In a January 2021 precedential opinion (Bria v. Wilkie), a panel of the Court of Appeals for Veterans Claims discussed the issue of whether a condom, used to prevent the spread of a transmissible disease, could constitute the loss of use of a reproductive organ for the purposes of Special Monthly Compensation (SMC-k). 38 U.S.C. §1114(k); 38 C.F.R. §3.350.
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Facts and Issue before the Veterans Court.
This case involves a veteran who served in the US Army from 1972 to 1974.
A noncompensable rating occurs when your service-connected disability results in a functional impairment of earning capacity, but does not reach a compensable level. You will be assigned a 0-percent rating. A noncompensable rating can open access to VA health care, higher priority groups, outpatient dental care under certain circumstances, a 10-point federal hiring preference, access to military commissaries, exchanges and morale, welfare and recreation (MWR) retail facilities, in-person and online, waiver of the funding fee for a VA home loan, and burial and plot allowance, and much more.
A couple years later, the veteran was awarded a compensable rating for his hepatitis-c and claimed entitlement to Special Monthly Compensation (SMC) for loss of use of a creative organ. 38 U.S.C. §1114(k); 38 C.F.R. §3.350. The veteran argued that his hepatitis c required him to wear a condom during intercourse to protect his partner and that “[c]ondom use effectively precludes procreative sex.”
The veteran argued that §1114k permits an award of SMC for any impairment of sexual function that is the result of a service-connected disability. The VA argued that the appellant did not point to any evidence of record that he was infertile, lost a testicle or cannot achieve an erection.
The VA took the argument a step further. He argued that the standard for “loss of use” for a reproductive organ under §1114(k) should be the same as the standard as “loss of use” of both extremities under 38 U.S.C. §2101(a)(2)(B)(i), where the measure is whether a veteran has suffered a “deprivation of the ability to avail oneself of the anatomical region in question.” See Jensen v. Shulkin, 29 Vet. App. 66 (2017).
The Veterans Court appointed a panel to consider the meaning of loss of use with respect to reproductive organs in 38 U.S.C. §1114(k).
What did the Court decide about the use of a condom and SMC-k?
This case builds on the Court’s decision in Payne v Wilkie, 31 Vet App 373 (2019).
In Payne, the Court found that Congress “did not intend to limit potential entitlement to SMC(k) only to veterans with specific service-connected disabilities.”
In Payne, the Court also held that “the plain text of section 1114(k) does not . . . preclude a theory of entitlement [to SMC(k)] based on a multilink causal chain between the service-connected disability and the anatomical loss or loss of use of one or more creative organs.”
What does that mean?
In this case, the veteran argued that having to wear a condom was a step in a multi-link chain that led to the loss of use of his creative organ.
The Court did not decide that question in Bria v. Wilkie.
Instead, the Court focused their analysis on a predicate for loss of use of a creative organ: the ability of the creative organ to function must be diminished in order to constitute a loss of use.
The Court described that it was a “personal choice to use a condom, even when done with the intention of preventing the spread of the disease,” and that did not alone result in loss of use of a creative organ.
The Court looked to the language of §1114(k), which denotes that the triggering event for SMC(k) for loss of use is a “disability”.
It relied on Saunders v, Wilkie to determine that a disability for the purpose of §1110 requires “functional impairment.” The Veterans Court concluded that there must be diminished use – or functional impairment – of the creative organ to function in order to warrant compensation.
The Court, in summary, treated “loss of use” of a reproductive organ for the purposes of SMC-k as requiring the equivalent of the anatomical loss of a creative organ, and that loss of use was focused on the level of function, or absence of function, of the creative organ.
The Court split a hair, and characterized the veteran’s need to wear a condom as a “change in behavior” and not a diminishment of sexual function of the creative organ.
I struggled with this decision in this case.
While I don’t necessarily disagree with the outcome of this appeal, I am rather uncomfortable with the reasoning. Four reasons jump out at me.
As an aside, I don’t profess to be “right” about this case – my criticisms below are not to suggest that the CAVC is wrong, or that the decision was poorly reasoned. My over-arching concern is that the decision leaves more questions open than the one it answered, and that it might have unintended consequences when applied to other fact patterns.
