Saunders v. Wilkie

United States Court of Appeals

for the Federal Circuit

______________________

MELBA J. SAUNDERS,

Claimant-Appellant

v.

ROBERT WILKIE, ACTING SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2017-1466

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 15-975, Judge Coral Wong Pi-

etsch.

______________________

Decided: April 3, 2018

______________________

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe,

LLP, Washington, DC, argued for claimant-appellant.

Also represented by ERIC SHUMSKY; PATRICK AARON

BERKSHIRE, BARTON F. STICHMAN, National Veterans

Legal Services Program, Washington, DC.

MARK E. PORADA, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washing-

ton, DC, argued for respondent-appellee. Also represent-

ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., L.

MISHA PREHEIM; Y. KEN LEE, JONATHAN KRISCH, Office of

2 SAUNDERS v. WILKIE

General Counsel, United States Department of Veterans

Affairs, Washington, DC.

______________________

Before NEWMAN, DYK, and O’MALLEY, Circuit Judges.

O’MALLEY, Circuit Judge.

Melba Saunders appeals from a decision of the United

States Court of Appeals for Veterans Claims (“the Veter-

ans Court”) denying her entitlement to disability benefits

based on her reported pain from bilateral knee disorders.

Saunders v. McDonald, No. 15-0975, 2016 WL 3002862

(Vet. App. May 25, 2016) (Saunders I), aff’d, 2016 WL

4258493 (Vet. App. Aug. 12, 2016) (Saunders II) (affirmed

by a three-judge panel). The Veterans Court erred as a

matter of law in finding that Saunders’s pain alone,

absent a specific diagnosis or otherwise identified disease

or injury, cannot constitute a disability under 38 U.S.C.

§ 1110 (2016). We therefore reverse the Veterans Court’s

legal determination and remand for further proceedings.

I. BACKGROUND

Saunders served on active duty in the Army from No-

vember 1987 until October 1994. Saunders I, 2016 WL

3002862, at *1. Saunders did not experience knee prob-

lems before serving in the Army. During her service,

however, Saunders sought treatment for knee pain and

was diagnosed with patellofemoral pain syndrome

(“PFPS”). Id. Saunders’s May 1994 exit examination

reflected normal lower extremities but noted Saunders’s

reporting of a history of swollen knee and hip joints and

bone spurs on her feet.

In 1994, Saunders filed a claim for disability compen-

sation for knee pain, hip pain, and a bilateral foot condi-

tion. Id. The VA Regional Office (“RO”) denied

Saunders’s claim because she failed to report for a re-

SAUNDERS v. WILKIE 3

quired medical examination. Saunders did not appeal

that decision.

In 2008, Saunders filed a new claim for a bilateral

knee disability and for foot issues. The RO treated this

application as a request to reopen the prior decision,

granted the request, and denied both claims on the mer-

its. As to Saunders’s knee claim, the RO noted in the

rating decision that Saunders was diagnosed with PFPS

while in service, but the RO had “not received any current

medical evidence” related to Saunders’s knee condition.

In 2009, Saunders submitted a Notice of Disagree-

ment, explaining that she had “sustained injuries to [her]

knees” while on active duty, citing the PFPS diagnosis,

and stating that she was “still experiencing pain and

swelling in [her] knees.” J.A. 643–44. The RO denied this

claim in February 2010, citing a lack of evidence of treat-

ment for a knee condition. Saunders appealed this deci-

sion to the Board of Veterans’ Appeals (“the Board”).

During a 2011 VA examination, the examiner noted

that Saunders reported experiencing bilateral knee pain

while performing various activities such as running,

squatting, bending, and climbing stairs. The examiner

found that Saunders had no anatomic abnormality,

weakness, or reduced range of motion. The examiner also

noted that Saunders had functional limitations on walk-

ing, that she was unable to stand for more than a few

minutes, and that sometimes she required use of a cane or

brace.

The examiner diagnosed Saunders with subjective bi-

lateral knee pain and found that this pain led to

(1) increased absenteeism and (2) effects on Saunders’s

ability to complete daily activities. The examiner also

concluded that Saunders’s knee condition was at least as

likely as not caused by, or a result of, Saunders’s military

service. The VA later explained that “pain” could not be

provided as a diagnosis for Saunders’s knee condition, and

4 SAUNDERS v. WILKIE

requested that the examiner provide a complete rationale

for the diagnosis. In a supplemental report, the examiner

stated there was no pathology to render a diagnosis on

Saunders’s condition, and noted that the theory of causa-

tion was based on the chronology of events during Saun-

ders’s service. After reviewing the supplemental report,

the RO once again denied Saunders’s claim because, in its

view, Saunders had not demonstrated a currently diag-

nosed bilateral knee condition linked to military service.

