In my April 2016 blog, I discussed how chronic pain has become prevalent in our Nation, and the chaos it is leaving in its wake with millions of people addicted to opioids. In 2014, the Journal of Pain published a study estimating that 39 million people in the U.S. have persistent or chronic pain. However, because chronic pain is subjective, it is very difficult to define unless there is an underlying etiology, in other words, a diagnosed condition that is causing the pain. According to The Global Burden of Disease 2015 study, back pain is the second cause of years lost to disability worldwide, with ischemic heart disease as number one. Pain, whether it is from the back, feet, knees any other part of the body when it becomes chronic can be disabling and it has a great impact on an individual’s ability to work and manage the daily activities of life.
Chronic Pain and the VA
The VA does not have a specific diagnostic code for chronic pain. In order to receive VA disability compensation for chronic pain, the symptoms causing the chronic pain disorder must be based on a diagnosable pathology. A Veteran is entitled to receive service-connected compensation for his chronic back pain if there is a diagnosed back condition, such as a herniated disc, or degenerative disc disease. In turn, this diagnosed condition must be the culprit for the pain which in turn, among other symptoms, limits the Veteran’s range of motion. In other words, pain alone cannot be considered a compensable disability. For years, the VA has denied service-connected claims of impairment caused by pain alone, if the pain was not a symptom of a diagnosed condition or disease. That is, not until a recent game-changer April 2018 Federal Circuit decision – Saunders v. Wilkie. [Saunders v. Wilkie No. 17-1466 (Fed. Cir. 2018)]
According to the VA’s code and regulations, basic entitlement for compensation must result from “personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty…” [38 USCS § 1110]
Saunders v. Wilkie
In Saunders, the Veteran filed a claim for pain from a bilateral knee disorder. During service, she was diagnosed with patellofemoral pain syndrome. Patellofemoral pain syndrome is the most common cause of knee pain commonly associated with injury or overuse in particularly among people who participate in sports, especially women and young adults.
Saunders’s contended that her current bilateral knee condition was caused by injuries sustained while on active duty. She noted that she had been experiencing swelling and pain since service. In fact, her service medical records showed that she had been diagnosed with patellofemoral pain syndrome while still on active duty. As a result of filing her claim, the VA scheduled her for an examination of her knees. She participated in a Compensation & Pension Examination where the examiner diagnosed her with subjective bilateral knee pain and found that this pain led to increased absenteeism and affected her activities of daily living. In addition, the examiner opined that her subjective bilateral knee pain was “at least as likely as not” caused by Saunders’s military service.
Pain Is Not A Diagnosis
VA denied her claim relying on years-long standing Veterans Court’s ruling in Sanchez-Benitez v. West explaining that “pain” could not be provided as a diagnosis and that Saunders had not demonstrated a currently diagnosed bilateral knee condition that could be linked to service. [Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)]
Saunders appealed that the Board erred legally in its interpretation of what constitutes a “disability” under 38 USCS § 1110. The question which the Federal Circuit resolved was whether Saunders’s patellofemoral pain syndrome is a “disability”. The Federal Circuit concluded that the term “disability” refers to a condition that impairs normal functioning and reduces earning capacity. As such, “pain” is impairment because it diminishes the body’s ability to function. The Federal Circuit explained that medical literature and common sense supported the assumption that chronic pain can develop in the absence of gross skeletal pathology, and common causes like muscle strain and inflammation may be difficult to detect with diagnostic imaging such as MRIs or X-rays.
Overruled
Saunders overruled longstanding court cases in its ruling that the Veterans Court erred as to its interpretation of the meaning of “disability,” holding that pain alone, without a diagnosed pathology, cannot constitute a “disability” under 38 USCS § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment. The Federal Circuit remanded Saunders for the Board to determine whether the examiner’s findings of a subjective bilateral knee condition amount to functional impairment under the correct legal test for disability.
Saunders’s challenge at the Board is to prove that her patellofemoral pain syndrome meets the pain threshold to where it reaches a level of a functional impairment of earnings capacity.
Under Saunders, veterans are now entitled to service-connected benefits for impairment caused by pain, even though there is no pathology identified. However, veterans must establish a causal link between military service and the current pain, and functional impairment of earning capacity caused by the pain.