First, what troubles me is the Veterans Court’s reliance on the definition of disability in §1110 from Saunders. The Court is inconsistent on how they use this definition in Saunders. The Federal Circuit decision in Saunders is famous for its impact, that stand-alone pain can be a service-connected disability in a VA disability compensation claim. Saunders is less famous for the real value it added to jurisprudence in Title 38: the definition of what constitutes a disability for purposes of service-connection”
A disability, for the purpose of service-connection claims, are symptoms or conditions, regardless of the diagnosis or etiology of those symptoms or conditions, that cause a functional impairment of earning capacity.
Sometimes, the Veterans Court uses Saunders to reinforce the Court’s belief that it lacks jurisdiction to review BVA denials of obesity as a disability under §1110. And sometimes they use it to prevent a rating, as they did in this appeal. Once a precedent is issued, that precedent is not malleable in its application
Second, I’m just not sure that SMC-k was designed to compensate for functional impairment. That aspect of the disability will likely already have been accounted for in the schedular rating for the underlying condition. SMC in general, to my understanding, focuses not on disability or functional impairment, in my mind, but on loss or loss of use. I could be wrong about this, and will do some additional research to understand the function Congress intended Special Monthly Compensation to serve.
Third, the veteran’s argument in this case at least sounds facially plausible.
On one hand, having to block your penis from performing its reproductive function with a condom does seem like a loss of the use of the penis – or at the very least, a loss of use of the reproductive function of the testicle.
On the other hand, that loss of use is limited to a specific partner – the one who isn’t interested in contracting hepatitis-c.
This veteran, theoretically, might be totally able to “use” his penis for reproductive purposes with a partner who has Hep-C or with a partner who doesn’t care if they do or don’t get hepatitis-c. That argument rings hollow in a lot of ways, but I am troubled by reasoning in this decision that characterizes the need to prevent the spread of communicable diseases as a personal choice as opposed to a loss of use of a reproductive organ.
Fourth, the Court refused to entertain the question of whether there is a loss of use of a creative organ because it is a transmitter of disease, arguing that the veteran’s counsel did not raise it until the oral arguments and reply brief.
The decision seems to have dramatic and dangerous consequences for veterans who have service-connected HIV/AIDS, as well as other sexually transmissible diseases.
At the end of the day, I think the Court took a shortcut by painting the use of a condom as a “personal choice”, and punting the question of whether wearing of a condom to prevent the transmission of a communicable disease is or is not a loss of function of the penis/testicles or an impairment of the function of the penis/testicles – whose sole job as a reproductive organ is to deliver the sperm that results in conception/procreation.
Four Takeaways from the Veterans Court decision decision about SMC-k.
- #1: The issue of whether wearing a condom could constitute a loss of use for SMC-k is still an open question at the Veteran Court. I don’t know that we will ever see a decision finding that it is a loss of use across the Board, because the inquiry is fact driven.
- The CAVC pinned this decision to the veteran’s failure to establish as a matter of fact, before the BVA, that he had been rendered infertile. I wonder how evidence before the BVA might have changed this outcome. What if there were medical opinions explaining how the requirement of wearing a condom is not a personal choice but means of allowing the veteran to enjoy sex without procreating and transmitting a disease. I think a lot of times, cases that the Court sees can be shaped better at the VA or BVA, and all too often I think advocates wait until the case gets to the Court to make a novel argument, without the evidence to support it. So veterans, choose your attorneys on tricky cases not at the CAVC, but at the RO. It takes time, skill and foresight to prepare the file with the evidence needed to make successful arguments at Court, and many times, it is the time skill and foresight that leads to a favorable BVA decision that avoids the need to go to Court altogether. Takeaway – if you are making a novel argument that might require the Court to opine, get your lawyer at the supplemental claim stage. Let the attorney tee up the argument from the beginning.
- If you are an attorney representing a veteran, don’t “phone it in” before the BVA. Take some time to determine two things. First, what evidence might establish the legal point you are trying to make? Would an expert opinion have helped in this case? Second, preserve error by raising, explicitly, your arguments before the BVA. I predict that over time, the Court is going to use the “didn’t raise it below” rationale more and more. There are just too many appeals to the CAVC from the BVA lately that the Veterans Court is clearly actively looking for easy ways to thin its docket. (That’s speculation on my part – I don’t have any insider knowledge to that effect).
Let me know if you have questions about this case in the comments, below.