1110.
Regarding jurisdiction, the noted its narrow jurisdiction,
but found this case clearly fell within its scope of review because it is a
clear question of law. The Secretary
tried to muddy the issue by saying the veteran failed to challenge some factual
findings about the knee pain. The Court
concluded by stating:
there is no real dispute between the
parties that the Board and Veterans Court resolved Saunders’s claim based
solely on the holding of Sanchez-Benitez I, and our failure to overturn that
holding in Sanchez-Benitez II. The
critical questions, thus, in resolving Saunders’s challenge are legal in
nature—we must determine whether: (1) our decision in Sanchez-Benitez II
requires a finding that pain cannot be a disability under the meaning of §
1110; and (2) if Sanchez-Benitez II does not require that conclusion, the
statutory language instructs or permits finding that pain can serve as a
disability. These are questions of law, and we therefore may exercise
jurisdiction to review this challenge under 38 U.S.C. § 7292(a)
Id. at * 8.
The Court noted that 38 USC 1110 does not define “disability”
and so it must be given its ordinary meaning.
The Court looked at dictionary definitions of disability and determined
refers to functional impairment rather than underlying cause of the impairment. Id. at *10.
It also finds support for this conclusion in the overall veteran’s
disability compensation scheme. It
ultimately states “while a diagnosed condition may result in a disability, the
disability itself need not be diagnosed.”
Id. at *11.
The Court then shifted to whether pain alone may be a functional
impairment/disability and concludes “that pain is an impairment because it
diminishes the body’s ability to function, and that pain need not be diagnosed
as connected to a current underlying condition to function as an impairment.” Id. at *13.
Again, the court looks toward the definitions of impairment and the VA
regulatory scheme.
The Court also dealt with the VA’s argument that the
definition of disability should
be limited to require that pain must affect some aspect of the
normal working movements of the body.
Id. at *18. The Court rejects the
argument and notes it would not account for some scenarios such as debilitating
headaches. Id. at *19.
Finally, the Court offers some perspective and addresses:
the Secretary’s concern that this holding
will somehow improperly expand veterans’ access to deserved service
compensation for pain that did not arise from a disease or injury incurred
during service. And nothing in today’s decision disturbs either of the other
requirements for demonstrating entitlement to service connection—that the
disability is linked to an inservice incurrence or aggravation of a disease or
injury.
We do not hold that a veteran could
demonstrate service connection simply by asserting subjective pain—to establish
a disability, the veteran’s pain must amount to a
functional impairment. To establish
the presence of a disability, a veteran will need to show that her pain reaches
the level of a functional impairment of earning capacity. The policy underlying
veterans compensation—to compensate veterans whose ability to earn a living is impaired
as a result of their military service—supports the holding we reach today.
Id. at *21.
This case is a powerful rejection of a tactic repeatedly
used by the VA in a small, but significant number of cases—denying service
connection for pain because there is not a clear diagnosis underlying the
pain. This case also offers a good luck
at the Federal Circuit’s willingness to delve deeply into the a definition on
its own and reach a conclusion even if that upsets the Veteran’s Court
traditional interpretation.
Decision by Judge O’Malley and joined by Judges Newman and
Dyk.
