[00:00:30] Speaker 03: Okay. [00:00:30] Speaker 03: The next case is number 171466 Saunders against the secretary of veterans affairs, Ms. [00:00:38] Speaker 03: Bostwick. [00:00:40] Speaker 00: Thank you, your honor. [00:00:41] Speaker 00: May it please the court. [00:00:43] Speaker 00: The secretary agrees with Ms. [00:00:45] Speaker 00: Saunders on the central legal question that decides this case, namely that disability in section 1110 refers to functional impairment and not to a specific diagnosed condition. [00:00:58] Speaker 00: and that pain in the absence of a presently diagnosed condition can cause functional impairment. [00:01:04] Speaker 00: You can see this most clearly, I think, at page 21 of the secretary's brief where he states, we generally agree that the term disability refers to a condition that impairs normal functioning and reduces earning capacity, and we recognize that pain can cause such impairment in certain situations. [00:01:23] Speaker 02: So what's the difference between the two of you? [00:01:26] Speaker 00: So the difference between the two of us, I don't think there's a relevant difference between the two of us. [00:01:31] Speaker 00: The legal principle that the Board and the Veterans Court use to resolve this case is one that we agree on and this court should reverse or at a minimum remand for application of the correct legal rule. [00:01:43] Speaker 00: The Secretary has two arguments for why this court should not reach that legal question. [00:01:50] Speaker 00: I am happy to address both of them. [00:01:52] Speaker 00: I think that it's particularly important for the court to address this legal question because it's one that's been sitting unresolved for about nearly 20 years since the Sanchez Benitez case and the board and the Veterans Court through that time have been consistently applying this legal rule that the secretary himself does not defend. [00:02:10] Speaker 00: So, of course, the Secretary has two arguments. [00:02:12] Speaker 00: He first argues that the Veterans Court resolved this case on something other than this flawed legal rule. [00:02:18] Speaker 00: There's no support for that argument in the record. [00:02:20] Speaker 00: You can look at the Veterans Court's decision at Appendix 2. [00:02:25] Speaker 00: The Veterans Court recites that the Board found that pain alone is not a disability for the purpose of VA disability compensation, that the Board applied the legal rule from Sanchez Benitez correctly, [00:02:36] Speaker 00: And then the rest of the Veterans Court's opinion is a discussion of the presidential status of Sanchez Benitez and a rejection of Ms. [00:02:44] Speaker 00: Saunders' argument about the flaws in the Sanchez Benitez principle. [00:02:49] Speaker 00: You can see from the cases that the Veterans Court cited that that's what it's doing. [00:02:54] Speaker 00: It relied on the Fountain case. [00:02:56] Speaker 00: I think the Kennedy case is particularly instructive. [00:02:59] Speaker 00: In Kennedy, the Veterans Court noted that there was functional loss due to the veteran's knee pain. [00:03:05] Speaker 00: but no current diagnosis and so denied service connection on that basis. [00:03:10] Speaker 00: There's another condition at issue in that case, IBS. [00:03:14] Speaker 00: And with respect to that condition, the Veterans Court remanded for consideration of the effects of that condition on the veteran's employment. [00:03:22] Speaker 00: The only difference was that that condition had a name and the new condition did not. [00:03:27] Speaker 00: So we think it's absolutely clear that the Veterans Court resolved this case solely on this flawed legal principle that the parties both agree is wrong. [00:03:35] Speaker 00: It's equally clear that the board resolved it on that basis. [00:03:39] Speaker 00: The board at appendix 22, again, recites the legal principle from Sanchez Benitez, 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. [00:03:55] Speaker 00: And that's simply wrong. [00:03:57] Speaker 02: But assuming that pain is a disability, as the government appears to agree can be the case. [00:04:03] Speaker 02: You both also agree that that has to be traceable to some injury or disease that manifested itself during service. [00:04:13] Speaker 02: