Filed: Jan. 15, 2021
Latest Update: Jan. 19, 2021
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4625
ROBERT J. BRIA, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued December 1, 2020 Decided January 15, 2021)
Ethan F. Maron and Ryan J. McClure, who was on the brief, both of Washington, D.C.,
for the appellant.
Timothy G. Joseph, with whom William A. Hudson, Jr., Principal Deputy General Counsel;
Mary Ann Flynn, Chief Counsel; and Anna Whited, Deputy Chief Counsel, were on the brief, all
of Washington, D.C., for the appellee.
Before PIETSCH, GREENBERG, and MEREDITH, Judges.
MEREDITH, Judge: The appellant, Robert J. Bria, through counsel appeals a March 13,
2019, Board of Veterans' Appeals (Board) decision that denied entitlement to a compensable initial
disability rating for hepatitis C and to a disability rating in excess of 10% for that condition from
May 20, 2016. Record (R.) at 4-14. The Board also denied entitlement to special monthly
compensation (SMC) based on the loss of use of a creative organ. R. at 11. This matter was
referred to a panel of the Court to consider the meaning of the phrase "loss of use" in 38 U.S.C.
§ 1114(k) with respect to creative organs. The facts of this case, however, do not require us to
determine in general what may qualify as loss of use. Instead, we hold that the circumstances
alleged by the appellant—the use of a condom to prevent the sexual transmission of hepatitis C,
resulting in effective infertility—are not the type contemplated by the statute. We therefore affirm
the Board's decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1972 to August 1974.
R. at 73. He was diagnosed with hepatitis C in June 2004. R. at 1666. A VA regional office (RO)
denied his claim for benefits for that condition in February 2005, and he perfected an appeal to the
Board. R. at 1856-60, 1901, 1906-07, 1916-17. After several years of activity on the claim,
including a Board denial in October 2010, R. at 1581-90, and a Court remand in May 2012, R. at
1492-99, the Board granted the claim in July 2013, R. at 1449-63.
In October 2013, the appellant underwent a VA liver examination to determine the severity
of his hepatitis C. R. at 1427-31. The examiner stated that the appellant's "major symptomatic
condition" was late stage chronic obstructive pulmonary disease (COPD) and that he was not
receiving treatment for hepatitis C. R. at 1427. The appellant denied experiencing "any
incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia,
arthralgia, and right upper quadrant pain) due to" hepatitis C in the prior 12 months. R. at 1428.
Under the heading "Remarks," the examiner wrote: "Active [h]epatitis C without signs of cirrhosis
or liver dysfunction." R. at 1430.
The RO implemented the Board's grant of benefits in November 2013, assigning a
noncompensable rating for hepatitis C effective August 4, 2004. R. at 1423-26. The appellant,
through current counsel, filed a Notice of Disagreement with the assigned rating. R. at 1304-05.
VA medical records dated between March 2014 and December 2015 reflect complaints of
nausea and vomiting unrelated to his food intake, R. at 524 (Mar. 2014), 1250 (June 2014), 383-84
(Dec. 2015); declining endurance accompanied by increasing fatigue, R. at 1006 (Oct. 2014); and
weight loss, R. at 810 (July 2015), 384 (Dec. 2015). Of note, an October 2014 VA treatment
record reflects the appellant's report of increased bloating "that is causing numbness in the
epigastric region and pain along the flanks," but the examiner noted that he did "not complain of
diarrhea, vomiting, or anorexia." R. at 1028. The following month, the appellant reported to his
medical provider that he experienced intermittent bloating and abdominal pain, R. at 948, but the
examiner stated that the appellant's pain and bloating was more likely caused by his "recently
completed gastric emptying study," the results of which were abnormal, R. at 949. The examiner
further noted that the appellant "denie[d] any symptoms relevant to liver disease," including
jaundice, edema, ascites, hematemesis, melena, and hepatic encephalopathy. Id.
At a VA liver examination in May 2016, the examiner found signs of intermittent fatigue,
malaise, and anorexia, R. at 164, but the appellant denied experiencing any incapacitating episodes
in the prior 12 months, R. at 165. In October 2016, VA increased the appellant's disability rating
to 10%, effective May 20, 2016, the date of the most recent VA examination. R. at 158-62.
