Orrick Pro Bono Team Secures Important Federal Circuit Win for Disabled Veterans


Siding with an Orrick pro bono team’s arguments on behalf of a Gulf War veteran, a federal appeals court today established vital precedent for veterans seeking benefits for disabilities arising from their military service when the disability consists solely of pain. In Saunders v. Wilkie, the Federal Circuit unanimously rejected certain limits on disability benefits imposed for nearly two decades by the Department of Veterans Affairs, providing critical support to veterans who can now recover just compensation for pain-related disabilities.

An Orrick team led by Mel Bostwick and Eric Shumsky, partners in the firm’s Supreme Court and Appellate Practice, along with co-counsel at the National Veterans Legal Services Program, secured the win for Gulf War veteran Melba Saunders.

The Federal Circuit specifically rejected a VA rule that denies benefits to veterans for pain associated with their military service unless a medical professional can point to some current diagnosable condition associated with the pain. This rule, the Orrick team argued, conflicts with federal guarantees of compensation benefits to veterans who become disabled as a direct result of their military service. The court sided with our arguments that “disability” refers to functional impairment, not to a particular disease or injury; that pain can impair a veteran’s ability to function and earn a living; and that compensation is available as long as the disabling pain can be traced to a veteran’s military service.

Calling the rule we advocated “common sense,” the court also rejected the VA’s argument that pain must be accompanied by some specific physical evidence, such as an anatomic abnormality or limited range of motion. “The policy underlying veterans compensation – to compensative veterans whose ability to earn a living is impaired as a result of their military service – supports the holding we reach today,” the court wrote.

The Federal Circuit remanded the matter to the Board of Veterans Appeals to apply the correct law and determine whether Ms. Saunders, who experiences disabling knee pain resulting from a condition incurred during her military service, is entitled to disability compensation.

“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,” said Mel, who argued the case. “We are pleased with the court’s straightforward application of the law that corrects a decades-long error by the Department of Veterans Affairs and sets important precedent in veterans benefits cases.”

The court’s decision is here. Coverage of the decision in Law360 can be found here, while coverage in The Am Law Litigation Daily can be found here.