And on the one hand, you seem to say that that issue has been resolved in your favor. [00:04:20] Speaker 02: The government seems to say that that issue has been resolved against you. [00:04:25] Speaker 02: My view of the record is that issue hasn't been addressed yet. [00:04:29] Speaker 00: So we think it has been addressed, but we certainly [00:04:34] Speaker 00: don't believe that it has been addressed in the secretary's favor. [00:04:38] Speaker 00: We have here the in-service diagnosis of patellofemoral syndrome, which is what meets the second prong, the incurrence or aggravation prong. [00:04:46] Speaker 00: We have the board at Appendix 22 reciting that finding by the examiner and not rejecting it. [00:04:52] Speaker 00: And at Appendix 19, the board recognizes that if it's going to reject a finding favorable to the veteran, it has to provide a reason for doing so. [00:04:59] Speaker 00: And it doesn't do that in the opinion. [00:05:01] Speaker 00: So we view that as the board accepting [00:05:03] Speaker 00: the finding as to in-service diagnosis. [00:05:06] Speaker 00: With respect to Nexus, we have the medical examiner stating that it is at least as likely as not that her current disabling pain is connected to that in-service diagnosis. [00:05:18] Speaker 00: And again, the board does not reject that finding. [00:05:20] Speaker 00: There's no discussion of that in the board's opinion. [00:05:23] Speaker 00: So we do believe it's clear that those two pieces are met. [00:05:26] Speaker 00: Likewise, the functional impairment that the examiner found, the board did not disrupt that. [00:05:31] Speaker 04: And then on appeal... But did the board really even need to address those questions when it was specifically finding that pain is not a disability? [00:05:40] Speaker 00: It may not have been. [00:05:41] Speaker 00: If this court believes that there's insufficient findings in the record to outright reverse, then the proper remedy would be a remand, a clarification of what the correct legal rule is, and then a remand to the Veterans Court, to remand to the board to apply that test. [00:05:59] Speaker 00: But we do think it is important for this court to correct the legal error, to make clear that disability under section 1110 means functional impairment. [00:06:09] Speaker 00: Functional impairment is defined in a way we agree with in the secretary's regulation at 4.10, and that a diagnosis is not required. [00:06:20] Speaker 02: Of a current disability. [00:06:22] Speaker 00: A current diagnosis, correct. [00:06:25] Speaker 02: I mean of a current underlying pathology. [00:06:28] Speaker 00: Correct. [00:06:29] Speaker 00: You don't need a current diagnosis of a disease or injury. [00:06:32] Speaker 00: You need the in-service disease or injury and then you need evidence of a current disability that is linked to that in-service diagnosis. [00:06:44] Speaker 00: The court has no further questions. [00:06:45] Speaker 00: I'll reserve my time for rebuttal. [00:06:46] Speaker 03: Okay. [00:06:48] Speaker 00: Good. [00:06:48] Speaker 00: Good idea. [00:06:54] Speaker 03: Mr. Perata. [00:06:56] Speaker 01: Good morning. [00:06:57] Speaker 01: May it please the court. [00:06:59] Speaker 02: How is the government pretty much confessing error here? [00:07:02] Speaker 01: No, Your Honor. [00:07:03] Speaker 01: In fact, I wanted to address that point right off the bat because opposing counsel was not correct. [00:07:09] Speaker 01: We have not conceded that the Veterans Court's principle from Sanchez Benitez that pain alone is not a disability is incorrect. [00:07:18] Speaker 01: What we conceded in our brief was the simple point that it is conceivable that there could be a veteran who has subjective pain [00:07:27] Speaker 01: and who has evidence that has been documented that the subjective pain actually is impairing the veteran so that there is an impairment and if that's the case and that is substantiated by the medical records as found by the board, that could establish a disability. [00:07:43] Speaker 02: I'm not understanding what the difference is between that position and the veteran's position in this case. [00:07:49] Speaker 02: That seems to be saying that if pain is impairing function, it can be a disability. [00:07:57] Speaker 