Saunders appealed to the Board. Before the Board,

Saunders argued that, because the examiner found that

her knee conditions were linked to her service, and be-

cause she was treated while in service and afterwards for

knee pain, she had sufficiently demonstrated service

connection for her condition. The Board reopened Saun-

ders’s knee claim, concluding the additional evidence she

offered was new and material, but denied her claim on the

merits. The Board acknowledged that Saunders was

diagnosed while in service with PFPS and that the exam-

iner found that Saunders’s knee condition was likely

related to her active service. But the Board concluded

that Saunders failed to show the existence of a present

disability as is required for service connection. More

specifically, the Board relied on the Veterans Court’s

ruling in Sanchez-Benitez v. West, 13 Vet. App. 282, 285

(1999) (Sanchez-Benitez I), in concluding that “pain alone

is not a disability for the purpose of VA disability compen-

sation.” J.A. 22. Because the examiner did not provide a

pathology to explain the pain Saunders reported, the

Board denied Saunders service connection for her knee

claim. 1

1 The Board remanded Saunders’s claim for service

connection for bilateral bone spurs. That claim is not at

issue in this appeal.

SAUNDERS v. WILKIE 5

Saunders appealed that decision to the Veterans

Court. She argued there that the Board erred legally in

its interpretation of what constitutes a “disability” under

38 U.S.C. § 1110. The Veterans Court affirmed the

Board’s decision denying Saunders’s claim. Saunders I,

2016 WL 3002862, at *6. The Veterans Court noted that,

in Sanchez-Benitez I, it stated that it “holds that pain

alone, without a diagnosed or identifiable underlying

malady or condition, does not in and of itself constitute a

disability for which service connection may be granted.”

Id. at *2 (emphasis added) (quoting Sanchez-Benitez I, at

285). Although Saunders asserted this statement was

merely dicta, the Veterans Court noted that it had labeled

this statement as a holding in Sanchez-Benitez I, “making

it clear that it intended to establish precedent.” Id.

The Veterans Court also rejected Saunders’s conten-

tion that we converted the Veterans Court’s holding on

pain in Sanchez-Benitez I into dicta upon appeal. Id.

(citing Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.

Cir. 2001) (Sanchez-Benitez II)). The Veterans Court

explained that we decided Sanchez-Benitez II on alterna-

tive grounds: the panel on appeal did not need to reach

the legal issue of whether pain is a disability because the

panel instead held that it could not review the Board’s

factual determination that Sanchez-Benitez had failed to

establish a nexus between his neck pain and his service.

Id. at *2–3 (citing Sanchez-Benitez II, at 1361–62). The

Veterans Court noted that it has applied the legal holding

of Sanchez-Benitez I more than 100 times since that

opinion issued, and that it has relied upon or affirmed the

Board’s application of this legal principle at least 83

times. Id. at *4.

Saunders moved for panel review of Saunders I, a

one-judge decision. A Veterans Court panel granted her

motion but adopted the one-judge decision in its entirety,

as it found no legal or factual defects in the first ruling.

Saunders II, 2016 WL 4258493, at *1. The Veterans

6 SAUNDERS v. WILKIE

Court denied Saunders’s motion for en banc review and

entered judgment. Saunders timely appealed.

II. DISCUSSION

The parties dispute three issues on appeal:

(1) whether this court has jurisdiction to hear Saunders’s

challenge to the Veterans Court’s decision; (2) whether

pain alone, without a specific pathology or an otherwise-

identified disease or injury, can constitute a “disability”

under 38 U.S.C. § 1110; and (3) if the Veterans Court

erred in its legal interpretation, what is the proper reme-

dy. We address each issue in turn. As explained below,

we conclude that Saunders has raised a legal challenge to

the Veterans Court’s interpretation of “disability” that we

may review, that the Veterans Court erred in its interpre-

tation of § 1110, and that the proper remedy is to remand

for the Board to apply the proper legal framework.

A. Jurisdiction

Under 38 U.S.C. § 7292(a), this court has jurisdiction

to review a Veterans Court’s decision with respect to the

validity of a decision on a rule of law, or to the validity or

interpretation of any statute or regulation relied on by the

Veterans Court in making that decision. This court also

has jurisdiction to “interpret constitutional and statutory

provisions, to the extent presented and necessary to a

decision,” and to “decide all relevant questions of law.” 38

U.S.C. §§ 7292(c), (d)(1). “We review statutory and regu-

latory interpretations of the Veterans Court de novo.”

Johnson v. McDonald, 762 F.3d 1362, 1364 (Fed. Cir.

