Decision Assessment Document
Saunders v. Wilkie, Apr 3, 2018, 886 F. 3d 1356 (Fed. Cir. 2018)
U.S. Court of Appeals for the Federal Circuit
What the case is about:
The Federal Circuit held that the Veterans Court erred as a matter of law in finding that the veteran’s pain alone, absent a specific diagnosis or otherwise identified disease or injury, cannot constitute a disability under 38 U.S.C. 1110, because pain, even in the absence of a presently diagnosed condition, can cause functional impairment.
The Federal Circuit held that the term “disability” under section 1110 refers to the functional impairment of earning capacity, not the underlying cause of such disability.
The Federal Circuit further held that pain alone, even in the absence of a diagnosis, can serve as a functional impairment and qualify as a disability under section 1110, irrespective of the underlying cause.
The Federal Circuit clarified that it did not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, as the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran needs to demonstrate that the pain reaches the level of a functional impairment of earning capacity.
The Federal Circuit’s decision effectively overrules the Veterans Court opinion in Sanchez-Benitez v. West, 13 Vet.App. 282 (1999) (Sanchez-Benitez I) 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.”
Impact on VBA:
Manual M21-1, IV.ii.2.A will be revised to comply with the Federal Circuit’s holding.
Summary of the facts and Court’s reasons:
The veteran, who served from November 1987 to October 1994, was treated for knee pain and diagnosed with patellofemoral pain syndrome (PFPS) during service. Her separation examination indicated normal lower extremities but noted a history of swollen knee and hip joints. Her claim for disability compensation, which included knee pain, filed shortly after separation was denied due to failure to report for examination.
In 2008, the veteran filed a claim to reopen for compensation for a bilateral knee disability. The regional office (RO) denied the claim due to lack of evidence of treatment for a knee condition. The veteran appealed the decision.
The veteran, during a 2011 VA examination, reported bilateral knee pain while performing various activities. The examiner found no anatomic abnormality, weakness, or reduced range of motion; however, the examiner noted that the veteran had functional limitations on walking, was unable to stand for more than a few minutes, and sometimes required use of a cane or brace. A diagnosis of subjective bilateral pain was rendered and the examiner commented that the pain led to increased absenteeism and effects on the veteran’s ability to complete daily activities. The examiner also opined that the knee condition was at least as likely as not caused by, or a result of, the veteran’s military service.
In response to the RO’s request for a complete rationale for the diagnosis because “pain” could not be provided for a diagnosis for the veteran’s knee condition, the examiner stated in a supplemental report that there was no pathology to render a diagnosis and that the theory of causation was based on the chronology of events during the veteran’s service.
The Board of Veterans’ Appeals (Board), finding that new and material evidence had been received, reopened the claim, but denied it on the merits. The Board acknowledged that the 2011 VA examination found that the veteran’s in-service PFPS diagnosis was likely due to service; however, the Board concluded that the veteran failed to show the existence of a present disability as is required for service connection. The Board specifically relied upon Sanchez-Benitez I in concluding that pain alone is not a disability for the purposes of VA disability compensation and denied service connection for a knee condition because the examiner found no pathology to account for the veteran’s reported knee pain.
The Veterans Court noted Sanchez-Benitez I in affirming the Board’s denial and rejected the veteran’s argument that its holding regarding pain in Sanchez-Benitez I was converted into dicta by the Federal Circuit by its decision in Sanchez-Benitez v. Principi, 259 F.3d 1357 (Fed. Cir. 2001) (Sanchez-Benitez II). The Veterans Court noted that it applied the legal holding of Sanchez-Benitez I more than 100 times since the opinion was issued, and it had relied upon or affirmed the Board’s application of the legal principle at least 83 times.
The veteran argued before the Federal Circuit that the Veterans Court erred as a matter of law in holding that pain alone, without an accompany pathology of an identifiable condition, cannot constitute a disability under section 1110.
