Saunders: Pain is a disability subject to compensation
/Saunders v. Wilkie, 886 F.3d 1356 (Apr. 3, 2018)
HELD: “‘[D]isability’ in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability” – and “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.”
SUMMARY: This case overrules Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), which held that “pain alone is not a disability for the purpose of VA disability compensation.”
Veteran Melba Saunders served in the U.S. Army from 1987 to 1994. She had no knee problems prior to service. Her service medical records show treatment for “knee pain.” Her separation examination report notes a history of swollen knee.
In 1994, the RO denied her claim for service connection for her knees because she failed to appear for an examination. She did not appeal that decision and it became final. In 2008, she requested reopening, and RO denied service connection for her bilateral knees because it found no evidence of treatment. She appealed and was afforded a C&P examination. The examiner diagnosed “subjective bilateral knee pain” – and concluded that this condition is “at least as likely as not” related to service.
The RO asked the examiner for clarification, noting that “pain” is not a diagnosis. The examiner replied that there is no pathology to render a diagnosis – and that his theory is based on the chronology of events. The RO again denied service connection, and Ms. Saunders appealed to the Board.
The Board denied her claim, stating that “pain alone is not a disability,” and citing Sanchez-Benitez. Ms. Saunders appealed to the Court – and the CAVC affirmed the Board’s denial.
The veteran appealed to Federal Circuit, which overruled Sanchez-Benitez and held that (1) pain can constitute a disability under 38 U.S.C. § 1110; (2) the word “disability” in the statute refers to functional impairment; and (2) pain alone may be a functional impairment.
The Federal Circuit examined the plain language of the statute, noting that 38 U.S.C. § 1110 provides for compensation for “a disability resulting from personal injury suffered or disease contracted in line of duty,” but “does not expressly define what constitutes a ‘disability.’” The Court noted that the parties did not dispute that “‘disability’ refers to a functional impairment, rather than the underlying cause of the impairment.” And the Court found that VA’s rating schedule reflected this meaning, noting that the percentages in the rating schedule represent “the average impairment in earning capacity” (citing 38 C.F.R. § 4.1), and that “[t]he basis of disability evaluations is the ability of the body as a whole…to function under the ordinary conditions of daily life including employment” (38 C.F.R. § 4.10).
The Court also considered Congressional intent in drafting VA benefits statutes, finding that “the legislative history of veterans compensation highlights Congress’s consistent intent that there should be a distinction between a disability and its cause” – adding that Congress defined “disability” for Ch. 17 purposes, but not for compensation benefits.
The Court thus held that (1) “‘disability’ in § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability”; and (2) “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.”
To support this second part of its holding, the Federal Circuit noted several references to “pain” throughout VA’s rating schedule, citing §§ 4.10, 4.40, 4.45, 4.56, 4.66, 4.67. The Court added that “a physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.” To clarify its holding, the Court stated: “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,” adding that “[t]o 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 Court remanded this matter to the CAVC with instructions to remand to the Board to make specific factual findings in the first instance.
