by Stephani Bennett, Attorney at Law and US Air Force Veteran
Is pain alone a disability? For VA compensation purposes, the answer for many years has been a resounding, “No.” Veterans who applied for disability compensation for their pain were told they needed a diagnosis before they could be service connected, even if they met every other requirement. When doctors were unable to provide a diagnosis, the claim was denied.
A recent decision from the Federal Circuit has changed that answer. According to this new decision, pain alone can be considered a disability for VA compensation purposes. This means the requirements for VA claims have effectively changed. In this post, we’ll explore those changes and what they mean for Veterans going forward.
A Veteran seeking service connection for a disability through the VA must establish three elements:
Prior to the recent Federal Circuit case, the existence of a persistent disability was interpreted by the VA to mean a current, diagnosed illness or injury. Without a diagnosis, the VA did not recognize pain as a disability.
In a decision released April 3, 2018, the Federal Circuit has now held that the regulation has been misinterpreted. The appellant, a Veteran named Melba Saunders, appealed a decision from the Court of Appeals for Veterans Claims, which had upheld a Board decision denying her claim for knee pain. The main point of contention was the first element for service connection: “the existence of a persistent disability.” The issue was whether that element allowed for pain as a disability.
In exploring the issue, the Circuit first looked at the language of the source statute, 38. U.S.C. 1110. Statutes will sometimes provide definitions with key terms, but not in this case. Since the statute did not provide an express definition of “disability,” the Circuit looked to find the plain meaning of the word.
The Circuit concluded that a disability refers to a functional impairment, not a diagnosed condition. Essentially, the role of VA compensation is to pay a veteran for earning capacity they lose by being disabled. If pain, which was caused by something that happened in service, causes a veteran to lose their ability to work at peak efficacy, that pain should be compensated. With that in mind, the Circuit shifted their focus to whether pain alone could cause functional impairment sufficient to meet that standard of disability.
As anyone who has ever had to stop working due to mysterious joint pain can tell you, pain is absolutely a functional impairment. The Circuit came to that conclusion easily, stating, “[P]ain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed a connected to current underlying condition to function as an impairment.” They provided a lot of detailed analysis which came down to the simple fact: pain is a disability.
For Veterans who have been denied benefits simply because they could not get a diagnosis for their pain, this decision might be the key to getting service connected. If a Veteran can meet the other requirements for service connection, the fact that they cannot get a current diagnosis for their pain will no longer preclude them from benefits. For an example, we’ll look to the case of the appellant, Saunders.
When Saunders left the military, she suffered from problems with both knees. She filed for VA benefits for her knee, hip, and foot pain, but she was denied. In 2008, she reopened the claim, but was again denied. A VA physician diagnosed her with bilateral knee pain and concluded it was at least as likely as not caused by military service. After years of fighting on appeal, she received a denial from the Board in 2015. The Board said pain alone was not a disability for the purposes of VA compensation. As discussed previously, the denial of benefits was upheld at the Court before being overturned by the Federal Circuit.
While pain can usually be diagnosed, Saunders’ case is not unique. Many veterans have been denied benefits simply because they lacked a diagnosis. For them, this new decision provides an avenue to receive service connection for claims which previously seemed hopeless.
Berry Law Firm was founded by Vietnam War Veteran and legendary trial lawyer John Stevens Berry Sr. We are proud to have many military Veterans among our attorneys and staff who understand what it means to serve and know firsthand the struggles many of our clients face every day.
If your VA disability claim has been denied, Berry Law Firm may be able to help. We have been successfully representing Veterans for decades. Contact us today for a free evaluation.
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