2
Through current counsel, the appellant appealed to the Board. R. at 94-101. In his Substantive
Appeal, the appellant argued that the symptoms noted in the May 2016 examination report, which
VA determined warranted a higher disability rating, "could not have manifested on the day of [the]
examination," and therefore "a compensable evaluation is warranted throughout the period on
appeal." R. at 95. He also cited October 2014 and December 2015 VA treatment records to
demonstrate that his condition had worsened before May 2016. R. at 95-96. Finally, the appellant
requested SMC for loss of use of a creative organ, arguing 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." R. at 96. In an attached affidavit, the appellant stated that he used a condom to
prevent the transmission of hepatitis C and that he had "refrained from unprotected sexual
intercourse since June 2013." R. at 98. The appellant's partner also submitted an affidavit stating
that they use a condom when engaged in sexual intercourse. R. at 99.
In the March 2019 decision on appeal, the Board denied entitlement to a compensable
disability rating for hepatitis C prior to May 20, 2016; to a rating in excess of 10% thereafter; and
to SMC based on the loss of use of a creative organ. R. at 4-14. This appeal followed.
II. ANALYSIS
A. SMC
1. The Parties' Arguments and the Board's Decision
The appellant first contends that the Board misapplied the law regarding SMC based on
the loss of use of a creative organ. Appellant's Brief (Br.) at 5. Specifically, he asserts that the
Board erroneously required that his loss of fertility be directly caused by his hepatitis C and did
not allow for the possibility of "an additional link in the causal chain, i.e., condom use." Id. The
Board's decision, he argues, violates Payne v. Wilkie,
31 Vet. App. 373 (2019).
Id. at 7-10.
He
also argues that 38 U.S.C. § 1114(k) permits the award of SMC for any impairment of sexual
function that is the result of a service-connected disability.
Id. at 10-14.
The Secretary counters that the appellant "fails to point [to] any evidence of record that he
is infertile, that he has lost a testicle, or that he cannot achieve an erection," and therefore he has
failed to carry his burden of demonstrating that the Board misapplied the law. Secretary's Br. at
5. The Secretary urges the Court to adopt for the purposes of section 1114(k) the definition of
"loss of use" that the Court established in Jensen v. Shulkin for the purposes of 38 U.S.C.
3
§ 2101(a)(2)(B)(i), regarding the loss of use of both lower extremities: "a deprivation of the ability
to avail oneself of the anatomical region in question." 29 Vet. App. 66, 78 (2017); Secretary's Br.
at 8-9. Under that definition, the Secretary argues, the Board properly denied entitlement to SMC
because the appellant's hepatitis C "has not deprived him of the ability to have procreative sex,"
Secretary's Br. at 9; rather, the appellant can simply "remove the condom and have procreative
sex, thereby removing any potential impairment to his fertility,"
id.
With respect to the appellant's request for SMC, the Board stated:
SMC is available for loss of use of a creative organ. In most circumstances, [it] is
applied to situations like erectile dysfunction, loss of one or both testicles, or loss
of one or both ovaries. The [appellant] does not argue, and there is no evidence,
that he suffers from erectile dysfunction as a result of his service-connected
hepatitis C, that he is unable to achieve an erection, or that he has been rendered
infertile as a result of his service-connected disability. While the Board
acknowledges the contention that the [appellant] must use a condom during
intercourse, there is no evidence or argument that, if he did not, [] he would be
unable to conceive a child as a result of his service-connected hepatitis C. Absent
such a showing, the use of a condom alone does not rise to the level of loss or loss
of use of a creative organ. SMC is therefore not warranted.
R. at 11 (citation omitted).
2. Statutory Interpretation of Section 1114(k)
Congress has provided that SMC is payable to a veteran who, as the result of a service-
connected disability, has suffered the "loss of use" of a "creative organ[]." 38 U.S.C. § 1114(k).
In our recent decision in Payne, the Court held that, "[b]ecause Congress did not explicitly include
. . . limitations [on qualifying service-connected disabilities] when drafting section 1114(k), the
Court presumes that it did not intend to limit potential entitlement to SMC(k) only to veterans with
specific service-connected disabilities." 31 Vet. App. at 384. 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 multi-
link causal chain between the service-connected disability and the anatomical loss or loss of use
of one or more creative organs."
Id. at 385.
Therefore, the causal chain on which the appellant's
claim is based (i.e., his service-connected hepatitis C causes him to use a condom which results in
effective infertility) may not be foreclosed if it results in loss of use of a creative organ.1 That, in
1
Given the Court's holding that the appellant has not demonstrated error in the Board's conclusion that he
has not suffered the loss of use of a creative organ, we need not decide whether use of a condom may serve as an
intermediate step in the causal chain between a service-connected disability and such a loss of use.
