directing that reviewing courts "must give effect to every word of a statute wherever possible"
How later courts described this case
- directing that reviewing courts "must give effect to every word of a statute wherever possible"
- "[T]he Board is not competent to render [medical assessments] in the first instance."
- "It is axiomatic that a regulation may not trump the plain language of a statute."
- holding that administrative regulations that are inconsistent with statute do not control, even when Congress has reenacted the statute amidst decades of contrary VA practice
Written by the judges who cited it.
The opinion
Case: 23-5171 Page: 1 of 23 Filed: 01/22/2026
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 23-5171
SHARON A. WESTPHAL, APPELLANT,
V.
DOUGLAS A. COLLINS,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued October 7, 2025 Decided January 22, 2026)
Brandon A. Steele, of Miami, Florida, for the appellant.
Erik A. Neff, with whom Richard J. Hipolit, Acting General Counsel; Mary Ann Flynn,
Chief Counsel; and Dustin P. Elias, Deputy Chief Counsel, all of Washington, D.C., were on the
brief for the appellee.
Before ALLEN, Chief Judge, and TOTH and JAQUITH, Judges.
ALLEN, Chief Judge, filed the opinion of the Court. JAQUITH, Judge, filed a dissenting
opinion.
ALLEN, Chief Judge: Nearly a century ago, Congress created the statutory benefit of
special monthly compensation (SMC).1 SMC is paid to certain veterans in addition to basic rates
of VA disability compensation and is predicated "upon consideration of noneconomic factors such
as personal inconvenience, social inadaptability, or the profound nature of the disability."2 Among
the several types of SMC that Congress established by statute is what we will refer to throughout
this opinion as "SMC(k)." SMC(k) provides compensation for the loss or loss of use of certain
anatomical parts, including the loss or loss of use of "one or more creative organs."3 "The purpose
of the statutory award for [SMC(k)] is to account for psychological factors . . . as well as the loss
of physical integrity."4
1
VA Gen. Coun. Prec. 05-89 (citing Pub. L. No. 522, 71st Cong., 46 Stat. 998 (1930)) (Mar. 3, 1989).
2
G.C. Prec. 05-89.
3
38 U.S.C. § 1114(k).
4
G.C. Prec. 05-89.
Case: 23-5171 Page: 2 of 23 Filed: 01/22/2026
Appellant Sharon A. Westphal served the Nation honorably in the U.S. Air Force from
January 1980 to December 1980, and from December 1982 to August 1984.5 In this appeal, which
is timely and over which the Court has jurisdiction,6 she contests an August 1, 2023, Board of
Veterans' Appeals (Board) decision that denied entitlement to SMC(k) based on loss of use of a
creative organ (vagina) as a matter of law.7 The Board explained that appellant is already in receipt
of one SMC(k) award for the loss of use of one creative organ (uterus) and that 38 U.S.C. § 1114(k)
does not permit more than one SMC(k) award for the loss of use of more than one creative organ.
This matter was referred to a panel of the Court to address whether under subsection 1114(k) a
veteran can be entitled to more than one award of SMC(k) for the loss of use of more than one
creative organ or if, instead, veterans are limited to one award of SMC(k) even if more than one
creative organ is at issue.8 We held oral argument on October 7, 2025, at Rutgers Law School in
Camden, New Jersey. 9 We thank the students, staff, and faculty of the law school for their
hospitality during our visit.
As we will explain, we hold that the plain language of subsection 1114(k) only authorizes
VA to grant one award of SMC(k) to a veteran based on the loss or loss of use of a creative organ,
no matter how many creative organs are at issue. To hold otherwise would render the phrase "one
or more" that Congress placed into subsection 1114(k) meaningless. And that is something we
can't do. So, because the Board did not clearly err when it denied entitlement to an additional award
of SMC(k) based on the loss of use of a creative organ (vagina) as a matter of law, we will affirm
the Board's decision.
I. BACKGROUND
Service treatment records reflect that during her service, appellant was diagnosed with and
treated for, among other conditions, endometriosis, chronic pelvic pain, and dyspareunia 10 due to
5
Record (R.) at 3275-76.
6
See 38 U.S.C. §§ 7252(a), 7266(a).
7
R. at 5-13.
8
For SMC purposes, "the term 'creative organs' in [sub]section 1114(k) means procreative organs" or organs that
"assist in the process of reproduction." VA Gen. Coun. Prec. 02-00 (Apr. 3, 2000).
9
Oral Argument (OA), https://www.youtube.com/watch?v=jU-1hyKtBM4.
10
Dyspareunia is "difficult or painful sexual intercourse." DORLAND'S MED. DICTIONARY ONLINE (DORLAND'S),
https://www.dorlandsonline.com/dorland/definition?id=15262 (last visited Jan. 15, 2026).
