PHARMACIST STEVE

www.disabledveterans.org/2018/04/04/fed-cir-veterans-can-now-get-disability-pain-alone-va-opposition-illogical/

The Federal Circuit just reversed years of bad case law finding veterans can receive a service-connected disability for pain alone without a present diagnosis or pathology.

Basically, the Court concluded the Department of Veterans Affairs added additional criteria to what the term “disability” means as it related to disability compensation. The Court called VA’s argument as to the interpretation of what “disability” means “illogical in the broader context of the statute”.

The decision finds the Court of Appeals For Veterans Claims misinterpreted what a disability was when adjudicating the claim of Melba Saunders for her knee pain. The veteran lacked a current specific diagnosis or other identified disease or injury. Nonetheless, the three-judge panel concluded veterans include Melba may still be entitled to a disability rating for such pain.

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“We conclude 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.”

The Secretary was unsuccessful in explaining why “pain alone is incapable of causing an impairment in earning capacity” despite trying hard to strain a gnat in his contrarian argument.

His representation did not go down without a fight. They even tried classic law school slippery-slope argument strategies claiming the Court’s holding would result in veterans getting disability ratings for pain when they do not deserve the ratings.

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Yawn.

In short, a veteran’s disability must be linked to an in-service incurrence or aggravation of a disease or personal injury.

Can you imagine how many veterans were screwed by the agency’s improper interpretation of 38 USC § 1110 and its interpretation of what a “disability” actually is?

VA probably knows the amount of money it was saving by screwing veterans with its illogical interpretation of the statute, right down to the penny.

Saunders v Acting VA Secretary Wilkie Quotes

Here were some of my favorite quotes in italics from the case, Saunders v Wilkie:

We next consider whether pain alone can serve as a functional impairment and therefore qualify as a disability, no matter the underlying cause. We conclude 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. The Secretary fails to explain how pain alone is incapable of causing an impairment in earning capacity, and we see no reason to reach such a conclusion. In fact, the Secretary concedes that “pain can cause functional impairment in certain situations, that disability can exist in those cases, and that a formal diagnosis is not always required.” Appellee Br. 26 (emphasis in original).

…

The Veterans Court’s interpretation of “disability” is also illogical in the broader context of the statute, given that the third requirement for service connection is establishment of a nexus between the present disability and the disease or injury incurred during service. If the disability must be the underlying disease or injury, there is no reason for a nexus requirement—and therefore Sanchez–Benitez I eviscerates the nexus requirement.

… 

This holding is also supported by common sense. As Saunders explains, 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 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.

Filed under: General Problems