This case involves the question of whether a veteran can service connect stand alone pain as a disability for the purposes of VA disability compensation.
The basic VA disability compensation statute is clear: the VA must pay compensation for disability resulting from personal injury suffered in the line of duty. 38 USC §1110.
The veteran was diagnosed with patello-femoral pain syndrome (PFPS) in service. She complained of knee pain following service. The VA examiner opined that the veterans bilateral knee condition was related to the veteran's service. Because the Board of Veterans Appeals found that pain, standing alone, could not be a disability, the BVA made no factual finding whether the veteran's pain did or did not cause a functional impairment.
What constitutes a disability under 38 USC §1110, and can a veteran service connect stand alone pain as a compensable disability?
The Federal Circuit Court of Appeals found the term "disability" in 38 USC §1110 refers not to the diagnosed condition, or the cause of the condition, but to the functional impairment of earning capacity resulting from the condition or its symptoms.
The Federal Circuit reached this conclusion through a traditional statutory interpretation analysis.
The Fed Circuit first looked to the plain language of the statute, which states that compensation for disability in military service is due for a disability "resulting from personal injury suffered or disease contracted in line of duty". 38 USC §1110 (emphasis added). The Court noted the parties did not dispute this basic premise.
The Court then turned to the plain English meaning of the word "disability", concluding the word relates to functional impairment, not any particular underlying cause. (For pro-se vets out there, this translates to mean: proving a disability is not about proving a diagnosis, but the functional impairment that results from the injury or event).
The Federal Circuit's 3-judge panel noted this dictionary meaning is consistent with the VA Secretary's own disability rating regulations which state the very purpose of the rating process is to "represent as far as can practicably be determined the average impairment in earning capacity". 38 C.F.R. §4.1 (emphasis added).
The Federal Circuit then went on to apply this principle in the context of an appeal in which the veteran sought to service connect stand alone pain.
In what I think is the most critical part of this decision, the Federal Circuit clarifies what it did NOT hold: "...that a veteran could demonstrate service connection simply by asserting subjective pain -- to establish a disability, the veteran's pain must amount to a functional impairment."
To establish the presence of a disability, the Court said, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity."
This decision is clear and direct, but profund in its implication and reach.
Simply stated, a veteran can service connect stand alone pain if there is proof that the pain cause functional impairment.
Let's go beyond this holding, though, and ask a question.
Question: If pain, without any underlying diagnosis, can be a compensable disability based upon a showing of functional impairment, what conditions or symptoms are not compensable?
Answer: Only those defined by Congress to be non-compensable.
Absent express statutory authority for a regulation barring compensation for a particular disability or symptoms, or the over-reaching tentacles of "Auer deference", if you can prove your client suffers a functional impairment as the result of an injury in service, the name for the disease that causes that functional impairment might be largely irrelevant to the question of service connection.
So, in practice before the VA Regional Office, you might consider whether it is easier - and quicker - to prove that your veteran client has a functional impairment resulting from events that occurred in military service than it would be to prove a nexus between the diagnoses and the in service event.
How might you do this?
One way that has not been heavily explored in veterans law is the use of economic experts.
Consider this scenario: you have a client who served in Iraq during the Persian Gulf wars, and he has a broad range of undiagnosed symptoms that appeared during after he left military service. Some of them are gastrointestinal, some are neurological symptoms and others still are psychological. None have been clearly diagnosed, and as such the pathophysiology of the condition has been difficult to pin down or label.
Conventional wisdom says this case is about Gulf War syndrome, and maybe it is. When you have a client in this situation, only one thing is certain: the claim and appeal will take years. Decades.
In many scenarios like this - think of veterans with a multitude of mental health conditions feeding off and aggravating each other - you can spend decades trying to disentangle the etiology & pathophysiology so that you can persuade an unbending federal bureaucracy that your client is entitled to service connection ....your client might even die waiting.
But maybe - consider this possibility - a parallel theory worth considering is whether the veteran's symptoms are related to his military service and, if so, whether those symptoms (irrespective of the diagnosis) are causing him a functional impairment (i.e., a functional impairment proven by a reduction in earning capacity not medical limitation).
To prove this theory, you might introduce some or all of the following evidence depending on the circumstances:
I think dicta - or what arguably might be the critical logical conclusion - in the Federal Circuit Court of Appeals decision lays out the opportunity to use this proof when it wrote: "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."
Substitute the word "pain" for any range of symptoms that can be clearly linked, often by a lay person, to events that happened in military service.
To be clear, I'm not recommending anyone do this without a LOT of thought, a LOT of debate and discussion, and legal advice from a lawyer competent to analyze the pros and cons of what is, for now, a novel strategy.
To any pro-se veterans or VSOs out there, this is NOT sound legal theory or advice: don't try this at home, folks.
What I am asking is that advocates for veterans consider that the ramifications of the Saunders decision may extend far beyond the question of whether or not a veteran can service connect stand alone pain.
2 decisions do not make a trend.
Or do they?
Two recent Federal Circuit decisions have made a head-on assault on certain pervasive legal fictions in the body of Veterans Law.
In March 2018, I wrote how the Federal Circuit eliminated the fiction that the EAJA filing deadline at the CAVC was computed as 30 days from its mandate, not 60 days from the underlying judgment.
This month's decision in the Saunders case addresses a far more substantive fiction.
For years, the Office of General Counsel in his briefs, and the BVA in its decisions, have propounded the idea that a veteran cannot service connect stand alone pain - it is not a compensable disability, they said.
The logic was much the same as the logic that they propounded in their arguments in the Marcelino case, arguing that obesity could not be a disability.
The problem is this.
There was no Federal Circuit Court of Appeals case - anywhere - that held that pain, standing alone, could not be a disability. There was no holding, anywhere that a veteran could not service connect stand alone pain.
