Saunders: Pain as a Disability Decided by the Federal Circuit

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.