4
these circumstances, turns on whether section 1114 requires a disability of the creative organ to
establish loss of use, a question the Court has not had occasion to consider.2 Accordingly, we
begin, as always, with the statutory language. McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir.
2008); see Williams v. Taylor,
529 U.S. 420, 431 (2000).
"The statute's plain meaning is derived from its text and its structure." McGee, 511 F.3d
at 1356; see Gardner v. Derwinski,
1 Vet. App. 584, 586 (1991) ("Determining a statute's plain
meaning requires examining the specific language at issue and the overall structure of the
statute."), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd,
513 U.S. 115
(1994). The "plain meaning must be given effect unless a 'literal application of [the] statute will
produce a result demonstrably at odds with the intention of its drafters.'"
Gardner, 1 Vet. App. at
586-87 (quoting Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 571 (1982)); see Roper v.
Nicholson,
20 Vet. App. 173, 180 (2006), aff'd,
240 F. App'x 422 (Fed. Cir. 2007). In assessing
the language of a statute, courts review the overall statutory scheme "'so that effect is given to all
its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that
one section will not destroy another unless the provision is the result of obvious mistake or error.'"
Roper, 20 Vet. App. at 178 (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTES AND
STATUTORY CONSTRUCTION § 46:06 (6th ed. 2000)).
The first question in statutory interpretation is always "whether Congress has directly
spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). "If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."
Id. at 842-43.
The interpretation of a statute is a question of law that the Court reviews de novo,
without deference to the Board's interpretation. See Butts v. Brown,
5 Vet. App. 532, 539 (1993)
(en banc).
2
In Jensen, the Court considered the meaning of the phrase "loss[] or loss of use" as it appears in 38 U.S.C.
§ 2101(a)(2)(B)(i) and 38 C.F.R. § 3.809(b)(1) (pertaining to specially adapted housing), 29 Vet. App. at 68, for
disabilities "due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair," 38 U.S.C. § 2101(a)(2)(B)(i). The Court held that "loss of use" means "a
deprivation of the ability to avail oneself of the anatomical region in question," there, the lower extremity.
Jensen,
29 Vet. App. at 78. Because the Court in Jensen considered the meaning of "loss of use" in a different context, its
definition is informative but not controlling, particularly in light of our colleagues' statement in that case that "loss of
use" is "a general term, one that can readily accept additional specificity in various circumstances," explaining that
"[a]djacent modifiers and, in the case of SMC, regulatory efforts[,] create that specificity."
Id.
5
For several reasons, we conclude that the "text and . . . structure" of section 1114(k),
McGee, 511 F.3d at 1356, make clear that the ability of the creative organ to function must be
diminished in order to constitute a "loss of use of . . . [a] creative organ[]."3 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.
First, section 1114 is part of chapter 11 of title 38, U.S. Code, which is titled
"Compensation for Service-Connected Disability or Death." Subchapter II begins with section
1110, which provides that, "[f]or disability," compensation will be paid "as provided in this
subchapter" when certain conditions are satisfied. 38 U.S.C. § 1110. Section 1114 of that
subchapter in turn provides that, "[f]or the purposes of section 1110"—i.e., for the purposes of
paying compensation for disability—the listed rates will apply. Subsection (k) then sets forth the
rate of compensation where a veteran, "as the result of service-connected disability, has suffered
the anatomical loss or loss of use of one or more creative organs." 38 U.S.C. § 1114(k) (emphasis
added). Notably, that subsection later provides that, "in the event the veteran has suffered one or
more of the disabilities heretofore specified in this subsection," a higher rate of SMC is warranted.
Id. (emphasis added). In that regard, although subsection (k) references generically a "service-
connected disability" as the beginning of the causal chain, no specific service-connected conditions
are thereafter listed. See
Payne, 31 Vet. App. at 384 (noting that subsection 1114(k) "does not
specify the types of service-connected disabilities" that may result in compensation under that
subsection). Accordingly, the phrase "disabilities heretofore specified" must refer to the specific
conditions enumerated in subsection (k), which includes "loss of use of . . . [a] creative organ[]."4
The placement of section 1114 and the wording of subsection (k) thus clearly indicate that SMC(k)
3
Nothing in our opinion suggests that the cause of the diminishment must be physical rather than
psychological.