2
Case: 23-5171 Page: 3 of 23 Filed: 01/22/2026
a vaginal fissure. 11 Relevant to this appeal, appellant continued experiencing pelvic pain after
service, resulting in a total hysterectomy12 and a bilateral salpingo-oophorectomy.13 In June 2016,
appellant filed a claim seeking service connection for endometriosis and "hysterectomy 2nd to
endometriosis [with] SMC."14
In October 2016, a VA regional office (RO) (1) denied service connection for
endometriosis; (2) granted service connection for total abdominal hysterectomy status post
bilateral salpingo-oophorectomy, assigning a 50% disability rating, effective June 6, 2016; and (3)
granted entitlement to SMC(k) based on anatomical loss of a creative organ (uterus) due to service-
connected total hysterectomy.15
In June 2017, appellant filed a claim for service connection for vaginal fissures.16 In July
2017, a VA examiner diagnosed appellant with dyspareunia and opined that her vaginal fissures
were at least as likely as not related to service. 17 In August 2017, the RO granted service
connection for dyspareunia with vaginal fissures and assigned a noncompensable rating effective
June 22, 2017.18 Appellant challenged the assigned rating and ultimately appealed to the Board.19
In January 2020, the Board granted an initial disability rating of 30% for a service-
connected vaginal condition (dyspareunia and vaginal fissure). 20 After further development,
including an appeal to the Court, in October 2022, the Board denied an initial disability rating
greater than 30% for the service-connected vaginal condition and granted entitlement to a separate
initial disability rating of 30% for pelvic pain.21 In briefing to the Board, appellant explicitly raised
11
R. at 2119-21, 3275-76.
12
A total hysterectomy is a surgical removal of the uterus and cervix. DORLAND'S,
https://www.dorlandsonline.com/dorland/definition?id=24488 (last visited Jan. 15, 2026).
13
R. at 3144; A salpingo-oophorectomy is the "surgical removal of a uterine tube and ovary." DORLAND'S,
https://www.dorlandsonline.com/dorland/definition?id=44497 (last visited Jan. 15, 2026).
14
R. at 3165-68.
15
R. at 2158-63.
16
R. at 2114-17.
17
R. at 1910, 1992.
18
R. at 1865-68.
19
R. at 1806-07 (June 2018 Notice of Disagreement), 1778 (Feb. 2019 Statement of the Case); 1744 (Feb. 2019 Board
appeal).
20
R. at 1630.
21
R. at 286-95.
3
Case: 23-5171 Page: 4 of 23 Filed: 01/22/2026
the issue of entitlement to an additional SMC(k) award based on the anatomical loss of another
creative organ (vaginal condition). 22 In its October 2022 decision, the Board also denied
entitlement to SMC(k) for that condition because she was already in receipt of SMC(k) for loss of
use of her uterus.23 Appellant appealed the Board's decision to the Court.
In April 2023, the Court granted the parties' join motion for partial remand in which they
agreed that the Board provided inadequate reasons or bases for its determination concerning
SMC(k).24 Specifically, the parties agreed that the Board "did not discuss the portion of [subsection
§ 1114(k)] that states that the rate of compensation shall be $96 per month 'for each such loss or
loss of use,'" and, therefore, did not "address whether loss of use of more than one creative organ
warrants a single rate of $96 or a rate of $96 for 'each such loss or loss of use.'"25
In August 2023, the Board issued the decision on appeal. In it, the Board denied entitlement
to SMC(k) for loss of use of a second creative organ (vagina), finding it was not warranted as a
matter of law.26 The Board explained that appellant has already been awarded SMC(k) for loss of
use of one creative organ (uterus) and based on its interpretation of the statute, subsection 1114(k)
plainly allows for only one SMC(k) award even if there is loss of use of more than one creative
organ. 27 The Board explained that the phrase "for each such loss" refers to the categories of
anatomical areas described in subsection 1114(k). While the Board conceded that it would be
"possible to receive SMC(k) for separate disorders in the list, such as loss of the buttocks and also
for loss of a foot," because "each of these disabilities is separated by a comma and affect different
parts of the body," the "'loss or loss of use of one or more creative organs' is a single item in the
list."28 Further, the Board explained that "each individual creative organ is not eligible for SMC
(k)" because there is "'loss of use of a creative organ' when there is loss of one testicle or ovary, as
well as when there is loss of two testicles or ovaries." 29 While the Board acknowledged that
22
R. at 310-17.
23
R. at 295.
24
R. at 51-55.
25
R. at 51.
26
R. at 5.
27
R. at 6-13.
28
R. at 8.
29
R. at 9.
4
Case: 23-5171 Page: 5 of 23 Filed: 01/22/2026
SMC(k) isn't only available "in cases where the ability to procreate is at issue," the Board still
found that this fact does not change the plain text of the statute.30 This appeal followed.
