VET lawyers got de­sired ‘un­di­ag­nosed pain’ case to win on ap­peal

The Progress-Index - - MILITARY LIFE -

Lawyers at the non­profit Na­tional Vet­er­ans Le­gal Ser­vices Pro­gram (NVLSP) had been screen­ing Board of Vet­er­ans’ Ap­peals de­ci­sions for years, look­ing for just the right case in­volv­ing de­nial of dis­abil­ity com­pen­sa­tion to a vet­eran suf­fer­ing from chronic ser­vice-re­lated pain but due to a con­di­tion that doc­tors couldn’t di­ag­nose.

The NVLSP needed such a case to chal­lenge a 1999 prece­dent-set­ting rul­ing of the U.S. Court of Ap­peals for Vet­er­ans Claims that found VA was not re­quired to com­pen­sate a vet­eran for pain if physi­cians aren’t able to iden­tify the cause.

In May 2016 the NVLSP found the promis­ing case it sought. Last week the U.S. Court of Ap­peals for the Fed­eral Cir­cuit de­cided it fa­vor­ably for Army vet­eran Melba Saun­ders. The April 3 rul­ing in Saun­ders v. Wilkie, if it stands, could ben­e­fit thou­sands of vet­er­ans who have had VA com­pen­sa­tion claims for pain de­nied for lack of a med­i­cal di­ag­no­sis.

“It’s of­ten true that vet­er­ans have pain and physi­cians can’t di­ag­no­sis ex­actly what’s caus­ing it,” said Bart Stich­man, ex­ec­u­tive di­rec­tor of NVLSP and one of Saun­ders’ at­tor­neys. How­ever, he said, “lack of a med­i­cal di­ag­no­sis shouldn’t pre­vent the VA from grant­ing dis­abil­ity ben­e­fits for the pain if it’s re­lated to an event or in­jury or dis­ease in ser­vice.”

A three-judge panel on the Fed­eral Cir­cuit ap­peals court agreed, find­ing that the vet­er­ans claims court, in re­ject­ing Saun­ders’ ap­peal from the Board of Vet­er­ans Ap­peals two years ago, “erred as a mat­ter of law” by find­ing that her bi­lat­eral knee pain alone, “ab­sent a spe­cific di­ag­no­sis or oth­er­wise iden­ti­fied dis­ease or in­jury, can­not con­sti­tute a dis­abil­ity” un­der the law gov­ern­ing VA dis­abil­ity com­pen­sa­tion.

The ap­pel­late court ruled that the “plain lan­guage” of the law “states that com­pen­sa­tion is due for a dis­abil­ity ‘re­sult­ing 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,’ [and] not that the dis­abil­ity it­self must be the qual­i­fy­ing per­sonal in­jury or ag­gra­va­tion suf­fered by the vet­eran.”

The or­di­nary mean­ing of “dis­abil­ity,” added the court, “re­lates to func­tional in­ca­pac­i­ta­tion or im­pair­ment, rather than the par­tic­u­lar un­der­ly­ing cause of that con­di­tion. In other words, while a di­ag­nosed con­di­tion may re­sult in a dis­abil­ity, the dis­abil­ity it­self need not be di­ag­nosed.”

Saun­ders served on ac­tive duty from 1987 to 1994. While serv­ing, she sought treat­ment for knee pain and was di­ag­nosed with patellofemoral pain syn­drome (PFPS). On leav­ing ac­tive duty, her exit exam showed nor­mal leg mo­tion but noted her history of swollen knee and hip joints while in ser­vice. She filed her first com­pen­sa­tion claim with VA in 1994 for knee and hip pain. It was de­nied for fail­ing to re­port for a re­quired med­i­cal ex­am­i­na­tion.

In 2008, Saun­ders filed a new claim, this time for a bi­lat­eral knee dis­abil­ity and foot is­sues. Both claims were de­nied. Her VA re­gional of­fice noted in its de­ci­sion that Saun­ders had been di­ag­nosed with PFPS in ser­vice, but that VA had “not re­ceived any cur­rent med­i­cal ev­i­dence” re­gard­ing her knee con­di­tion.

Saun­ders filed a No­tice of Dis­agree­ment, ex­plain­ing she “sus­tained in­juries to knees” on ac­tive duty, cit­ing the PFPS di­ag­no­sis, and that she was still ex­pe­ri­enc­ing pain and swelling in her knees. VA de­nied the claim again, in Fe­bru­ary 2010, cit­ing lack of ev­i­dence of treat­ment for a knee con­di­tion.

On ap­peal to the Board of Vet­er­ans’ Ap­peals, Saun­ders had an­other VA med­i­cal exam and re­ported knee pain while run­ning, squat­ting, bend­ing or climb­ing stairs. The ex­am­iner found “no anatomic ab­nor­mal­ity, weak­ness or re­duced range of mo­tion,” the court said, but the record also said Saun­ders was un­able to stand more than a few min­utes at a time and some­times needed a cane or brace to walk.