2014); accord DeLaRosa v. Peake, 515 F.3d 1319, 1321

(Fed. Cir. 2008). Absent a constitutional issue, however,

we lack jurisdiction to review factual determinations or

the application of law to the particular facts of an appeal

from the Veterans Court. 38 U.S.C. § 7292(d)(2); see

Guillory v. Shinseki, 603 F.3d 981, 986 (Fed. Cir. 2010);

Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).

SAUNDERS v. WILKIE 7

The parties dispute whether we may exercise jurisdic-

tion to hear this appeal. Saunders argues that we may

exercise jurisdiction because her appeal presents a pure

question regarding “the validity of a decision of the [Vet-

erans] Court on a rule of law”—whether pain alone can be

a disability under the meaning of § 1110. 38 U.S.C.

§ 7292(a); see also id. §§ (c)–(d). The Secretary contends

that Saunders failed to challenge various findings that

the Board and Veterans Court made as to her bilateral

knee claim, that this court lacks jurisdiction to review

those findings or the application of law to the facts, and

that those findings preclude review of the underlying

legal question Saunders raises. Id. § 7292(d)(2).

Despite the Secretary’s contentions otherwise, Saun-

ders has not challenged the factual findings of the Board

and Veterans Court. Nor have factual findings been made

that would preclude a finding of service connection for

Saunders’s claim if we conclude the Board and Veterans

Court erred by finding that Saunders’s pain could not be a

disability under § 1110. The Veterans Court noted that

Saunders did not dispute that her knee pain “cannot be

linked to any underlying pathology.” Saunders I, 2016

WL 3002862, at *2. But the Veterans Court did not make

findings that preclude our review: it did not find, for

example, that Saunders did not have an in-service dis-

ease, or that Saunders’s knee pain was unrelated to an

injury or disease—whether incurred in service or other-

wise. In fact, if the Board had found that Saunders’s in-

service diagnosis of PFPS was not a disease or injury, it

would not have reopened her claim based on new and

material evidence. J.A. 21–22. And neither the Board

nor the Veterans Court made an explicit finding that

Saunders’s knee pain does not limit the functionality of

her knee.

None of these findings prohibits this court’s review of

the legal issue Saunders raises—whether pain without an

accompanying pathology can constitute a “disability”

8 SAUNDERS v. WILKIE

under § 1110. The Secretary acknowledges, and the

Veterans Court found, that Saunders focused her argu-

ments before the Veterans Court on the legal questions of

whether pain alone constitutes a § 1110 disability and

whether the “holding” of Sanchez-Benitez I was merely

dicta. And there is no real dispute between the parties

that the Board and Veterans Court resolved Saunders’s

claim based solely on the holding of Sanchez-Benitez I,

and our failure to overturn that holding in Sanchez-

Benitez II. Saunders I, 2016 WL 3002862, at *2, *6; J.A.

22.

The critical questions, thus, in resolving Saunders’s

challenge are legal in nature—we must determine wheth-

er: (1) our decision in Sanchez-Benitez II requires a find-

ing that pain cannot be a disability under the meaning of

§ 1110; and (2) if Sanchez-Benitez II does not require that

conclusion, the statutory language instructs or permits

finding that pain can serve as a disability. These are

questions of law, and we therefore may exercise jurisdic-

tion to review this challenge under 38 U.S.C. § 7292(a).

B. Pain Can Constitute a Disability

Under 38 U.S.C. § 1110

Saunders argues that the Veterans Court erred as a

matter of law in holding that pain alone, without an

accompanying pathology or identifiable condition, cannot

constitute a “disability” under § 1110. This statute ex-

plains that wartime veterans are entitled to disability

compensation:

For disability resulting from personal injury suf-

fered or disease contracted in line of duty, or for

aggravation of a preexisting injury suffered or

disease contracted in line of duty, in the active

military, naval, or air service, during a period of

war, the United States will pay to any veteran

thus disabled and who was discharged or released

under conditions other than dishonorable from the

SAUNDERS v. WILKIE 9

period of service in which said injury or disease

was incurred, or preexisting injury or disease was

aggravated, compensation as provided in this sub-

chapter, but no compensation shall be paid if the

disability is a result of the veteran’s own willful

misconduct or abuse of alcohol or drugs.

38 U.S.C. § 1110 (emphasis added). A veteran seeking

compensation under this provision must establish three

elements: “(1) the existence of a present disability; (2) in-

service incurrence or aggravation of a disease or injury;

and (3) a causal relationship between the present disabil-

ity and the disease or injury incurred or aggravated

during service.” Shedden v. Principi, 381 F.3d 1163, 1167

(Fed. Cir. 2004). Saunders challenges the Veterans

Court’s legal treatment of the first prong: “the existence of

a present disability.”

