Veteranclaims’s Blog

September 12, 2014

Joyner v. McDonald, No. 2013-7126(Decided: September 12, 2014); Pain Can Evidence Disability; 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(ii)

Excerpt from decision below:

“Because the Veterans Court misinterpreted 38 U.S.C. § 1117, we vacate and remand.”

====================

“38 C.F.R. § 3.317(a)(1)(ii). However, this does not, as the government contends, compel the conclusion that a veteran must be subjected to all possible medical testing available and then “diagnosed” with an “undiagnosed illness” after all possible medical conditions have been
ruled out.”

====================

“CONCLUSION
Because the Veterans Court erred in concluding that pain cannot evidence a disability under § 1117, we vacate and remand to the Veterans Court for further proceedings in accordance with this opinion.”

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United States Court of Appeals for the Federal Circuit
______________________
TARELL JOYNER,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7126
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3700, Judge Lawrence B.
Hagel.
______________________
Decided: September 12, 2014
______________________
RACHEL M. MCKENZIE, Orrick, Herrington & Sutcliffe
LLP, of Washington, DC, argued for claimant-appellant.
With her on the brief was ERIC A. SHUMSKY. Of counsel
on the brief were BARTON F. STICHMAN and PATRICK A.
BERKSHIRE, National Veterans Legal Services Program, of
Washington, DC.
TARA K. HOGAN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were STUART F.
2 JOYNER v. MCDONALD
DELERY, Assistant Attorney General, BRYANT G. SNEE,
Acting Director, and SCOTT D. AUSTIN, Assistant Director.
Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and MARTIE ADELMAN, Attorney,
United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before PROST, Chief Judge, MOORE, and CHEN, Circuit
Judges.
MOORE, Circuit Judge.
Tarell Joyner appeals from the decision of the Court of Appeals for Veterans Claims (Veterans Court) denying his claim for compensation for neck pain. Because the Veterans Court misinterpreted 38 U.S.C. § 1117, we vacate and remand.

BACKGROUND
Mr. Joyner served in the Marine Corps and completed
one tour of duty in the Persian Gulf. During service, Mr.
Joyner was treated twice for neck pain. However, his
separation from service examination indicated that his
neck was “normal.”
Mr. Joyner later filed a claim with the Department of
Veterans Affairs (VA) for disability compensation for
chronic neck pain and other conditions. The VA regional
office denied his claim for benefits for his neck pain. The
Board of Veterans’ Appeals (Board) affirmed, concluding
that Mr. Joyner did not have a diagnosed neck condition
and thus was not entitled to service connection under 38
U.S.C. § 1110—a general provision that provides compensation
for disabilities suffered in the line of duty. In re
Joyner, No. 08-03 962, slip op. at 20–21 (Bd. Vet. App.
Sept. 28, 2011). Mr. Joyner appealed to the Veterans
Court, arguing that the Board erred by failing to consider
whether he is entitled to service connection under 38
JOYNER v. MCDONALD 3

U.S.C. § 1117—an additional disability compensation
provision that applies to Gulf War Veterans. The Veterans
Court held that Mr. Joyner is not entitled to compensation
under § 1117 because pain does not constitute a
disability. Joyner v. Shinseki, No. 11-3700, 2013 WL
2157239, at *4 (Vet. App. May 20, 2013).
Mr. Joyner appeals the Veterans Court’s decision. We
have jurisdiction pursuant to 38 U.S.C. § 7292(a).

DISCUSSION
We review legal determinations of the Veterans Court
de novo. Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed.
Cir. 2008). We do not review the underlying factual
determinations or application of law to facts. Id.
We hold that the Veterans Court erred in concluding
that pain cannot evidence a qualifying chronic disability
under § 1117. Section 1117 provides that the Secretary
may pay compensation “to a Persian Gulf Veteran with a
qualifying chronic disability that became manifest” “during
service on active duty . . . in the Southwest Asia
theater of operations.” 38 U.S.C. § 1117(a). A “qualifying
chronic disability” is a “chronic disability” that may result
from “[a]n undiagnosed illness.” Id. § 1117(a)(2)(A).
Symptoms that “may be a manifestation of an undiagnosed
illness” include “muscle pain” and “joint pain.” Id.
§ 1117(g)(4), (5). Thus, the plain language of § 1117
makes clear that pain, such as muscle pain or joint pain,
may establish an undiagnosed illness that causes a qualifying
chronic disability. The regulation implementing
§ 1117, 38 C.F.R. § 3.317, likewise states that “muscle
pain” or “joint pain” “may be manifestations of undiagnosed
illness.” 38 C.F.R. § 3.317(b)(4), (5).
The government concedes that pain as a manifestation
of an undiagnosed illness can constitute a disability
under § 1117, but asserts that any error in the Veterans
Court’s decision was harmless. Appellee’s Br. 20; Oral
4 JOYNER v. MCDONALD

Argument at 12:33–58, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
13-7126.mp3. We disagree. The Veterans Court’s pronouncement that pain “does not constitute a disability” pervades its analysis. Joyner, 2013 WL 2157239, at *4.
The government also argues that § 1117 imposes a burden on a veteran to demonstrate that a medical professional has eliminated all possible diagnoses before the veteran can be compensated for a disability stemming from an undiagnosed illness pursuant to § 1117(a)(2)(A). Oral Argument at 20:16–59, 24:11–25:19. We are cognizant of the fact that a “qualifying chronic disability” is one
that “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” 38 C.F.R. § 3.317(a)(1)(ii). However, this does not, as the government contends, compel the conclusion that a veteran must be subjected to all possible medical testing
available and then “diagnosed” with an “undiagnosed illness” after all possible medical conditions have been ruled out.

In promulgating the final rule, § 3.317, the VA explained:
The regulation does not require that physicians
make such a diagnosis. Physicians should simply
record all noted signs and reported symptoms,
document all clinical findings, and provide a diagnosis
where possible. If the signs and symptoms
are not characteristic of a known clinical diagnosis,
the physician should so indicate. This conforms
with the usual standards of medical
practice.
Compensation for Certain Undiagnosed Illnesses, 60 Fed.
Reg. 6661, 6662 (Feb. 3, 1995). The statute and regulation
require only that the veteran has been evaluated and
no diagnosis could be made concerning the cause of the
qualifying chronic disability. Section 1117 affords compensation
for a “Persian Gulf veteran who exhibits objecJOYNER
v. MCDONALD 5
tive indications of a qualifying chronic disability.” 38
C.F.R. § 3.317(a)(1). Objective indications include both
objective evidence perceptible to an examining physician
and “other, non-medical indicators that are capable of
independent verification.” Id. § 3.317(a)(3). Non-medical
indicators include evidence such as time lost from work,
the veteran having sought treatment for his symptoms,
and changes in the veteran’s appearance, physical abilities,
and mental or emotional attitude. Compensation for
Certain Undiagnosed Illnesses, 60 Fed. Reg. at 6663. We
remand to the Veterans Court to analyze whether Mr.
Joyner has an undiagnosed illness and whether he satisfies
the remaining elements under § 1117 to establish
entitlement to compensation.1
CONCLUSION
Because the Veterans Court erred in concluding that pain cannot evidence a disability under § 1117, we vacate and remand to the Veterans Court for further proceedings in accordance with this opinion.
VACATED AND REMANDED

1 We do not decide Mr. Joyner’s arguments concerning
38 U.S.C. § 1110 because Mr. Joyner did not appeal
that issue to the Veterans Court.

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