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.