NVLSP-Saunders V. Acting Sec Wilkie ----Pain

[Berta]

I posted this in the other topic but wanted it to be easy to search for- 

NVLSP and Its Private Law Firm Partner Persuade the Federal Circuit to Overturn 19-Year Precedent, VA Can Now Award Disability Benefits For Pain Related to Military Service

FOR IMMEDIATE RELEASE – April 4, 2018

WASHINGTON – In a sweeping legal victory for veterans, the U.S. Court of Appeals for the Federal Circuit overturned a 19-year lower court precedent which prohibited the Department of Veterans Affairs (VA) from awarding disability benefits to a veteran for disabling pain if it was not linked to a medical diagnosis.

“What this ruling means is that if a physician cannot diagnose the cause of the pain the veteran is experiencing, but the pain is related to an event, injury, or disease that occurred during the veteran’s military service, the veteran should now win disability benefits,” said Bart Stichman, executive director and co-founder of the National Veterans Legal Services Program (NVLSP) and one of the attorneys who represented the veteran in the case.

The Federal Circuit’s decision in Saunders v. Wilkie overturned the 1999 precedential decision issued by the Court of Appeals for Veterans Claims that said VA had no authority to award benefits for pain alone, if the pain was untethered to a medical diagnosis explaining its cause. 

NVLSP partnered with pro-bono counsel, Orrick, Herrington & Sutcliffe, LLP, on the case. They won the case on behalf of Gulf war veteran Melba Saunders, who served in the Army from November 1987 until October 1994.

Saunders did not experience knee problems before serving in the Army. During her service, however, she sought treatment for knee pain and was diagnosed with patellofemoral pain syndrome. Her exit examination reflected normal lower extremities but noted she had a history of swollen knee and hip joints and bone spurs on her feet.

News Room

NVLSP COURT VICTORY FOR VETERANS: VA CAN NOW AWARD BENEFITS FOR DISABLING PAIN

Released 4/4/18 | Tags: Class Actions

NVLSP and Its Private Law Firm Partner Persuade the Federal Circuit to Overturn 19-Year Precedent, VA Can Now Award Disability Benefits For Pain Related to Military Service

FOR IMMEDIATE RELEASE – April 4, 2018

WASHINGTON – In a sweeping legal victory for veterans, the U.S. Court of Appeals for the Federal Circuit overturned a 19-year lower court precedent which prohibited the Department of Veterans Affairs (VA) from awarding disability benefits to a veteran for disabling pain if it was not linked to a medical diagnosis.

“What this ruling means is that if a physician cannot diagnose the cause of the pain the veteran is experiencing, but the pain is related to an event, injury, or disease that occurred during the veteran’s military service, the veteran should now win disability benefits,” said Bart Stichman, executive director and co-founder of the National Veterans Legal Services Program (NVLSP) and one of the attorneys who represented the veteran in the case.

The Federal Circuit’s decision in Saunders v. Wilkie overturned the 1999 precedential decision issued by the Court of Appeals for Veterans Claims that said VA had no authority to award benefits for pain alone, if the pain was untethered to a medical diagnosis explaining its cause. 

NVLSP partnered with pro-bono counsel, Orrick, Herrington & Sutcliffe, LLP, on the case. They won the case on behalf of Gulf war veteran Melba Saunders, who served in the Army from November 1987 until October 1994.

Saunders did not experience knee problems before serving in the Army. During her service, however, she sought treatment for knee pain and was diagnosed with patellofemoral pain syndrome. Her exit examination reflected normal lower extremities but noted she had a history of swollen knee and hip joints and bone spurs on her feet.

After leaving the military, she suffered with pain from bilateral knee disorders. In 1994, Saunders filed a VA claim for disability compensation for knee pain, hip pain, and a bilateral foot condition. The VA Regional Office denied it. She filed a reopened VA claim for bilateral knee pain in 2008 and was denied again. She appealed to the Board of Veterans’ Appeals which remanded the case to the Regional Office for additional evidence.

A 2011 VA exam found that Saunders had functional limitations on walking, that she was unable to stand for more than a few minutes, and that sometimes she required use of a cane or brace. The VA physician diagnosed Saunders with bilateral knee pain and concluded that Saunders’ knee condition was at least as likely as not caused by her military service.  Nonetheless, the Board of Veterans’ Appeals denied the claim, explaining that VA is not authorized to pay disability compensation for “pain” alone, without a medical diagnosis for the pain.  The Board cited in support the 1999 Veterans Court decision in Sanchez-Benitez v. West, which held that “pain alone is not a disability for the purpose of VA disability compensation.”

With NVLSP’s help, Ms. Saunders appealed this Board decision to the Court of Appeals for Veterans Claims in 2015.  Relying on its 1999 precedent in Sanchez-Benitez v. West, the Veterans Court affirmed the Board’s denial of her 2008 bilateral knee claim. Ms. Saunders then appealed this 2016 decision of the Veterans Court to the Federal Circuit. 

The Federal Circuit’s decision in Saunders v. Wilkie should affect thousands of disabled veterans suffering from pain related to their military service.  Over the last 19 years, the Court of Veterans Appeals cited the precedent invalidated by the Federal Circuit in over 100 individual appeals filed by veterans in the Veterans Court.  Moreover, the Board of Veterans’ Appeals cited the Veterans Court’s now-invalidated precedent in more than 11,000 individual Board decisions.

“The Federal Circuit’s ruling is a significant victory for disabled veterans, like our client Melba Saunders, who have served their country in wartime and are now unable to work to their full capacity as a result,” said Mel Bostwick, a partner at Orrick, Herrington & Sutcliffe, LLP who argued the case before the court.