The Federal Circuit, after its initial determination that it had jurisdiction to hear the veteran’s challenge to the Veterans Court decision, addressed the issues on appeal of whether pain alone, without a specific pathology or an otherwise-identified disease or injury, can constitute a “disability” under section 1110 and if the Veterans Court erred in its legal interpretation.
The Federal Circuit explained that Sanchez-Benitez II did not control the outcome of the present case, as the Federal Circuit had explicitly declined to resolve the legal issue of whether pain alone may constitute a disability. However, the Federal Circuit clarified that it had characterized as dicta the holding in Sanchez-Benitez I that is at issue in the present case.
The Federal Circuit found that “disability” under section 1110 referred to the functional impairment of earning capacity, not the underlying cause of disability. Relying upon the plain language of the statue and dictionary definitions, the Federal Circuit explained that while a diagnosed condition may result in a disability, the disability itself need not be diagnosed.
The Federal Circuit also found that the definition was consistent with the purpose of veterans’ compensation: to compensate for impairment to a veterans’ earning capacity, which the Veterans Court recognized in Allen v. Brown, 7 Vet.App. 439 (1995). Furthermore, the Federal Circuit observed that Congress made no explicit statements as the meaning of disability under section 1110, as it had in other statutes such as 38 U.S.C. 1701(1) in which it defined disability as a “disease, injury or other physical or mental defect.” The Veterans Court in Allen had expressly held that the section 1701(1) definition was inapplicable to compensation benefits.
The Federal Circuit next concluded that pain alone can serve as a functional impairment and therefore qualify as a disability, irrespective of the underlying cause, because pain is an impairment that diminishes the body’s ability to function, and that pain need not be diagnosed as connected to an underlying condition to function as impairment. The Federal Circuit based this determination upon dictionary definitions, as well as the terminology considering pain in numerous VA regulations, such as 38 C.F.R. 4.10, 4.40, 4.45, and 4.56. The Federal Circuit also noted that in view of the broad recognition that pain is a form of functional impairment, if Congress had intended to exclude pain from the definition of disability under section 1110, it would have done so expressly, and there is no indication that Congress intended such exclusion.
The Federal Circuit held the Veterans Court interpretation of section 1110 to be unpersuasive. The Federal Circuit found that the Veterans Court failed to offer any citation or reasoned analysis as to explain its holding that pain alone could not qualify as a disability under the first prong of the service connection test. The Federal Circuit concluded that the Sanchez-Benitez I holding read out the distinction Congress made in section 1110 between the requirement for a disability and the requirement for in-service incurrence or aggravation of a disease or injury.
The Federal Circuit rejected the Secretary’s suggestion that pain must be tied to physical evidence of a lack of functionality and/or physical evidence of current disease or injury on the basis of the language of 4.40, which states that “functional loss … may be due to pain, supported by adequate pathology.” The Federal Circuit observed that the Secretary did not explain why an in-service diagnosis of a disease cannot provide “adequate pathology” to explain presently occurring pain. The Federal Circuit also noted that other portions of 4.40 do not refer to “pathology,” but instead state broadly that, for example, “part which becomes painful on use must be regarded as seriously disabled.”
In addressing the Secretary’s concern that its holding would improperly expand veterans’ compensation for pain that did not arise from a disease or injury during service, the Federal Circuit indicated that nothing in the holding disturbs either of the other two service connection requirements – that the disability is linked to an in-service incurrence or aggravation of a disease or injury.
The Federal Circuit also clarified that it was not holding that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability, as the veteran’s pain must amount to functional impairment. The Federal Circuit explained that to establish the presence of a disability, a veteran would need to demonstrate that his or her pain reaches the level of a functional impairment of earning capacity.
The Federal Circuit remanded the case for the Board to make multiple factual findings to include whether the veteran’s pain is a disability, and if so, whether it is related to an injury or disease in service, as well as applying its holding that pain alone may qualify as a disability under section 1110 to the facts of the case.
Federal Circuit number: No. 2017-1466