01: yes sir as as miss saunders acknowledges in her own brief at footnote three if a veteran experiences pain without any functional impairment there would be no disability well that essentially is this case because the board never made any factual findings that the subjective pain reported by miss saunders actually was impairing her in an address the question well on the contrary writer that the fact finding by the board uh... was specific that [00:08:25] Speaker 01: in the finding the facts section that the knee disability, quote, did not have its clinical onset in service and is not otherwise related to active duty. [00:08:34] Speaker 02: Well, that's a different question. [00:08:36] Speaker 01: Well, and the board, excuse me. [00:08:39] Speaker 02: I mean, you say on page eight of your brief that there's a finding here that her pain does not limit the functionality of the knee. [00:08:48] Speaker 02: That is on the fifth line of page eight of your brief. [00:08:52] Speaker 02: And then you cite [00:08:54] Speaker 02: Appendix 8 and 22 to 23. [00:08:56] Speaker 02: I looked at those references. [00:08:58] Speaker 02: I do not see any such finding. [00:09:00] Speaker 02: Could you show me where it is? [00:09:02] Speaker 01: Your Honor, the fact finding by the Board on those pages that we were referring to, specifically on pages 21 to 22 onto 23, is that there was no pathology to warn the diagnosis that the x-ray studies revealed normal findings except for the subjective pain. [00:09:22] Speaker 01: and that there's no other evidence of record establishing a current diagnosis of knee disability. [00:09:27] Speaker 02: But that's not the same thing. [00:09:28] Speaker 02: We're talking about not whether there's a current pathology which is causing this. [00:09:33] Speaker 02: The question is, is the pain repairing functionality? [00:09:37] Speaker 02: And I don't see that the board made any finding about that. [00:09:41] Speaker 01: Your Honor, the board did. [00:09:43] Speaker 01: did also note that the that Miss Saunders was able to treat her symptoms with over-the-counter medication. [00:09:50] Speaker 02: So, where on these pages 22 and 23 does the board say that the pain doesn't impair functionality? [00:09:58] Speaker 01: Your Honor, it's correct nowhere on those pages does the board use that specific language but if you look at all of the factual findings that the board made those are based on the medical records in which there was no objective evidence noted [00:10:12] Speaker 01: of any impairment. [00:10:13] Speaker 01: It's not our job to review the facts. [00:10:15] Speaker 02: They've got to make factual findings. [00:10:17] Speaker 02: They haven't made one. [00:10:19] Speaker 01: Well, Your Honor, they have, by pointing to those facts, none of which support any impairment, there is no finding by the Board that she actually had any impairment. [00:10:30] Speaker 01: And that is the finding that... There's no finding one way or the other. [00:10:33] Speaker 02: That's why it would seem that we have to remand to them to make the proper findings. [00:10:39] Speaker 04: I mean, that's the whole point, isn't it? [00:10:40] Speaker 04: The Board said that [00:10:42] Speaker 04: that pain can't be a disability, so they didn't have to make any findings with respect to scope of impairment from pain. [00:10:52] Speaker 01: Yes, it's correct, Your Honor. [00:10:53] Speaker 01: Under the board's finding, as supported by the Veterans Court, Sanchez Benitez's decision, the long-standing, roughly 20 years of precedent from the Veterans Court interpreting Section 1110 is that subjective pain alone is not tied to some current disability. [00:11:11] Speaker 04: you now concede that pain can be functionally disabling. [00:11:18] Speaker 04: And so that that 20-year authority is probably wrong, right? [00:11:22] Speaker 01: No, Your Honor. [00:11:23] Speaker 01: We concede that there could be a case where the pain that is objectively documented through findings, even if there isn't a label attached to it as a diagnosis, if there's objective findings in the medical records that substantiate that the pain [00:11:40] Speaker 01: actually exists and is having an impairment, that could be a disability. [00:11:43] Speaker 02: How does that