II. PARTIES' ARGUMENTS
Both parties agree that the language of subsection 1114(k) is unambiguous.31 However,
each party offers a different interpretation about the meaning of that unambiguous language.
A. Appellant
Appellant argues that subsection 1114(k) is unambiguous and that the phrase "for each
such loss," means that SMC(k) may be awarded more than once, for "each one of those in the
preceding list, which includes one or more creative organs."32 She notes that this interpretation is
consistent with the legislative history, as the relevant statutory changes in 1967 were intended to
clarify that multiple awards of SMC(k) were possible. She contends that if Congress had intended
to limit SMC(k) to only a single loss or loss of use of a creative organ, it would have used stricter
language and perhaps would not have altered the pre-1967 language from "a creative organ" to
"one or more creative organs."33
B. Secretary
The Secretary agrees with appellant that subsection 1114(k) is unambiguous, but he asserts
that the Board did not err when it interpreted "for each such loss" as referring to each of the separate
categories of conditions on the list.34 He asserts that one award of SMC(k) is appropriate and that
"one or more creative organs" is just one category of conditions on that list. He maintains that
appellant's arguments are without merit because they ignore the "accurate grammatical analysis"
the Board provided and rely on strategically placed ellipsis to alter the plain meaning of the
statute.35
30
R. at 10.
31
OA at 18:02-:50 (Appellant's position); 24:48-:58 (Secretary's position).
32
Appellant's Brief (Br.) at 5.
33
Id. at 17.
34
Secretary's Br. at 11.
35
Id. at 7.
5
Case: 23-5171 Page: 6 of 23 Filed: 01/22/2026
III. ANALYSIS
We begin our analysis with the most important thing to consider in a case like this—the
plain language of subsection 1114(k). And, in that regard, we also underscore a court's appropriate
role in matters of statutory interpretation. We will explain why appellant's argument that she is
entitled to more than one SMC(k) award, one for each of her two creative organ losses, fails under
the plain language that Congress used in subsection 1114(k). Plus, even though it is unnecessary
given the plain language of subsection 1114(k), we describe why the legislative history supports
our interpretation of the statute. We ultimately conclude that the Board did not clearly err when it
denied entitlement to an additional award of SMC(k) for the loss of use of another creative organ
(vagina). So, we will affirm the Board's decision.
A. Subsection 1114(k)
"Courts interpret statutes, no matter the context, based on the traditional tools of statutory
construction."36 "[I]nterpretation of a statute . . . is a question of law,"37 and "[t]he Court reviews
statutory construction questions de novo."38 It is well-settled that when interpreting a statute, "[w]e
look to the plain meaning of the statute, and when we find the plain meaning, our job is simply to
apply it."39 In doing so, "'we look first to [the statutory] language, giving the words used their
ordinary meaning.'"40 But we do not put blinders on because "[c]ontext always matters."41 If the
statutory language is unambiguous and "'the statutory scheme is coherent and consistent,'" then
our statutory inquiry ends.42 In sum, a court's role is not to say what a statute should say but rather
to give effect to what a statute actually says.
Subsection 1114(k) contains two independent clauses, but only the first clause is at issue
here.43 The first clause of subsection 1114(k) provides that:
36
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 374 (2024).
37
Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003); see Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir.
2018).
38
Martinez v. Wilkie, 31 Vet.App. 170, 175 (2019) (citing 38 U.S.C. § 7261(a)(1)).
39
Frantzis v. McDonough, 35 Vet.App. 354, 360-61 (2022), aff'd, 104 F.4th 262 (Fed. Cir. 2024); see Kisor v. Wilkie,
588 U.S. 558, 574-75 (2019); Artis v. District of Columbia, 583 U.S. 71, 83 (2018); Frederick v. Shinseki, 684 F.3d
1263, 1269 (Fed. Cir. 2012).
40
Casey v. Wilkie, 31 Vet.App. 260, 265 (2019).
41
Van Dermark v. McDonough, 57 F.4th 1374, 1381 (Fed. Cir. 2023); see Casey, 31 Vet.App. at 265.
42
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal citation omitted).
43
See R. at 8; Appellant's Br. at 9; Secretary's Br. at 10.