There was, back in 1999, a CAVC holding that found that pain, standing alone, could not be a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).
However, on direct appeal to the Federal Circuit, the higher court rejected that holding, and converted it to dicta. See, Sanchez-Benitez v. West, 259 F.3d 1356 (Fed. Cir 2001.)
The Federal Circuit Court of Appeals, in its 2001 Sanchez-Benitez decision, expressly stated it did not reach the legal issue of whether pain is a disability: the panel instead held that it could not review the Board's factual determination that the veteran had established no nexus between his pain and military service.
Translation: the Federal Circuit did not hold, and did not endorse the CAVC holding, that a veteran could not service connect stand alone pain.
What is curious to me is what happens next.
In the 17 years since the Federal Circuit rejected the CAVC holding that a veteran could not service connect stand alone pain(and in fact expressly reserving the question for future review) the CAVC relied on the Federal Circuit decision for the exact opposite holding at least 83 times for the conclusion the Federal Circuit did not make. Saunders, ___ F.3d ____, slip opinion at *5 (April 3, 2018).
Why does that happen?
How does a lower Court have their holding reduced to dicta by a higher court, and then go on to cite the dicta as law?
83 times. At least. Not counting the veterans who did not appeal their BVA decisions.
I don't have a clear answer to that.
I can think of no comparable situation outside of Veterans Law where this has happened.
But here's what I do know: practitioners who represent Veterans must be vigilant.
We must not trust how the BVA characterizes Court holdings - whether they are the holdings of either the Veterans Court or the Federal Circuit, the BVA has a tendency to not know the law, not apply the law properly, and in some cases, misrepresent the law.
As an attorney, I have an ethical duty to promote public confidence in our judicial system, but when it comes to the BVA, I simply cannot do that: I do not trust BVA decisions to be factually or lawfully correct: statistics have repeatedly shown that over 75% of the BVA decisions appealed are reversed or remanded for factual, legal, or logical errors.
W must carefully read the briefs of the VA Office of General Counsel on appeal to the CAVC to ensure that the cases they cite stand for the proposition for which they are proposed.
And while I have the utmost respect for the Veterans Court and each and every one of the Judges who sit on it - as a disabled veteran and a lawyer, I cannot speak more highly of the work they do filtering through thousands of erroneously decided and all-too-often fundamentally flawed BVA decisions annually - they have a very difficult job. The body of Veterans Law is a Gordian knot of complexity and confusion.
Long-standing rules of law are reasoned, sometimes, on statutes that have long since been repealed, revised, amended, or forgotten.
For example, I have found no statute that requires the VA disability compensation system to be "non-adversarial". Nor does Congress have a special affinity to veterans - there is a substantial number of instances where Congress has tightened its purse strings to deprive soldiers of the pensions and benefits they were promised. The idea of a veteran-friendly Congress and a non-adversarial benefits system are part of the lore but not part of the law.
Dicta or reasoning that uses imprecise or inconsistent jargon can become a parenthetical memorializing a holding that was never made.
And, owing to barely more than a quarter century of jurisprudential development, Veterans Law is still largely a diamond "in the rough".
It is unpolished and unrefined by some core constitutional, statutory, and evidentiary principles that the broader body of American law now takes for granted. This is not a bad thing: it is a necessary stage of growth for a body of law.
I want to be clear: in no way do I intend to malign any Court or Judge on any Court.
To the contrary.
Veterans Law is still developing and growing.
I believe we are witnessing an exciting time at the CAVC: the current panel of Judges on the CAVC have the background, skills, knowledge and experience to begin to eliminate legal fictions which impair the development of a consistent and reliable body of law which ensures what the citizenry, if not Congress, commands: take care of our nation's veterans.
This case was argued for the Appellant by attorney Melanie L. Bostwick of the firm Orrick, Herrington, & Sutcliffe.
I've listened to a lot of oral arguments at the Federal Circuit.
As brief as the argument for Appellant was (opening arguments were under 7 minutes), Ms. Bostwick had one of the smoothest and most compelling presentations I've heard from an advocate at the Federal Circuit in some time.
She engaged the bench, commanded the facts, was unwavering in her position on what the outcome should be, all while remaining conversational and relaxed.
Well done, Ms. Bostwick. I, for one, will be listening to more of your arguments as I prepare for my own.
Take a listen to the audio of the oral arguments in this case at the Federal Circuit:
Federal Circuit Court of Appeals Panel:
Circuit Judge Kathleen O'Malley (Opinion Author)(link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Timothy B. Dyk (link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Pauline Newman (link to bio on Federal Circuit Court of Appeals website)
Veteran Representation at Federal Circuit: Melanie L. Bostwick (link to bio on website of law firm: Orrick, Herrington, & Sutcliffe)
DOJ Attorney at Federal Circuit: Mark E. Porada (link to bio on LinkedIn)
Date of Decision: April 3, 2018
Judge Coral W. Pietsch (CAVC Memorandum Decision Author) (link to bio on CAVC website)
Chief Judge Robert N. Davis (link to bio on CAVC website)
Judge Mary J. Schoelen (link to bio on CAVC website)
Veteran Representation at CAVC: Patrick Berkshire, NVLSP (on the briefs and merits)(link to bio on NVLSP website)
OGC Attorney at CAVC: Shereen Marcus (on the briefs and merits)(link to bio on LinkedIn)
Date of CAVC Decision: November 1, 2016
Regional Office: Roanoke, Virginia, VA Regional Office
Vets’ Rep at BVA: American Legion (AL)
Board of Veterans Appeals Veterans Law Judge: Thomas J. Dannaher
Date of Board Decision: December 14, 2014