differ from what Judge O'Malley just asked you about? [00:11:46] Speaker 02: I'm not understanding that. [00:11:49] Speaker 01: Your Honor, it differs from the fact that in this case, you do not have any objective findings of any disability. [00:12:00] Speaker 02: We're talking about the legal principle. [00:12:03] Speaker 02: Do you agree that the legal principle on which the Board and the Veterans Court rested is wrong? [00:12:10] Speaker 01: No, Your Honor, we do not. [00:12:11] Speaker 01: We do not? [00:12:12] Speaker 01: No, Your Honor, because... You just told me you did. [00:12:15] Speaker 04: You just told me you did. [00:12:17] Speaker 04: If you say there are factual circumstances in which pain could be a disability, then that means the legal principle that says it never can be is wrong, right? [00:12:30] Speaker 01: Your Honor, what the Sanchez Benitez principle says is that pain alone [00:12:34] Speaker 01: is not a disability. [00:12:35] Speaker 01: Pain alone meaning there is no objective finding documenting the actual effect on the body. [00:12:44] Speaker 04: You could have all kinds of documented findings and they would still say under that legal theory that it's not a disability. [00:12:51] Speaker 04: Of course you have to have evidence of the pain. [00:12:55] Speaker 01: Yes, but it's important to understand the context of [00:13:00] Speaker 01: the disability prong of the compensation test under section 1110, which is what we've been talking about, the first prong, which requires not just evidence of an impairment, but as this court held in the Davis case cited in our brief, looking to common dictionary definitions for disability, an inability to pursue an occupation due to physical or mental impairment. [00:13:22] Speaker 01: So there has to be not just an impairment of your earnings capacity, but it has to be tied to some current [00:13:30] Speaker 01: condition, it isn't simply an impairment of earnings divorced from any actual diagnosis. [00:13:36] Speaker 01: And it's important to understand why that is and the fact that that is what Section 1110 requires. [00:13:41] Speaker 01: If the situation were otherwise, there would have been no reason for Congress to enact the accompanying Section 1117, which provides for disability compensation for a small subset of veterans, those who served in the Persian Gulf arena during the Persian Gulf War. [00:13:59] Speaker 01: And in an acting section. [00:14:00] Speaker 02: 1117 is dealing with a different question, which is the proof of causation. [00:14:06] Speaker 02: Disability is caused by injury or disease manifested in disservice. [00:14:11] Speaker 02: And there's a different rule in 117 for that aspect of the question. [00:14:16] Speaker 02: But that doesn't help you on this question of whether pain alone, when it is traced to a disease and injury, or injury that occurred in service, is a disability. [00:14:28] Speaker 01: Your Honor. [00:14:29] Speaker 01: When Congress enacted Section 1117, that statute specifically provides for compensation for veterans in the Persian Gulf who have undiagnosed disabilities or medically unexplained illnesses. [00:14:43] Speaker 01: And when Congress enacted that statute, it recognized in Sections 102 and 103 of the statute that enacted it, that that change was required to provide compensation for veterans experiencing [00:14:57] Speaker 01: quote, disabilities resulting from illnesses that cannot now be diagnosed or defined, because those disabilities were, quote, not considered to be service-connected under current law, which was Section 1110. [00:15:08] Speaker 04: That has to do with idiopathic issues. [00:15:10] Speaker 04: That's totally different circumstances. [00:15:13] Speaker 04: What we're talking about here is we have a situation in which there was an in-service diagnosis, and then we have an examiner who ties the current pain to that in-service diagnosis. [00:15:25] Speaker 01: Right? [00:15:27] Speaker 01: Your Honor, all that the medical examiner did was say that chronologically, yes, her current knee pain post-dates her service and that there was a report of the knee pain for a brief period of time in 1991 in service. [00:15:43] Speaker 04: Right, but the board never made a causation finding because it said, I