4
The Court notes that, in April 2000, VA's Office of General Counsel (OGC) considered whether VA could,
via rulemaking, compensate service-connected mastectomies under section 1114(k). VA Gen. Couns. Prec. 2-00
(Apr. 3, 2000). The OGC concluded that "VA may not by rulemaking designate additional injuries or conditions for
which it will pay k-rate SMC, beyond those specified in section 1114(k), even if it finds that the loss involved is
comparable to the losses involved in the conditions for which Congress has authorized k-rate SMC." Id. at 2
(emphases
added).
6
compensates for disabilities of some kind and, as relevant here, that it must be a disability "of . . .
[a] creative organ[]." 38 U.S.C. § 1114(k).
A "disability" for the purposes of chapter 11 requires "functional impairment," which
impacts the "'ability of the body as a whole, or of the psyche, or of a system or organ of the body
to function under the ordinary conditions of daily life.'" Saunders v. Wilkie, 886 F.3d 1356, 1363
(Fed. Cir. 2018) (quoting 38 C.F.R. § 4.10 (2017)); see 38 U.S.C. § 1110. At a minimum, then,
the plain language of section 1114(k) conveys that the ability of the creative organ to function
must be diminished in order to warrant compensation. See Wait v. Wilkie,
33 Vet. App. 8, 15
(2020). This conclusion is further buttressed by the other circumstances Congress specifically
listed in section 1114 as warranting SMC, which are conditions affecting specific parts of a
veteran's body or of his or her psyche. See 38 U.S.C. § 1114(k) (including—in addition to the
anatomical loss or loss of use of a creative organ—the anatomical loss or loss of use of one foot,
one hand, both buttocks; blindness in one eye; "complete organic aphonia with constant inability
to communicate by speech"; deafness of both ears; the anatomical loss of 25% or more of tissue
from a single breast or both breasts in combination due to mastectomy; and treatment of breast
tissue with radiation5), (l) (providing SMC for anatomical loss or loss of use of both feet or one
hand and one foot, as well as blindness in both eyes), (m) (providing SMC for the anatomical loss
or loss of use of both hands, or of both legs with factors preventing natural knee action with
prostheses in place; of one arm and one leg with factors preventing natural elbow and knee action
with prostheses in place; and blindness in both eyes with only light perception), (n) (providing
SMC for the anatomical loss or loss of use of both arms with factors preventing natural elbow
5
The Court notes that, when Congress ultimately proposed adding mastectomies to the list of disabilities
compensated under section 1114(k), VA's Under Secretary for Benefits offered the following:
Special monthly compensation is currently authorized for certain anatomical losses or losses of use
for which the rating schedule, which is based solely on impairment of earning capacity, is considered
inadequate for compensation purposes. The statute recognizes that the loss of a hand or foot, for
example, or loss of a creative organ, involves loss of bodily integrity which may negatively affect
self-image and precipitate considerable emotional distress.
The service-connected radical or modified-radical mastectomies covered by [the proposed
legislation] involve loss of bodily integrity and associated emotional trauma to a degree that is at
least comparable to the removal of a single testicle, for example, for which special monthly
compensation is currently payable regardless of its effect on a veteran's procreative ability and
regardless of whether the veteran is still of procreative age. As a matter of simple equity, these
mastectomies warrant equal compensation for the veterans who undergo them.
S. REP. NO. 106-397, at 55 (2000) (emphases added).
7
action with prostheses in place; the anatomical loss of both legs with factors that prevent the use
of prosthetic appliances; the anatomical loss of one arm and one leg with factors that prevent the
use of prosthetic appliances; the anatomical loss of both eyes; and blindness without light
perception in both eyes).
Additionally, the structure of section 1114 indicates that more severe disabilities are
compensated at a higher level of SMC. See 38 U.S.C. § 1114(k)-(n); Breniser v. Shinseki,
25 Vet. App. 64, 68-69 (2011). Tellingly, under subsection (k), loss of use of a creative organ is
compensated at the same level as anatomical loss of a creative organ. This suggests not only that
Congress contemplated that the loss of use of a creative organ that warrants SMC(k) would be
comparable in severity to the anatomical loss of a creative organ, 6 but also that the focus of
subsection (k) is on the level of function, or absence of function, of the creative organ.
In sum, we find that the text and structure of section 1114(k) require that, to establish a
"loss of use of . . . [a] creative organ[]," there must be diminished function of the creative organ.
