When pain alone can qualify as a VA disability — Wait v. Wilkie

“Part of the pelvis: the hip bone. Pencil and watercolour drawing by J.C. Whishaw, 1852/1854.” is licensed under CC BY 4.0

Wait v. Wilkie, CAVC No. 18-4349 (August 26, 2020)

The United States Court of Appeals for Veterans Claims (“Veterans Court”) continues to elaborate on what evidence necessary to establish a current disability in the in the aftermath of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which ended the VA’s entrenched practice of requiring a medical diagnosis for compensation.

The Federal Circuit, in its decision Saunders v. Wilkie, rolled back a long-time VA rule that pain alone without a diagnosis cannot constitute a disability for purposes of VA disability compensation benefits. It held that the word “disability” is not defined by statute (38 U.S.C. § 1110) and therefore must bet attributed its ordinary meaning, which the Federal Circuit provided: “functional impairment of earning capacity.” With this definition in hand, the Federal Circuit revolutionized how the VA must treat non-diagnosed illnesses, by ruling that the experience of 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.” Not all subjective reports of pain would qualify – the pain must cause functional impairment of earning capacity.

This holding by the Federal Circuit has rippled through the Veterans Court. Recently, for instance, in Martinez-Bodon, the Veterans Court confronted the implications of Saunders for mental health claims, and held that a diagnosis was still required for psychological conditions.

In Wait v. Wilkie, a U.S. Army veteran received a medical discharge from service in 2008. While in service that year, he had sought medical treatment for hip pain. Five years later, he filed a claim with the VA for disability compensation. He submitted VA medical records showing that he continued to seek medical treatment for hip pain. The Board of Veterans’ Appeals denied his hip claim. The Board held, first, that his hip pain did not include a current clinical diagnosis. The Board then held, referencing the Federal Circuit’s Saunders decision, that while pain accompanied by functional impairment that affects earnings capacity may constitute a disability, that the veteran had not demonstrated that his hip pain rose to the level of disability Saunders contemplated.

The main issue for the Veterans Court in Wait was what, exactly, a veteran must show to demonstrate that his pain rises to the level of functional impairment of earning capacity. The Veterans Court concluded that the VA’s rating schedule “may serve as a proxy for determining whether certain manifestations may impair earning capacity.” But a veteran cannot prevail merely by selecting a schedule rating that matches his symptoms.  He must show “competent evidence specific to the claimant” that his symptoms reflect the levels contemplated by the codes.  Unfortunately for Mr. Wait, the Veterans Court held that he had not provided medical evidence that his hip pain had caused him sleeplessness or trouble sitting.

The take-away here is that the Veterans Court claws back a great deal that the Federal Circuit gave. A veteran’s best practice is still go gather medical evidence that pain is interfering in specific ways that have an economic impairment as reflected in the VA’s rating schedule.



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