This ex­am­iner di­ag­nosed Saun­ders with “sub­jec­tive bi­lat­eral knee pain” and said it af­fected her abil­ity to com­plete daily ac­tiv­i­ties. The ex­am­iner also con­cluded that Saun­ders’s knee pain was “at least as likely as not” caused by, or the re­sult of, her mil­i­tary ser­vice.

The VA re­gional of­fice later ex­plained that pain could not be con­sid­ered a di­ag­no­sis for her knee con­di­tion. It asked the ex­am­iner to pro­vide a more com­plete ra­tio­nale for the di­ag­no­sis. In a sup­ple­men­tal re­port, the ex­am­iner said there was no pathol­ogy to ren­der a di­ag­no­sis. On re­view­ing the re­port, the VA again de­nied the claim be­cause Saun­ders had no di­ag­nosed knee con­di­tion.

Saun­ders’ ap­pealed and the Board of Vet­er­ans Ap­peals also de­nied her claim. Though she had been di­ag­nosed in ser­vice with PFPS, and an ex­am­iner had found her knee con­di­tion likely re­lated to ser­vice, the Board said, it de­nied the claim cit­ing the claims court’s 1999 rul­ing in Sanchez-Ben­itez v. West, which found that “pain alone is not a dis­abil­ity for the pur­pose of VA dis­abil­ity com­pen­sa­tion.”

Her own ap­peal to the same vet­er­ans’ claims court af­firmed that de­ci­sion.

Saun­ders’ “was a very good case to bring a chal­lenge” to the Sanchez-Ben­itez-prece­dent, said Stich­man, “be­cause, right in the record, a physi­cian said ‘I be­lieve it is at least as likely as not that the cur­rent pain is re­lated to her knee in­jury in ser­vice.’ That re­ally brought home that the only block­age be­tween vic­tory and de­feat was the Sanchez-Ben­itezrul­ing.”

The NVLSP searched Board of Ap­peals de­ci­sions since 1999 and found more than 11,000 ad­verse rul­ings for vet­er­ans that cited Sanchez-Ben­itez, giv­ing a rough es­ti­mate of how many vet­er­ans might stand to ben­e­fit.

The ap­pel­late court, in re­ject­ing the prece­dent of that 1999 case, said that con­trary to VA ar­gu­ments, the dis­abil­ity com­pen­sa­tion statute “does not in­di­cate that pain, de­void of un­der­ly­ing cur­rent pathol­ogy, is not com­pens­able.”

It noted that Congress it­self clar­i­fied this point when it es­tab­lished a pre­sump­tion of ser­vice con­nec­tion for Per­sian Gulf War vet­er­ans suf­fer­ing cer­tain chronic dis­abil­i­ties from “un­di­ag­nosed ill­nesses” in­clud­ing “mus­cle pain” and “joint pain.” That con­sid­er­a­tion by law­mak­ers for one group of vet­er­ans is sig­nif­i­cant for oth­ers, the ap­pel­late

court said, be­cause it “re­flects an un­der­stand­ing that pain may be a dis­abil­ity even in the ab­sence of a di­ag­no­sis.”

For Saun­ders, the ap­pel­late court didn’t or­der the VA to grant her dis­abil­ity com­pen­sa­tion but di­rected that her claim be re-eval­u­ated, “know­ing now that pain alone, with­out a di­ag­no­sis, can lead to ben­e­fit,” Stich­man said.

At­tor­neys for the Jus­tice Depart­ment and VA will de­cide soon whether to pe­ti­tion the ap­pel­late court for an en ban­creview with the full court, up to nine judges, re­con­sid­er­ing ar­gu­ments. The gov­ern­ment also has 60 days to de­cide whether to pe­ti­tion for Supreme Court re­view.

If al­lowed to stand, said Stich­man, the April 3 rul­ing won’t hand­cuff VA med­i­cal ex­am­in­ers from still con­sid­er­ing the cred­i­bil­ity of any vet­eran’s claim of pain from an un­di­ag­nosed con­di­tion. Claims still will be de­cided on what ex­am­in­ers be­lieve re­gard­ing a vet­eran’s ac­count of what hap­pened in ser­vice, con­ti­nu­ity of symp­toms be­fore and af­ter dis­charge, and the na­ture of cur­rent symp­toms.

NVLSP, an in­de­pen­dent vet­er­ans’ ser­vice or­ga­ni­za­tion that pro­vides le­gal sup­port to vet­er­ans and ac­tive duty mil­i­tary, part­nered on the case with pro-bono coun­sel from the law firm of Or­rick, Her­ring­ton & Sut­cliffe. At­tor­ney Mel Bost­wick, a part­ner with the firm, ar­gued the case be­fore the ap­pel­late court.

To com­ment, write Mil­i­tary Up­date, P.O. Box 231111, Cen­tre­ville, VA, 20120 or email milup­ or twit­ter: Tom Philpott @Mil­i­tary_Up­date

Tom Philpott

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