38 U.S.C. § 1114(k). To the extent that, as discussed below, this resolves the current dispute, "that
is the end of the matter." Chevron, 467 U.S. at 842.
3. Application
As noted above, the appellant contends that compensation under section 1114(k) is
warranted because "service-connected [h]epatitis C causes him to refrain from sex without
7
condoms, and condom use precludes procreative intercourse." Appellant's Br. at 10.
Alternatively, he avers that, even if condom use does not constitute a loss of fertility, he would
nevertheless be entitled to SMC(k) because reliance on condoms due to hepatitis C is itself "an
6
In that regard, the Court notes that the VA Adjudication Procedures Manual directs an adjudicator as
follows: "When a VA examiner finds that there is [erectile dysfunction] or other sexual dysfunction, SMC(k) is
established even though . . . the [v]eteran had a vasectomy prior to the development of the [loss of use] of a creative
organ, as vasectomies may be reversible while [loss of use] is not." VA ADJUDICATION PROCEDURES MANUAL, M21-1
(M21-1), pt. III, subpt. iv, ch. 4, § I.3.b (emphasis added).
7
The Court will not address the appellant's arguments first raised in his reply brief, see Reply Br. at 1-5, and
reiterated at oral argument, see Oral Argument at 8:27-9:01, 12:32-13:15, 15:20-:30, 17:07-:39,
http://www.uscourts.cavc.gov/oral_arguments_audio.php, that his creative organ is impaired because it is capable of
transmitting disease. See Carbino v. Gober, 10 Vet. App. 507, 511 (1997) (declining to review argument first raised
in appellant's reply brief), aff'd sub nom. Carbino v. West,
168 F.3d 32, 34 (Fed. Cir. 1999) ("[I]mproper or late
presentation of an issue or argument . . . ordinarily should not be considered."); see also Untalan v. Nicholson,
20 Vet. App. 467, 471 (2006); Fugere v. Derwinski,
1 Vet. App. 103, 105 (1990). The Court notes, however, that
although he was represented by current counsel below, the appellant does not contend or point to evidence reflecting
that he raised this theory of entitlement before the Agency, nor does he contend that it was reasonably raised by the
record. See R. at 96 (June 2017 Substantive Appeal, filed through current counsel, contending that "[c]ondom use
effectively precludes procreative sex").
8
impairment of normal sexual function." Id. at 11.
The Secretary, on the other hand, maintains that
SMC(k) is not warranted here because the appellant does not suffer from a "medical impairment,
injury, or disease to [his] creative organ." Secretary's Br. at 9; see
id. at 5 ("[T]here is no evidence
that there is anything wrong with [the a]ppellant's creative organs."). Specifically, he contends
that the appellant "is capable of having [] sex without a condom and procreating," id. at 8; his
"hepatitis C has not deprived him of the ability to have procreative sex,"
id. at 9; and, "[c]onsistent
with the Board's finding, [he] can remove the condom and have procreative sex, thereby removing
any potential impairment to his fertility,"
id. (citing R. at 11).
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. See, e.g., Reply Br.
at 4 ("[The appellant] retains the physical capacity for unprotected intercourse, but chooses to
refrain from unprotected intercourse."). 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." R. at 11. Nor did he in his principal brief argue
or point to evidence reflecting that hepatitis C results in any other type of diminishment in the
ability of his creative organs to function or that his condition results in any mental impairment, for
example, loss of libido.8 See R. at 11. Because the plain language of section 1114(k) makes clear
that SMC(k) is not warranted in the absence of any impairment of his creative organ, the Court
cannot conclude that the appellant has demonstrated that the Board erred in finding that "use of a
condom alone does not rise to the level of loss or loss of use of a creative organ." R. at 11.
Accordingly, the Court need not address the appellant's remaining arguments regarding his
entitlement to SMC(k).
8
We note that the M21-1 reflects that SMC(k) is available for the diagnosed conditions of impotence and
loss of libido, among other conditions. See M21-1, pt. III, subpt. iv, ch. 4, § I.3.b.