As noted, Sanchez-Benitez II does not control the out-

come of this case. There, the panel explicitly declined to

resolve the legal issue before us in this case. Sanchez-

Benitez II, at 1361–62. The panel instead concluded that

the Board and Veterans Court found that the veteran had

not met the nexus requirement as his current pain could

not be attributed to the trauma he experienced while in

service. Id. at 1362. We explicitly did not pass judgment

on the legal issue before us in that case. Id. at 1361.

And, we characterized as dicta the very holding in

Sanchez-Benitez I that is at issue here. Id.

We therefore turn to the language of the statute, “[a]s

in any case of statutory construction, our analysis begins

with the language of the statute.” Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999) (internal quotation

marks omitted); see also Allen v. Principi, 237 F.3d 1368,

1375 (Fed. Cir. 2001) (“The starting point in every case

involving construction of a statute is the language itself.”

(quoting Madison Galleries, Ltd. v. United States, 870

F.2d 627, 629 (Fed. Cir. 1989))). As noted, § 1110 imposes

10 SAUNDERS v. WILKIE

a requirement that a disability 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.” But this statute does not

expressly define what constitutes a “disability.” “In the

absence of an express definition,” the presumption is that

“Congress intended to give [statutory] words their ordi-

nary meanings.” Terry v. Principi, 340 F.3d 1378, 1382–

83 (Fed. Cir. 2003) (citing Asgrow Seed Co. v. Winterboer,

513 U.S. 179, 187 (1995)).

1. “Disability” Refers to Functional Impairment

The parties do not seem to dispute that the term “dis-

ability” refers to a functional impairment, rather than the

underlying cause of the impairment. The Secretary

acknowledges that “the term ‘disability’ refers to a condi-

tion that impairs normal functioning and reduces earning

capacity.” Appellee Br. 21. The Secretary also acknowl-

edges that 38 U.S.C. § 1155, the authority for the sched-

ule for rating disabilities, “associates the concept of

disability with a reduction or impairment in earning

capacity.” Id. at 22. And, the Secretary concedes that

“VA regulations invoke functional limitation as the indi-

cator of reduced earning capacity and the barometer of

disability.” Id.

This conclusion comports with the plain language of

§ 1110, which specifically 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,” not that the disability itself must be the qualifying

personal injury or aggravation suffered by the veteran.

The dictionary definitions of “disability” offered by the

parties reflect that the plain and ordinary meaning of the

term relates to functional incapacitation or impairment,

rather than the particular underlying cause of that condi-

tion. See, e.g., Disability, Merriam-Webster’s Collegiate

SAUNDERS v. WILKIE 11

Dictionary 354 (11th ed. 2014) (defining “disability” as

“the condition of being disabled,” that is, a “limitation in

the ability to pursue an occupation because of a physical

or mental impairment.”); Disability, Webster’s Third New

International Dictionary 642 (1961) (defining “disability”

as “the inability to pursue an occupation or perform

services for wages because of physical or mental impair-

ment”); Disability, Dorland’s Illustrated Medical Diction-

ary 526 (32d ed. 2012) (defining “disability” as “an

incapacity or lack of the ability to function normally; it

may be either physical or mental or both”). In other

words, while a diagnosed condition may result in a disa-

bility, the disability itself need not be diagnosed.

The VA’s disability rating regulations also reflect this

meaning, as the percentages in the disability rating

schedule “represent as far as can practicably be deter-

mined the average impairment in earning capacity”

resulting from “all types of diseases and injuries encoun-

tered as a result of or incident to military service . . . . and

their residual conditions in civil occupations.” 38 C.F.R.

§ 4.1 (emphases added); cf. Davis v. Principi, 276 F.3d

1341, 1344 (Fed. Cir. 2002) (labeling 38 C.F.R. § 4.1 “[t]he

Secretary’s definition of ‘disability,’” and acknowledging

that “[t]he Secretary’s definition of ‘disability’ comports

well with its common usage.”). The VA’s regulation on

“functional impairment” explains that “[t]he basis of

disability evaluations is the ability of the body as a whole,

or of the psyche, or of a system or organ of the body to

function under the ordinary conditions of daily life includ-

ing employment.” 38 C.F.R. § 4.10 (“Functional impair-

ment”) (emphasis added).

This definition also comports with the purpose of vet-

erans compensation: to compensate for impairment to a

veteran’s earning capacity. The en banc Veterans Court

has recognized this point in Allen v. Brown, 7 Vet. App.

439, 448 (1995), where it explained “that the term ‘disabil-

ity’ as used in § 1110 refers to impairment of earning

12 SAUNDERS v. WILKIE

capacity.” It also noted that, “in view of the statutory

purpose to compensate veterans based upon degree of

impairment of earning capacity, the direction in § 1110 to

pay compensation ‘[f]or disability’ resulting from injury or

disease may reasonably be construed as a direction to pay

compensation for impairment of earning capacity result-

ing from such injury or disease.” Id. And, as Saunders

points out, the legislative history of veterans compensa-

tion highlights Congress’s consistent intent that there

should be a distinction between a disability and its cause.

