Webb: Can a veteran get disability compensation for mental health symptoms absent a diagnosis that conforms with the DSM?

Webb v. Wilkie, docket no. 18-0966 (March 26, 2020)

HELD: Because the Court found that this case “presents factual disputes that should be resolved by the Board in the first instance,” which may ultimately moot the panel question, the Court declined to address whether a veteran can establish entitlement to disability benefits for symptoms of a mental health condition in the absence of a confirmed dignosis that conforms with the DSM.

SUMMARY: Veteran filed a claim for disability benefits for PTSD. He underwent several VA examinations that described mental health symptoms, but found that he did not have a diagnosis that conformed with the Diagnostic and Statistical Manual of Mental Disorders (DSM). His representative raised several arguments regarding the adequacy of the medical opinions, but the RO and the Board denied his claim based on the lack of a confirmed diagnosis.

At the Court, Mr. Webb argued that the Board “erred by failing to consider whether his lay statements are evidence of a psychiatric disability other than PTSD.” He asserted that his “symptoms caused functional impairment and … constitute a ‘current disability’ for purposes of establishing entitlement to disability compensation,” citing Saunders v. Wilkie, 886 F.23d 1356 (Fed. Cir. 2018).

The Secretary argued that “Saunders is limited to the facts of that case—that pain alone, absent a diagnosis, may be compensated if it causes functional loss.”

Unfortunately, the Court did not address this important question because it found that “the Board did not make any explicit findings regarding the adequacy of [the VA] examinations or explain which examinations it relied on to deny the appellant’s claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.” Because the Board did not make these “necessary factual findings in the first instance,” the Court declined to address the question that was the reason this case was sent to a panel.

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.

 FULL DECISION