don't care how much causation there is because pain can't be disabling. [00:15:55] Speaker 01: Well, actually, Your Honor, the Board did make a factual finding specifically stating in the findings the fact that there was no need disability with a clinical onset in service. [00:16:07] Speaker 01: And so the Board did, as a matter of fact, address that issue. [00:16:12] Speaker 01: And if I may just return to Section 1117, our position is that if Section 1110 by itself provided for compensation already for veterans who have [00:16:24] Speaker 01: an undiagnosed illness or an unexplainable condition such as pain alone, there would have been no need for Congress to enact Section 1117 because they would have already had coverage under 1110. [00:16:37] Speaker 04: But pain isn't unexplainable if in fact there is an in-service problem. [00:16:46] Speaker 01: Well, Your Honor, pain can be diagnosed and examined in a number of different ways. [00:16:52] Speaker 01: And the medical examiner's report in this case, from August 2011, specifically noted that Ms. [00:16:59] Speaker 01: Saunders' knees were tested repeatedly, not just once or twice, but three times. [00:17:05] Speaker 01: And that on those repeated testings of her knees, there was no observation of any pain that was displayed. [00:17:14] Speaker 01: Again, on the x-rays and all of the [00:17:16] Speaker 01: Pathological testing was all negative, but even through moving the knees about multiple times, there was no demonstrated pain. [00:17:25] Speaker 01: And so subjective pain could be quantified through that type of testing. [00:17:29] Speaker 01: It was not, in fact, in this case. [00:17:32] Speaker 01: And that's all that there is in the record. [00:17:34] Speaker 01: There's nothing in the record to support Ms. [00:17:37] Speaker 01: Saunders's position in the board's findings that, in fact, her subjective pain was causing any actual impairment. [00:17:45] Speaker 03: But you're saying that even though the wrong law was applied, she loses anyway, therefore don't correct the law. [00:17:52] Speaker 01: Well, no. [00:17:53] Speaker 01: Your honor, again, we think that the underlying principle of Sanchez Benitez is not incorrect. [00:18:02] Speaker 01: That if a veteran has reports of pain alone without evidence of impairment, and that isn't tied to some current condition as the definition of disability requires, that that is not a disability. [00:18:15] Speaker 01: But what we're saying is even if the court were to get to that legal issue, the board's fact finding here contains nothing that would allow Ms Saunders to establish that she actually had a disability because there's nothing in the board's fact finding that indicates that there was any actual impairment caused by the subjective pain. [00:18:37] Speaker 01: And so under this court's jurisdictional statutes, of course this court cannot [00:18:43] Speaker 01: step in and review those fact findings. [00:18:46] Speaker 01: And to the extent that Ms. [00:18:48] Speaker 01: Saunders maintains that the Board's fact finding is somehow incomplete or cherry-picking facts, the time to raise those arguments, of course, was before the Veterans Court itself, and she did not do so. [00:19:01] Speaker 01: And so the fact finding by the Board is what it is, and that is the record that is now before this Court, which contains nothing of any evidence of actual impairment caused by her subjective pain. [00:19:13] Speaker 04: In this case, there was a reference in the opinion that the board has applied to this principle that pain can never be disabling at least 83 times. [00:19:24] Speaker 04: I mean, shouldn't we address the legal principle and correct it if we think it's wrong? [00:19:31] Speaker 01: Well, Your Honor, yes, I think the Veterans Court found that 100 or so times the Veterans Court itself has subsequently applied the Sanchez Benitez principle in other cases, and no doubt there are many other [00:19:44] Speaker 01: decisions from the Board that never got to the Veterans Court where the same principle was applied. [00:19:49] Speaker 01: But this Court, if all that was presented in this case was a pure legal issue of whether a Veteran for whom the Board had actually made fact finding that there was impairment caused by the subjective