MELBA J. SAUNDERS, Claimant-Appellant
ROBERT WILKIE, ACTING SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 15-975, Judge Coral Wong Pi-etsch.
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,
E. Porada, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Chad A. Readler,
Robert E. Kirschman, Jr., L. Misha Preheim; Y. Ken Lee,
Jonathan Krisch, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Newman, Dyk, and O'Malley, Circuit Judges.
O'MALLEY, CIRCUIT JUDGE
Saunders appeals from a decision of the United States Court
of Appeals for Veterans Claims ("the Veterans
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.
served on active duty in the Army from November 1987 until
October 1994. Saunders I, 2016 WL 3002862, at *1.
Saunders did not experience knee problems 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.
1994, Saunders filed a claim for disability compensation for
knee pain, hip pain, and a bilateral foot condition.
Id. The VA Regional Office ("RO") denied
Saunders's claim because she failed to report for a re-
quired medical examination. Saunders did not appeal that
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 merits. 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
2009, Saunders submitted a Notice of Disagreement, 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 treatment for a
knee condition. Saunders appealed this decision to the Board
of Veterans' Appeals ("the Board").
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 walking, that she was unable to stand for more
than a few minutes, and that sometimes she required use of a
cane or brace.
examiner diagnosed Saunders with subjective bilateral 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 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
causation was based on the chronology of events during
Saunders'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 diagnosed bilateral knee condition linked to
appealed to the Board. Before the Board, Saunders argued
that, because the examiner found that her knee conditions
were linked to her service, and because she was treated while
in service and afterwards for knee pain, she had sufficiently
demonstrated service connection for her condition. The Board
reopened Saunders'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 examiner
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 compensation." 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.
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.
Veterans Court also rejected Saunders's contention 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 alternative 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.
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 Court denied
Saunders's motion for en banc review and entered
judgment. Saunders timely appealed.
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 remedy.
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
interpretation of § 1110, and that the proper remedy is
to remand for the Board to apply the proper legal framework.
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 regulatory
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.
parties dispute whether we may exercise jurisdiction 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 [Veterans]
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 ...