Bria: Loss of Use Due to a Condom and Harmless Error

Bria v. Wilkie, Case Number 19-4625, decided January 15, 2021 involves xxx.

The veteran was initially denied service connection for hepatitis C, but ultimately granted in July 2013.  In October 2013, the veteran underwent an examination to determine the severity of his condition which resulted in a noncompensable rating.

The veteran argued records showed symptoms and this resulted in an ultimate grant of 10% effective May 2016.  The veteran sought a higher rating and also argued for a SMC based on loss of use of a creative organ.  Both were denied by the Board.

Regarding loss of use of a creative organ, the veteran argued he became infertile due to condom use.  The condom use is to help stop the spread of hepatitis C.  The Court determined that “the ability of the creative organ to function must be diminished in order to constitute a "loss of use of . . . [a] creative organ[]."  38 U.S.C. § 1114(k).  Therefore, the Board did not err in finding that a personal choice to use a condom, even when done with the intention of preventing the spread of disease, does not alone result in loss of use of a creative organ.”  Id. at *6.   As to these facts, the Court stated: 

Although the appellant appears to contend that use of a condom constitutes a change in his sexual "function," the essence of his argument is that SMC(k) may compensate a veteran for a change in behavior purportedly resulting from a service-connected disability….  However, from the above discussion, it is clear that Congress intended SMC(k) to compensate for, generally, physical or mental impairment resulting from a service-connected disability and, specifically with respect to loss of use, for the diminishment of the functional ability of a creative organ that is comparably as severe as

anatomical loss. In that regard, the appellant does not challenge the Board's findings that "there is no evidence[] that he suffers from erectile dysfunction . . . . , that he is unable to achieve an erection, or that he has been rendered infertile."

Id. at *9.

Regarding the Hepatitis C rating, the veteran argued the Board failed to provide adequate reasons and bases for its decision and the inadequacy of an examination.

The Court rejected the adequacy of the examination argument because it was raised for the first time to the Court and not previously to the Board.  As to reasons and bases, the Court mostly rejected the arguments on a harmless error analysis. 

This case demonstrates that the harmless error arguments made by the VA have found a receptive audience in Judge Meredith.  In the opinion, the Court notes “Missing from his argument, however, is reference to any evidence showing that the symptoms he points to are attributable to hepatitis C or, assuming such evidence exists, an explanation of how those symptoms satisfy the requirements for a higher disability rating.”  It seems a high barrier the Court erects to require an appellate advocate to show symptoms commonly associated with a condition are in fact attributable to it and show exactly how they justify a higher rating.   As for the condom use equals loss of use argument, I give the advocate credit for a creative argument, but understand the Court's conclusion.

Decision by Judge Meredith and joined in by Judges Pietsch and Greenberg. 

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