pain, but the Board and then the Veterans Court nevertheless had held that because it was subjective pain alone that could never be a disability notwithstanding impairment, if that was the case it would potentially raise a purely legal issue that the Court could address. [00:20:15] Speaker 02: Our point here is that even though the Veterans Court decided a pure legal issue, we're supposed to look around for facts that might make that irrelevant. [00:20:23] Speaker 02: That's our job? [00:20:24] Speaker 01: No, Your Honor. [00:20:25] Speaker 01: The Veterans Court addressed the issue that was presented to it by Ms. [00:20:29] Speaker 01: Saunders in her briefing. [00:20:31] Speaker 01: And Ms. [00:20:31] Speaker 01: Saunders's briefing... And we're hypothesizing that they made a mistake in their decision. [00:20:36] Speaker 02: The articulated legal principle which they found dispositive was wrong. [00:20:40] Speaker 02: We're not supposed to reverse them? [00:20:42] Speaker 01: Well, Your Honor, as in Sanchez Benitez itself, which came before this court after the Veterans Court, in that case, as in this case, the Veterans Court and the board below had made underlying factual determinations, which this court cannot review. [00:20:58] Speaker 01: And so regardless of the resolution of the legal issue, the fact finding remains the same. [00:21:05] Speaker 02: And that was why this court... You've been unable to point us to any fact finding on the issues that you say moves the legal issue. [00:21:12] Speaker 01: Well, Your Honor, again, but the point here is that the fact finding by the board, there's nothing in the fact finding that would allow the Veterans Court or this court to conclude that there actually is any impairment. [00:21:24] Speaker 02: So the only way we can review the legal issue is if they've made the fact findings that would make the legal issue ultimately dispositive in the case? [00:21:32] Speaker 01: Your Honor, I believe if there were fact finding that could support [00:21:39] Speaker 01: the decision that Ms. [00:21:40] Speaker 01: Saunders meets the disability requirement. [00:21:41] Speaker 04: But there's no fact-finding that doesn't support the decision. [00:21:44] Speaker 04: There's just no fact-finding. [00:21:46] Speaker 01: Well, but again, Your Honor, all of the fact-finding by the Board is that the subjective reports of pain, that was all she was diagnosed with, was subjective pain, and nothing substantiated the actual impact of that on her. [00:21:58] Speaker 04: But that wasn't a fact-finding, that was the legal conclusion. [00:22:03] Speaker 01: I understand that that, Your Honor, that ties into the legal question of [00:22:08] Speaker 01: of pain alone, if you will. [00:22:11] Speaker 01: But my point is that all of the medical evidence from the medical examination that was relied upon by the board was to the effect that there was no impact on Ms. [00:22:24] Speaker 01: Saunders' ability to function beyond her self-reported complaints. [00:22:30] Speaker 01: I see that I'm over my time, Your Honor, so we ask that the Court affirm the Veterans Court's decision. [00:22:41] Speaker 00: I want to first talk about what Sanchez Benitez actually says because the government is not describing it correctly. [00:22:49] Speaker 00: I think the court appreciates that, but I think it is helpful to look at the language. [00:22:54] Speaker 00: Again, you can find this, for example, at Appendix 3 in the Veterans Court decision, Appendix 22 in the Board's decision. [00:23:01] Speaker 00: Both are a direct quote of Sanchez Benitez. [00:23:04] Speaker 00: What they say is that pain alone [00:23:07] Speaker 00: without a diagnosed or identifiable underlying disability does not in and of itself constitute a disability for which service connection may be granted. [00:23:16] Speaker 00: That doesn't talk about pain without functional impairment. [00:23:19] Speaker 00: That doesn't talk about anything that the government is describing. [00:23:22] Speaker 00: The rule that the Veterans Court has been applying in this case in more than 100 other cases by its own count is that [00:23:29] Speaker 00: current pain without a current diagnosed condition can never be a disability, and the government certainly is not defending