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Court Says Pain Alone Is Disabling

Pain Alone Is Disabling

Earlier this year a federal court held that pain alone, absent any specific diagnosis or current disease, can be a disability.  The case is Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).   Melba Saunders served on active duty in the Army from November 1987 to October 1994.  During her service she was diagnosed and treated for patellofemoral pain syndrome.  A VA examiner noted Saunders experienced bilateral knee pain.  The examiner also concluded Saunders’s knee condition was service-connected.  But the examiner did not find a specific disability which would cause the pain.  The Board of Veterans Appeals denied Saunders’s claim.  It concluded 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.”

A veteran’s basic entitlement to disability is found in 38 U.S.C. § 1110.  It says the government will pay “for disability resulting from personal injury suffered or disease contracted in line of duty.”  The question before the court was whether pain, in and of itself, is a disability.  For years, the answer to that question was no.  The Saunders court reasoned that if the pain is disabling (in other words, limits the veteran’s ability), then pain itself is a disability.  This is true even in the absence of some identifiable illness, disease, or other ailment.

In the absence of some diagnosable disease or ailment, how does one prove pain? Lay evidence.  Keep a log.  Where does it occur in the body? When does it happen?  For how long?  What triggers it?  A veteran still must show an in-service disease, injury or event and evidence which relates the post-service pain to an in-service disease, injury or event.

Tens of thousands of veterans stand to benefit from this ruling.   For Saunders, the appellate court didn’t order the VA to grant her disability compensation.  It did direct the VA to re-evaluate her claim with the understanding that pain, alone, is disabling.

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About the Author

Adam Werner is a partner and practicing attorney at WHG. He specializes in personal injury cases, workers’ compensation claims, and veteran disability benefits. He routinely writes about personal injury and workers comp topics for the Werner, Hoffman, Greig & Garcia blog

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