See, e.g., War Risk Insurance Act Amendments, Pub. L.

No. 65-90, § 300, 40 Stat. 398, 405 (1917) (“That for death

or disability resulting from personal injury suffered or

disease contracted in the line of duty, . . . the United

States shall pay compensation as hereinafter provided.”);

An Act to grant Pensions, 12 Stat. 566, 566 (1862) (estab-

lishing pensions for service members who were or became

“disabled by reason of any wound received or disease

contracted . . . in the line of duty”).

When Congress has decided to depart from this dis-

tinction by defining “disability” as equivalent to an injury

or disease, it has done so explicitly, according to Saun-

ders. For example, in chapter 17 of Title 38, referring to

VA medical and nursing facilities, Congress stated that

“[t]he term ‘disability’ means a disease, injury, or other

physical or mental defect.” 38 U.S.C. § 1701(1) (2016).

But Congress has made no such explicit statement as to

the meaning of “disability” in § 1110, and the en banc

Veterans Court in Allen expressly held that the § 1701(1)

definition does not apply to compensation benefits. 7 Vet.

App. at 446. The Veterans Court reached this conclusion

after finding that Congress had “specifically limited the

application of the § 1701(1) definition of ‘disability’” to

subchapter 17, and that “the statutory purpose to com-

pensate veterans based upon degree of impairment of

earning capacity” led to a different meaning of the term in

§ 1110—namely, that it “refers to impairment of earning

SAUNDERS v. WILKIE 13

capacity.” Id. at 447–48. Applying that definition, the

court held that “any additional impairment of earning

capacity resulting from an already service-connected

condition, regardless of whether or not the additional

impairment is itself a separate disease or injury caused by

the service-connected condition, shall be compensated.”

Id. at 448 (emphasis in original).

For these reasons, we find that “disability” in § 1110

refers to the functional impairment of earning capacity,

not the underlying cause of said disability.

2. Pain Alone May Be a Functional Impairment

We next consider whether pain alone can serve as a

functional impairment and therefore qualify as a disabil-

ity, 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 disabil-

ity can exist in those cases, and that a formal diagnosis is

not always required.” Appellee Br. 26 (emphasis in

original).

Dictionary definitions for the term “impairment” sup-

port the conclusion that pain can serve as a functional

impairment. Dorland’s Medical Dictionary defines “im-

pairment” as “any abnormality of, partial or complete loss

of, or loss of the function of, a body part, organ, or sys-

tem,” and this dictionary uses pain as a specific example

of an impairment. Impairment, Dorland’s Illustrated

Medical Dictionary 922 (32d ed. 2012). Webster’s defines

“impair” as “diminish in quantity, value, excellence, or

strength.” Impair, Webster’s Third New International

Dictionary 1131 (1961). And, Merriam-Webster’s defines

14 SAUNDERS v. WILKIE

“impaired” as “disabled or functionally defective.” Im-

paired, Merriam-Webster’s Collegiate Dictionary 622

(11th ed. 2014). None of these definitions preclude find-

ing that pain may functionally impair a veteran.

The VA’s disability rating regulations also treat pain

as a form of functional impairment. For example, 38

C.F.R. § 4.10 reads that “[t]he basis of disability evalua-

tions is the ability of the body as a whole, or of the psyche,

or of a system or organ of the body to function under the

ordinary conditions of daily life including employment.”

We have explained that the “functional loss” regulation,

38 C.F.R. § 4.40, “makes clear that functional loss may be

due to pain and that pain may render a part seriously

disabled.” Thompson v. McDonald, 815 F.3d 781, 785–86

(Fed. Cir. 2016). Other regulations account for pain in

determining the nature of a veteran’s disability; one

regulation identifies “[p]ain on movement” as one of the

“factors of disability” in evaluating joints. 38 C.F.R.

§ 4.45(f). Another regulation notes that painful motion is

a consideration in evaluating disabilities of the pelvic

bones. Id. § 4.67. And “pain” in the lumbosacral and

sacroiliac joints is to be given “careful consideration.” Id.