that legal rule before this court. [00:23:39] Speaker 02: I'd also like to address... I don't know whether they are or not, frankly, after listening. [00:23:44] Speaker 00: It is a little unclear. [00:23:46] Speaker 00: Certainly the quote in the brief at page 21 and at page 26 is consistent with our view of the law which is that disability means functional impairment and that pain can be functionally impairing even without a current diagnosis. [00:24:00] Speaker 00: We certainly think that's the correct legal rule for all the reasons discussed in our brief and so we do agree that the time has come for this court to correct that legal rule. [00:24:09] Speaker 00: I'd also like to address some of the [00:24:11] Speaker 00: characterizations that the government made about the record in this case. [00:24:15] Speaker 00: In particular, to the extent there's any suggestion that Ms. [00:24:18] Speaker 00: Saunders waived any argument, that's not correct. [00:24:21] Speaker 00: The board did not make any adverse factual finding to Ms. [00:24:25] Speaker 00: Saunders. [00:24:26] Speaker 00: And so therefore, not only did we have no reason to appeal a factual finding to the Veterans Court, but we had no ability to do so. [00:24:34] Speaker 00: The Veterans Court can review only factual findings that are adverse to the claimant. [00:24:39] Speaker 00: There was no such finding here. [00:24:41] Speaker 00: The government has pointed to Appendix 17. [00:24:45] Speaker 00: That's not something that the government cited in its brief. [00:24:48] Speaker 00: It's titled, Findings of Fact, but it's effectively a boilerplate statement that just says that the test for service connection isn't met. [00:24:57] Speaker 00: To look at what the basis for the board's ruling was, you have to look in the reasons and bases portion of the decision, and that is at Appendix 22 to 23. [00:25:08] Speaker 00: The government notes that the board there recites the fact that the medical testing was normal, specifically range of motion testing and x-rays. [00:25:18] Speaker 00: And it's doing so in the context of discussing the fact that there was no present diagnosis. [00:25:24] Speaker 00: What the board never looked at was the evidence of functional impairment that the examiner found. [00:25:30] Speaker 00: And that's throughout the medical examiner's opinion. [00:25:32] Speaker 00: At appendix 519, the medical examiner finds that Ms. [00:25:36] Speaker 00: Saunders has pain. [00:25:37] Speaker 00: that she has pain with running, squatting, bending, and climbing. [00:25:41] Speaker 00: At Appendix 520, the examiner specifically recites functional limitations on her ability to stand and walk, namely that her knee pain prevents her from standing for more than a few minutes at a time, and it prevents her from walking more than a quarter of a mile at a time. [00:25:56] Speaker 00: The examiner also at Appendix 522 notes that it has significant effects on her usual occupation in the form of increased absenteeism, [00:26:04] Speaker 00: as well as adverse effects on her daily activities by preventing her from engaging in sports and exercise. [00:26:09] Speaker 00: That is all evidence of functional impairment. [00:26:12] Speaker 00: The board simply ignored that evidence. [00:26:14] Speaker 00: Again, the board, if it wanted to reject that evidence and find that that was not functional impairment and not a disability, it had to provide a reason for doing so. [00:26:22] Speaker 00: It didn't, and it didn't because it was applying this pure legal rule that pain in the absence of a diagnosis is not a disability. [00:26:30] Speaker 00: It never recognized that functional impairment [00:26:33] Speaker 00: is the correct test. [00:26:37] Speaker 00: Also, just as to the nexus finding, the same thing. [00:26:40] Speaker 00: The examiner found that the nexus requirement was met, found that it was at least as likely as not that Ms. [00:26:47] Speaker 00: Saunders' current disabling pain was linked to her service, patellofemoral diagnosis, and the board did not disturb that finding. [00:26:56] Speaker 00: If the court has no further questions, we'd ask them to reverse or normally man. [00:27:01] Speaker 00: Thank you. [00:27:02] Speaker 00: Thank you. [00:27:04] Speaker 00: Thank you.