“Congress recognized that the nation owes these veterans for their sacrifices, and the court today vindicated the common-sense notion that this debt does not depend on whether a veteran’s disabling pain can be labeled with a specific medical diagnosis. We are pleased with the court’s straightforward application of the law that corrects a decades-long error by the Veterans Administration,” said Bostwick.

About NVLSP
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1980. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the federal benefits they have earned through their service to our country. NVSLP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

Media contact: Ami Neiberger-Miller, 703.887.4877, ami@steppingstoneLLC.com

Director of Communications: Pamela Goldsmith, 202.702.2655, Pamela@nvlsp.org

Source: : http://www.nvlsp.org/news-room/press-releases/court-victory-for-veteransva-can-now-award-disability-benefits-for-pain-rel

 

[Buck52]

I don't throuly understand this ruling?

If a Veteran has been S.C.at 100% for a condition caused from his/her military service and has pain because of this condition and is getting full compensation for this condition through the VA claims process, and now get compensated for that pain  who makes the decision for the degree of pain and will they say this is pyramiding?  or will the VA Come back and say veteran is being paid for pain and suffering? claim for pain denied.

I just can't see how they can rate pain on top of a  alerady S.C. Condition and rated

Example

Veterans with PTSD and S.C.

Say at 70% to 100% PTSD that veteran is in pretty bad shape at those % b/c they go by the symptoms ..ok say the veteran is not in pain 70% of the time but has  bad panic high anxiety attacks ON OCCASION when out in public or has company over or for any reason  and has a bad panic anxiety attact   that causes a lot of chest pain(feels like we're having  heart attact) and is very very painful   

How would they rate the pain and would the veteran be entitled to that pain even when theres is no pain in between the panic attacks?

Or is this going to be for veterans only that has a severe back pain, muscle pain or pain from disease like cancer,arthritis,fibro  ect,,ect,, and its constant and from surgery for temp compensation?

or is the ruling mostly for veterans that have been denied time & time again for S.C. And has pain with the condition they claim and was not diagnose for the pain but gets a Diagnosis for pain in the near future and likey to be granted compensation for Pain?

Edited April 6, 2018 by Buck52

[Berta]

Ms Saunders is on remand to try again to get an SC rating for a different  condition.

There is a lot to this case and I feel better after reading the win that came when NVLSP partnered with pro-bono counsel, Orrick, Herrington & Sutcliffe, LLP, on the case. They won the case on behalf of Gulf war veteran Melba Saunders, who served in the Army from November 1987 until October 1994.

She is unable to work due to this condiion, but time will tell,if she receives TDIU or 100% or whatever rating they determine for pain...I have no idea how they will rate it.

I have been trying to backtrack her case to the US CAVC and also to the BVA.

 

 

[broncovet]

I actually agree with Buck.  Im not sure how this will help Vets.

Quote

What this ruling means is that if a physician cannot diagnose the cause of the pain the veteran is experiencing, but the pain is related to an event, injury, or disease that occurred during the veteran’s military service, the veteran should now win disability benefits,” said Bart Stichman, executive director and co-founder of the National Veterans Legal Services Program (NVLSP) and one of the attorneys who represented the veteran in the case.

This makes no sense to me.  Ok, so, if the Doc does not know what is causing the pain, how could he opine that this unknown caused pain was related to military service, and support it with a medical rationale.

I guess the nexus would look like this:

Quote

"While I dont know what is causing this pain, its at least as likely as not related to service".  

This is an oxymoron.  If he does not know what is causing the pain, how can the doc say its related to service??

[Buck52]

It may help veterans like Ms saunders that have reopened claims for her pain and suffering but if she had established S.C. then her claim could have took another turn and just a matter of Specialist to  nexus her condition to be related to her military service and his/her opinion the reasons she has the condition along with the pain this condition causes.  or something to this effect.

I can see how this ruling will help unadjudicated veterans or veterans that have been denied time and time again and is accepted in a reopen claim.

 agree with the NVLSP Attorneys

Orrick, Herrington & Sutcliffe, LLP who argued the case before the court.

“Congress recognized that the nation owes these veterans for their sacrifices, and the court today vindicated the common-sense notion that this debt does not depend on whether a veteran’s disabling pain can be labeled with a specific medical diagnosis. We are pleased with the court’s straightforward application of the law that corrects a decades-long error by the Veterans Administr

Edited April 6, 2018 by Buck52

[Berta]

I was unable to find USCAVC 16-2947- and hoped via the CAVC case,I could find her BVA award-= I will keep trying BUT

I dont think this claim was handled right from the gitgo. No one seemed to ever suggest that she get an IMO -then again, 

Ms. Saunders missed the initial  C& P exam. She did have an inservice nexus.

DeLuca involves the pain factor- I dont know how this decision will impact on veterans.

This part bothers me:

"Congress recognized that the nation owes these veterans for their sacrifices, and the court today vindicated the common-sense notion that this debt does not depend on whether a veteran’s disabling pain can be labeled with a specific medical diagnosis. We are pleased with the court’s straightforward application of the law that corrects a decades-long error by the Veterans Administration,” said Bostwick."

Yeah right- but the fact remains that a non VA doctor might definitely be able to come up with a " specific medical diagnosis."

[soriol36]

In my case, I was denied service connection for my knees and back pain in July 2015. The rationale they provided was that even though, I have medical treatment records from service showing that I suffered from knees pain and back pain, the VA could not grant service connection disability just on the basis of pain. I have service treatment records and post-separation treatment records from the VA medical medical center, however this was not enough as I didn't have a medical diagnosis for these conditions. 

If I am understanding this correctly, this means that I should be granted service connected disability for these conditions. I already have a claim to reopen these conditions, I wonder how this new rulling will affect my claim?