§ 4.66. Similarly, “fatigue-pain” is a “cardinal sign[]” of

muscle disability. Id. § 4.56(c). And, in Sanchez-Benitez

II, we explained that, in the context of rating decisions,

“[i]t is thus clear that pain is not wholly irrelevant to the

assessment of a disability for which a veteran seeks

compensation. . . . In each of [38 C.F.R. §§ 4.40, 4.45, and

4.56], pain is considered in connection with assessing the

extent of a particular stated disability, i.e., disability

being the functional loss of normal body working move-

ments (section 4.40), disability in the joints (section 4.45),

SAUNDERS v. WILKIE 15

and disability of the muscles (section 4.56).” Id. at 1361. 2

Although the Secretary argues that the assignment of

ratings is downstream from the initial determination that

a veteran has a disability, these regulations indicate how

the VA interprets the role of pain in assessing disability,

and thus they are relevant to the question of whether

pain can be a disability.

Given this broad recognition that pain is a form of

functional impairment, if Congress intended to exclude

pain from the definition of disability under § 1110, it

would have done so expressly. See, e.g., Hamilton v.

Lanning, 560 U.S. 505, 517 (2010) (explaining that, if

Congress intended for a term “to carry a specialized—and

indeed, unusual—meaning” in the relevant statutory

provision, “Congress would have said so expressly.”). For

example, Congress explicitly defined “disability” in the

Social Security Act as the “inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment . . . .” 42

U.S.C. § 423(d)(1)(A) (2016). Under that statute, the

physical or mental impairment must “result[] from ana-

tomical, physiological, or psychological abnormalities

which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.” Id. § 423(d)(3).

And, “[a]n individual’s statement as to pain . . . shall not

alone be conclusive evidence of disability as defined in

this section,” as “there must be medical signs and find-

ings, established by medically acceptable clinical or

2 The Veterans Court has also recognized this prin-

ciple. In Schafrath v. Derwinski, 1 Vet. App. 589 (1991),

the Veterans Court faulted the Board for denying com-

pensation to a veteran experiencing disabling pain as a

result of a service-connected elbow injury, because the

Board ignored his reported pain. Id. at 591–93.

16 SAUNDERS v. WILKIE

laboratory diagnostic techniques, which show the exist-

ence of a medical impairment that results from anatomi-

cal, physiological, or psychological abnormalities which

could reasonably be expected to produce the pain.” Id.

§ 423(d)(5)(A). None of this language exists in the veter-

ans context, and we find no other indication that Congress

intended that pain be excluded from the definition of a

“disability” under § 1110.

An Act of Congress “should not be read as a series of

unrelated and isolated provisions.” Gustafson v. Alloyd

Co., Inc., 513 U.S. 561, 570 (1995). We must read the

words of a statutory provision “in their context and with a

view to their place in the overall statutory scheme.” King

v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000)). Contrary to the Secretary’s argument, 38 U.S.C.

§ 1117 does not indicate that pain devoid of underlying

current pathology is not compensable under § 1110.

Section 1117 establishes a presumption of service connec-

tion for certain Persian Gulf War veterans with qualifying

chronic disabilities caused by undiagnosed illnesses or

chronic multisymptom illnesses. This section specifically

recognizes pain as a form of functional loss, specifying

that “[m]uscle pain” and “[j]oint pain” can be manifesta-

tions of an undiagnosed illness and therefore can consti-

tute a disability even in the absence of a diagnosis. 38

U.S.C. § 1117(g)(4)–(5) (2016). But nothing in § 1117

addresses whether pain alone can be a disability under

§ 1110—in fact, § 1117 reflects an understanding that

pain may be a disability even in the absence of a diagno-

sis. To this end, we have previously stated that “the

Veterans Court erred in concluding that pain cannot

evidence a qualifying chronic disability under § 1117.”

Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014).

Section 1117 provides a presumption of service connection

for a particular subset of disabilities arising from Persian

Gulf service, but there is no reason to assume that § 1117

SAUNDERS v. WILKIE 17

precludes an interpretation of § 1110 that encompasses

pain as a disability.

In light of this, the Veterans Court’s interpretation of

§ 1110 is not persuasive. In Sanchez-Benitez I, the Veter-

ans Court acknowledged that “pain often warrants sepa-

rate and even additional consideration during the course

of rating a disability.” 13 Vet. App. at 285 (citing to 38

C.F.R. §§ 4.40 (must consider pain in relation to function-

al loss of musculoskeletal system), 4.45 (must consider

pain on movement in rating joint disability), 4.56 (1998)

(must consider pain in evaluating muscle disability)).

But, there, the Veterans Court failed to offer any citation

or reasoned analysis to explain its holding that pain alone

could not qualify as a disability under the first prong of

the service-connection test. Id. The Veterans Court did

not discuss issues related to disability, pain, or functional

impairment, nor did the Veterans Court in Saunders I

perform any statutory analysis when defending Sanchez-

Benitez I’s holding. Saunders I, 2016 WL 3002862, at *5.

