Appeal from the United States Court of Appeals for Veterans Claims in No. 11-3700, Judge Lawrence B. Hagel.
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. 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 .
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. Vt.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 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).
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 ...