9
B. Disability Ratings
The appellant argues that the Board provided inadequate reasons or bases for denying
entitlement to a compensable disability rating for hepatitis C prior to May 20, 2016, and to a rating
in excess of 10% thereafter because the Board did not fully address the arguments he raised below
and relied on the May 2016 VA examination, which he avers is inadequate, to deny higher
disability ratings. Appellant's Br. at 16-20. The Secretary disputes these arguments and urges the
Court to affirm the Board's decision. Secretary's Br. at 12-19. Notably, the Secretary asks the
Court to decline to consider the appellant's argument regarding the adequacy of the May 2016 VA
medical examination because the appellant did not raise that challenge below, despite being
represented by current counsel. Id. at 16-17.
The Board is tasked with determining the proper disability rating in the first instance. See
Hensley v. West,
212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not
appropriate fora for initial fact finding"); see also 38 U.S.C. § 7261(c) ("In no event shall findings
of fact made by the Secretary or the [Board] be subject to trial de novo by the Court."). The Board's
determination of the proper disability rating is a finding of fact that the Court reviews under the
"clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet. App.
76, 81 (1998). A finding of fact is clearly erroneous when the Court, after reviewing the entire
evidence, "is left with the definite and firm conviction that a mistake has been committed." United
States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet. App. 49, 52
(1990). As with any material issue of fact or law, the Board must provide a statement of the
reasons or bases for its determination "adequate to enable a claimant to understand the precise
basis for the Board's decision, as well as to facilitate review in this Court." Allday v. Brown,
7 Vet. App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1);
Gilbert, 1 Vet. App. at 56-57.
1. Adequacy of the May 2016 VA Medical Examination
To begin, the Court will not address the appellant's argument, raised for the first time to
the Court, that "the May 2016 VA examination report is insufficient for the Board to reach a fully
informed evaluation" and should have been returned. Appellant's Br. at 19. There is a
longstanding recognition of "the importance of issue exhaustion with respect to administrative
tribunals" because "'orderly procedure and good administration require that objections to the
proceedings of an administrative agency be made while [the agency] has opportunity for correction
in order to raise issues reviewable by the courts.'" Scott v. McDonald, 789 F.3d 1375, 1377 (Fed.
10
Cir. 2015) (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). Within
the context of the VA system, the Court must apply a balancing test to determine whether the
doctrine of issue preclusion should be invoked: "'The test is whether the interests of the individual
weigh heavily against the institutional interests the doctrine exists to serve.'"
Id. at 1378
(quoting
Maggitt v. West,
202 F.3d 1370, 1377 (Fed. Cir. 2000)). However, the Court is not required "to
. . . address procedural arguments when the [appellant] fails to raise them before the Board."
Id.
at 1381.
The appellant has been represented by current counsel since at least August 2014. See R. at
1304-05. In his Substantive Appeal, the appellant through counsel offered arguments related to
the proper disability ratings for his condition and to SMC, but he did not challenge the adequacy
of the May 2016 VA medical examination. See R. at 95-96. Because the appellant failed to raise
this issue below, thus depriving the Agency of the opportunity for correction and failing to raise
an issue reviewable by this Court, see
Scott, 789 F.3d at 1377, the Court, applying the balancing
test of Maggitt, will not exercise its discretion to review the issue raised for the first time here. See
Dickens v. McDonald,
814 F.3d 1359, 1361-62 (Fed. Cir. 2016) (affirming the Court's invocation
of the doctrine of issue exhaustion where the appellant failed to raise a procedural argument to the
Board).
2. Reasons or Bases
The appellant's hepatitis C is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7354.
Under that diagnostic code, a noncompensable rating is warranted where the condition is
nonsymptomatic, while a 10% rating is warranted where it results in "[i]ntermittent fatigue,
malaise, and anorexia[;] or[] incapacitating episodes (with symptoms such as fatigue, malaise,
nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at
least one week, but less than two weeks, during the past 12-month period." 38 C.F.R. § 4.114,
Diagnostic Code 7354 (2020). A 20% rating requires "[d]aily fatigue, malaise, and anorexia
(without weight loss or hepatomegaly), requiring dietary restriction or continuous medication[;]
or[] incapacitating episodes . . . having a total duration of at least two weeks, but less than four
weeks, during the past 12-month period." Id. To warrant a 40% rating, the claimant's hepatitis C
must result in "[d]aily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly[;]
or[] incapacitating episodes . . . having a total duration of at least four weeks, but less than six
weeks, during the past 12-month period."
Id. A 60% rating is warranted where the condition
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results in "[d]aily fatigue, malaise, and anorexia, with substantial weight loss (or other indication
of malnutrition), and hepatomegaly[;] or[] incapacitating episodes . . . having a total duration of at
least six weeks during the past 12-month period, but not occurring constantly." Id. Finally, a
100% rating is warranted where the condition results in "[n]ear-constant debilitating symptoms
(such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)."