Sanchez-Benitez I’s holding reads out the distinction

Congress made in § 1110 between the requirement for a

disability and the requirement for in-service incurrence or

aggravation of a disease or injury. If Congress meant to

merge these requirements such that a disability must be a

presently-diagnosed disease or injury, it could have said

so explicitly, but it did not. “Absent persuasive indica-

tions to the contrary, we presume Congress says what it

means and means what it says.” Simmons v. Himmel-

reich, 136 S. Ct. 1843, 1848 (2016). And we have empha-

sized the distinction between the disability and

incurrence prongs in many cases, including in Sanchez-

Benitez II:

Thus, in order for a veteran to qualify for entitle-

ment to compensation under those statutes, the

veteran must prove existence of a disability, and

18 SAUNDERS v. WILKIE

one that has resulted from a disease or injury that

occurred in the line of duty.

Id. at 1360–61.

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 estab-

lishment 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.

As noted, the Secretary does not challenge most, if

any, of the rationale laid out above for why pain should be

treated as a functional impairment. Instead, the Secre-

tary argues that the definition Saunders proposes should

be limited to require that pain must affect some aspect of

the normal working movements of the body. 3 The Secre-

3 Saunders argues that, even under the definition

the Secretary proposes, her normal working movements

are inhibited by her pain and she would therefore satisfy

the disability prong. Although the Secretary attempts to

ascribe Saunders’s functional limitations primarily to

Saunders’s foot condition, because the Board recited a

finding of absenteeism when discussing the foot condition

but not the knee condition, Saunders rejects this position.

Saunders notes that the Board’s reference to increased

absenteeism as to the foot condition addressed the period

after the 2011 examiner report and was the basis on

which the Board ordered an additional VA examination of

Saunders’s feet. The parties dispute whether this finding

affects the relative contributions of Saunders’s foot and

knee conditions to the absenteeism noted in the 2011

examiner report. The examiner noted functional impair-

SAUNDERS v. WILKIE 19

tary cites to various Veterans Court decisions and VA

regulations in support of his proposal. See, e.g., Mitchell

v. Shinseki, 25 Vet. App. 32, 43 (2011) (“[P]ain must affect

some aspect of ‘the normal working movements of the

body’ such as ‘excursion, strength, speed, coordination,

and endurance,’ 38 C.F.R. § 4.40, in order to constitute

functional loss” (emphasis added)). The Secretary con-

tends that we agreed with this rationale in Thompson, as

evidenced by our statement that 38 C.F.R. § 4.40, a rating

regulation entitled “Functional Loss” and referencing in

relevant part disabilities of the musculoskeletal system,

requires proof that the applicant “cannot perform the

normal working movements of the body.” 815 F.3d at 786.

But the Secretary has failed to point to a convincing

reason to impose the requirement he proposes. This

requirement does not cover all scenarios in which pain

could amount to a functional limitation. As the Secretary

acknowledges, there are scenarios such as debilitating

headaches that could amount to functional impairment

but do not necessarily affect the normal working move-

ments of the body. Appellee Br. 26–27 n.11. The Veter-

ans Court has ruled that functional loss is compensable

even if the range of motion is not limited. Schafrath, 1

Vet. App. at 591–92 (noting that 38 C.F.R. § 4.40 contem-

plates multiple types of functional loss, and that function-

al loss is compensable regardless of whether it is caused

by pain or by limited flexion); Petitti v. McDonald, 27 Vet.

App. 415, 422–30 (2015) (rejecting Secretary’s argument

that 38 C.F.R. § 4.59, which governs the evaluation of

painful motion, requires evidence observed during range-

ment was a result of both the foot and knee conditions.

To the extent these factual findings should be clarified,

the Board will be able to do so on remand.

20 SAUNDERS v. WILKIE

of-motion testing, and rejecting the Secretary’s argument

that “the mere presence of joint pain is not sufficient.”).

We also reject the Secretary’s suggestion that pain

must be tied to physical evidence of a lack of functionality

and/or physical evidence of a current disease or injury.

The Secretary attempts to tie this proposed requirement

to the language of 38 C.F.R. § 4.40, which states that

“functional loss . . . may be due to pain, supported by

adequate pathology” (emphasis added). But the Secretary

does not explain why an in-service diagnosis of a disease

cannot provide “adequate pathology” to explain presently-

occurring pain. And, other portions of § 4.40 do not refer

to “pathology,” but instead state broadly that, for exam-

ple, “a part which becomes painful on use must be regard-

ed as seriously disabled.”

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 impair-

ment that affects a veteran’s earning capacity. For exam-

ple, the VA’s “Chronic Pain Primer” acknowledged that

“chronic pain can develop in the absence of the gross

skeletal changes we are able to detect with current tech-

nology” such as MRI or X-ray, and common causes like

muscle strain and inflammation “may be extremely

difficult to detect.” U.S. Dep’t of Veterans Affairs, VHA

Pain Management: Chronic Pain Primer,

http://web.archive.org/web/20170501045051/https://www.v

a.gov/PAINMANAGEMENT/Chronic_Pain_Primer.asp.

