Court Relies on Saunders to Remand the Board Decision Denying Service Connection for Veteran’s Back Condition
CCK Law: Our Vital Role in Veterans Law
Factual and Procedural History
The Veteran served on active duty in the United States Air Force from August 1985 to August 1990, and then in the Air National Guard until August 1993. During a June 1986 procedure to remove her wisdom teeth, the Veteran was injected with Demerol in her hip, and a fragment of the needle broke off into her muscle. In September 1992, she wrote to her supervisors explaining that due to the pain caused by the foreign object lodged in her back, she was not as fit as service required. The Veteran subsequently asked to resign from the Air National Guard for medical reasons. Her commander excused her from future unit training assemblies rather than discharging her, and she ultimately left service as scheduled in August 1993. Shortly after, she was granted service connection for a needle fragment in her hip.
In September 2009, she filed a claim for benefits for low back pain, but was quickly denied. The Veteran submitted a Notice of Disagreement in which she stated that, in September 1992, a private X-ray revealed that the source of her pain was the needle fragment and that her pain became worse during her period of service in the Air National Guard until, ultimately, she felt she could no longer serve. She was denied again but failed to perfect her appeal to the Board, and the decision became final. In September 2011, the Veteran sought to reopen her claim for benefits for a low back disability, but the Regional Office determined the reopening was not warranted because she lacked new and material evidence. She continued to appeal this finding to the Board and in May 2015, the Board determined that new and material evidence had been submitted to reopen the claim and remanded the matter for additional development. Specifically, the Board ordered VA to provide an examination.
In December 2015, the Veteran underwent a VA examination for her back and hip conditions. The examiner opined that the Veteran’s back condition was not related to service, because her hip pain is localized and there is no other evidence that she injured her back in service. In regards to her hip pain, the examiner confirmed that it was at least as likely as not that the embedded broken needle was the cause of the hip pain. Nonetheless, the Board continued to deny the Veteran’s claims based on the examiner’s findings.
CCK appeals to the CAVC
CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied entitlement to benefits for the Veteran’s low back disability. CCK argued that the Board failed to adequately consider whether the relevant low back disability was the Veteran’s low back pain and whether her low back pain was caused by, or secondary to, an in-service injury. In making this argument, CCK cited to Saunders, which holds that “pain alone, without an accompanying diagnosis or identifiable condition” can constitute a disability because pain in the absence of a presently-diagnosed condition can cause functional impairment.
Court remands Veteran’s case for the Board to address Saunders
CCK argued, and the Court agreed, that it was not clear that the Board addressed service connection for the Veteran’s low back pain itself, separate from her diagnosed back condition (i.e. degenerative disc disease). Accordingly, the Court remanded the Veteran’s case for the Board to address the Saunders argument in the first instance.