Id. An "incapacitating episode" is "a period of acute signs and symptoms severe enough to require
bed rest and treatment by a physician."
Id. at Note 2.
The appellant contends that the Board failed to fully address an argument that he raised in
his Substantive Appeal, namely, that "the May 2016 VA examination report is itself evidence that
the symptoms of fatigue, malaise, and anorexia [on which his 10% rating is based] pre-dated
May 20, 2016." Appellant's Br. at 17; see R. at 95. The appellant argues that the examiner's
conclusion is necessarily based on his review of records showing symptoms that warrant a 10%
rating earlier than the date of the examination. Appellant's Br. at 17.
In the decision on appeal, the Board acknowledged the appellant's argument and
specifically reviewed the October 2014 and December 2015 treatment records that the appellant
identified in his Substantive Appeal. R. at 8. The Board found, however, that "[t]he evidence of
record . . . simply does not support a finding that the [appellant's] increase in disability was
factually ascertainable prior to the assigned effective date of the stage of May 20, 2016." Id. The
Board explained that the appellant's VA treatment records "primarily show treatment for
symptomatology due to [his COPD], gastroesophageal reflux disease (GERD)[,] and swallowing
disorder," and did not show "that he exhibited the symptomatology necessary for an increased
rating" for hepatitis C.
Id. In that regard, the Board summarized numerous treatment records and
concluded that none of them indicated that the examiners attributed his reported symptoms to
hepatitis C. R. at 8-9. The Board therefore found no evidence to support increasing the appellant's
disability rating for either period on appeal. R. at 9-10.
The Court concludes that the appellant has not carried his burden of demonstrating
prejudicial error in this regard. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due
account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding
that the harmless-error analysis applies to the Court's review of Board decisions and that the burden
is on the appellant to show that he or she suffered prejudice as a result of VA error). His argument
consists of summaries of the May 2016 examination report, the argument in his Substantive
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Appeal, and the Board's decision, Appellant's Br. at 16-17; a statement that the Board should have
addressed "why the VA examiner's report is not itself evidence that the symptoms pre-date May 20,
2016," id. at 17; and an assertion that he was prejudiced by the Board's error because his ability to
understand the Board's decision is hindered
, id. 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.
The appellant next argues that the Board's determination that the symptoms he reported
throughout the appeal period were related to his COPD or GERD is an impermissible medical
conclusion. Appellant's Br. at 18-20; see Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (finding
that the Board is prohibited from "provid[ing] [its] own medical judgment in the guise of a Board
opinion"), overruled on other grounds by Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998). Contrary
to the appellant's argument, however, the Board did not reach a medical conclusion. Instead, the
Board reviewed the medical treatment records and summarized their contents, including whether
the medical provider attributed the appellant's reported symptoms to hepatitis C. See R. at 8-9.
The Board then weighed that evidence against the appellant's assertions that his symptoms were
more severe throughout the appeal period than reflected in the assigned disability ratings. R. at
10. It is the Board's responsibility to weigh the evidence in the first instance, and the Court may
only overturn the Board's conclusion in that regard if the appellant demonstrates that it was clearly
erroneous. See Washington v. Nicholson,
19 Vet. App. 362, 369 (2005); Owens v. Brown,
7 Vet. App. 429, 433 (1995). The appellant has not carried that burden here.
The Court acknowledges the appellant's citation to a March 2014 VA internal medicine
note reflecting that his abdominal pain was "[l]ikely from cirrhosis and known hemangioma in
[the] liver." R. at 521; Appellant's Br. at 19. The Court also notes that the Board did not expressly
discuss this record. See R. at 7-10. The appellant, however, has not demonstrated that the Board's
failure to explicitly account for this evidence is prejudicial to him, again arguing only that the
Board's inadequate reasons or bases hinder his ability to understand the decision. Appellant's Br.
at 20; see 38 U.S.C. § 7261(b)(2); Sanders, 556 U.S. at 409.
The appellant raises no other challenges to the Board's decision regarding the proper
disability rating for hepatitis C for the periods on appeal. The Court will therefore affirm that
portion of the Board decision.
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III. CONCLUSION
After consideration of the parties' pleadings, a review of the record, and hearing oral
argument, the Board's March 13, 2019, decision is AFFIRMED.
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