In some situations, such as for post-traumatic stress

disorder, herbicide exposure in Vietnam, and unexplained

illnesses affecting Middle East veterans, medical science

simply has been unable, as of yet, to diagnose the disa-

bling impact of service for veterans affected by these

conditions.

SAUNDERS v. WILKIE 21

We see no reason for the Secretary’s concern that this

holding will somehow improperly expand veterans’ access

to deserved service compensation for pain that did not

arise from a disease or injury incurred during service.

And nothing in today’s decision disturbs either of the

other requirements for demonstrating entitlement to

service connection—that the disability is linked to an in-

service incurrence or aggravation of a disease or injury.

We do not hold that a veteran could demonstrate ser-

vice 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, 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.

We hold that the Veterans Court erred as a matter of

law in holding that pain alone, without an accompanying

diagnosis or identifiable condition, cannot constitute a

“disability” under § 1110, because pain in the absence of a

presently-diagnosed condition can cause functional im-

pairment.

C. Remedy

Finally, the parties dispute the proper remedy in this

case, given our conclusion that the Veterans Court erred

in its legal interpretation. Saunders contends that the

Board’s and examiner’s findings mandate outright rever-

sal of the Board’s denial of her claim for service connec-

tion. The Secretary requests that we remand to the

Veterans Court for remand to the Board for further devel-

opment of Saunders’s claim. We agree with the Secretary

that remand is the appropriate remedy in this case.

22 SAUNDERS v. WILKIE

The Board reopened Saunders’s knee claim after find-

ing Saunders had presented new and material evidence

that “includes an impression of bilateral knee condition

that was likely caused by or a result of service.” J.A. 22.

The Board noted Saunders’s in-service diagnosis of PFPS

and Saunders’s complaints of knee pain following service.

Id. The Board also noted the examiner’s conclusion that

Saunders’s bilateral knee condition “was likely related to

the Veteran’s period of service.” Id. But the Board based

its rejection of Saunders’s claim solely on Sanchez-Benitez

I’s holding that pain alone cannot be a disability for the

purpose of VA disability compensation. Id.

The Board has not considered whether Saunders sat-

isfied her burden to show her bilateral knee condition

qualifies as a “disability” under the correct legal definition

for that term. More specifically, the Board made no

factual findings as to whether Saunders’s pain impaired

her function, or as to the scope of any such impairment.

The Board also has not determined whether Saunders

satisfied the incurrence and nexus prongs of the service

connection test. More specifically, the Board has not

made a factual finding as to whether Saunders’s pain, if it

qualifies as a disability, is traceable to an injury or dis-

ease that manifested itself during service. It could not

have done so, because it applied the Sanchez-Benitez I

holding which precluded finding Saunders’s pain to con-

stitute a disability. 4 Nor has the Board made explicit

4 Saunders contends that the Secretary has waived

any challenge to these prongs of the service-connection

test by failing to contest them before the Veterans Court.

We decline to find waiver here. The Secretary did discuss

its contention that Saunders failed to demonstrate pa-

thology for her pain, which implicates both the incurrence

and nexus prongs of the service-connection test. The

SAUNDERS v. WILKIE 23

findings that Saunders proved the existence of an in-

service incurrence or aggravation of a disease or injury, or

a causal relationship between her present alleged disabil-

ity and the disease or injury incurred or aggravated

during service.

We may not make these factual findings in the first

instance. The proper course of action is for the Veterans

Court to remand this matter to the Board. See Byron v.

Shinseki, 670 F.3d 1202, 1205 (Fed. Cir. 2012) (ordering

remand of factual determination to the Board “for further

development and application of the correct law” where

“the Board misinterprets the law and fails to make the

relevant initial factual findings” (internal quotations and

citation omitted)). On remand, the Board must determine

whether the examiner’s findings as to Saunders’s bilateral

knee condition amount to functional impairment under

the correct legal test for disability. To the extent neces-

sary, the Board must also make factual findings as to the

other prongs of the service-connection test.

III. CONCLUSION

For the reasons stated above, we find the Board legal-

ly erred as to its interpretation of the meaning of “disabil-

ity” under § 1110, as pain alone, without an

accompanying diagnosis of a present disease, can qualify

as a disability. We remand this action for further pro-

ceedings consistent with this opinion.

REVERSED AND REMANDED

COSTS

Costs to Saunders.

Board may examine this question on remand, as it fo-

cused its earlier analysis solely on the disability prong.