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Military Update: Pain alone can now be VA claim

By: tom philpott Military Update -by name the gazette
April 15, 2018 Updated: April 15, 2018 at 4:10 am
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photo - tom philpott,
tom philpott, 

Lawyers at the nonprofit National Veterans Legal Services Program 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 nonprofit 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 lawyers found the promising case it sought. This month, the U.S. Court of Appeals for the Federal Circuit decided it favorably for Army veteran Melba Saunders. The ruling, 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 the program and one of Saunders' attorneys. However, he said, "lack of a medical diagnosis shouldn't prevent the VA from granting disability benefits."

A three-judge panel on the federal circuit appeals court agreed, finding that the veterans claims court, in rejecting Saunders' appeal 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 pre-existing injury suffered or disease contracted in line of duty'."

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. 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. Saunders' "was a very good case to bring a challenge" 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.'"

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To comment, write Military Update, P.O. Box 231111, Centreville, VA, 20120, or email milupdate@aol.com.

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