6
Case: 23-5171 Page: 7 of 23 Filed: 01/22/2026
[I]f the veteran, as the result of service-connected disability, has suffered the
anatomical loss or loss of use of one or more creative organs, or one foot, or one
hand, or both buttocks, or blindness of one eye, having only light perception, has
suffered complete organic aphonia with constant inability to communicate by
speech, or deafness of both ears, having absence of air and bone conduction, or, in
the case of a woman veteran, has suffered the anatomical loss of 25 percent or more
of tissue from a single breast or both breasts in combination (including loss by
mastectomy or partial mastectomy) or has received radiation treatment of breast
tissue, the rate of compensation therefor shall be $96 per month for each such loss
or loss of use independent of any other compensation provided in subsections (a)
through (j) or subsection (s) of this section but in no event to exceed $3,327 per
month[.]44
There are three parts to the first clause of subsection 1114(k): The first part identifies who can
obtain entitlement to SMC(k); the second part lists the categories of anatomical areas that are
eligible for SMC(k); and the third part contains the operative clause—specifying the action VA
must take if the first two parts have been satisfied. There is no dispute concerning the first part of
subsection 1114(k)—we know appellant is a veteran who, as the result of a service-connected
disability, has lost the use of more than one creative organ.45 She currently receives SMC(k) for
the loss of use of one creative organ (uterus).46 So, we will focus on the other two parts.
To start, we note that both parties agree that Congress's use of the commas and disjunctive
term "or" repeatedly in the second part of subsection 1114(k) signals that there are eight categories
of anatomical areas that are subject to an award of compensation. 47 Appellant only seeks
entitlement to an additional SMC(k) award under the first of those eight categories—"one or more
creative organs."48 We limit ourselves to interpreting that statutory provision. Neither we nor the
Federal Circuit has interpreted this phrase. In situations where a disputed phrase has not yet been
44
38 U.S.C. § 1114(k) (emphasis added).
45
Secretary's Br. at 13. In her initial brief, appellant argued that "VA waived its opportunity to contest whether the
dyspareunia is capable of resulting in the loss of use of a creative organ" and that "if it is unclear whether [her] disorder
qualifies for loss or loss of use of a creative organ," then the Board should address it in the first instance. Appellant's
Br. at 7. But the Secretary never argued that appellant's dyspareunia results in the loss of use of a creative organ.
Indeed, the Secretary expressly concedes that the Board "clearly assumed" that appellant's "vagina was a creative
organ." Secretary's Br. at 13. Therefore, we need not discuss this argument further.
46
R. at 5, 2158-63 (Nov. 2016 rating decision granting SMC(k) for loss of use of her uterus based on a service-
connected condition).
47
Appellant's Br. at 8; Secretary's Br. at 11; Reply Br. at 2.; see also Loughrin v. United States, 573 U.S. 351, 357
(2014) (recognizing the familiar canon of statutory construction in which terms connected by disjunctive "or" are "to
be given separate meanings.").
48
Appellant's Br. at 8-10.
7
Case: 23-5171 Page: 8 of 23 Filed: 01/22/2026
defined, we have turned to the dictionary to determine the ordinary meaning of undefined terms.49
In accord with common sense, and not all that controversial, the meaning of "one or more" means
one or a number greater than one.50 So, we turn next to the third part of subsection 1114(k) to see
how VA should award SMC(k) given that appellant has the loss of use of more than one creative
organ. To reiterate, the operative part of subsection 1114(k) provides that "the rate of compensation
therefor shall be $96 per month for each such loss or loss of use."51 But merely reciting this phrase
does not tell us what "for each such loss or loss of use" means. To determine the meaning of this
phrase, we must examine the context and structure of the statute, a matter we turn to next.
B. What does "for each such loss or loss of use" in subsection 1114(k) mean?
The parties' positions about the meaning of the phrase "for each such loss or loss of use"
frame the issue. Appellant takes the position that the phrase means that VA is to award SMC(k)
for each anatomical loss mentioned in subsection 1114(k) without regard to the categories of
anatomical loss that Congress provided. 52 In contrast, the Secretary asserts that the phrase,
particularly emphasizing the word "each," refers to each of the eight categories of anatomical loss
or loss of use—meaning that more than one award of SMC(k) may be warranted if more than one
category is met but not if a single category is met more than once.53
Let's use a simple analogy to visualize what separates the parties' positions. Assume there
are eight baskets on a table. Those baskets are akin to the eight categories of anatomical loss or
loss of use that Congress set out in subsection 1114(k). In each of our metaphorical baskets, there
are several items. If one were asked to take some action with respect to "each" thing on the table,
what would that mean? The Secretary's view would be that the "each" referred to the baskets—
what are the eight anatomical areas that Congress listed in subsection 1114(k). In contrast,
appellant's view in our table example would say that "each" refers to all the items in the various
baskets. We conclude that the plain language, context, and structure of subsection 1114(k) favor
the Secretary's reading of that statutory provision.
49
See Watkins v. McDonough, 35 Vet.App. 256, 264 (2022); see also Perrin v. United States, 444 U.S. 37, 42 (1979).
50
"One" means "a single person or thing." MERRIAM WEBSTER ONLINE, https://www.merriam-
webster.com/dictionary/one (last visited Jan. 15, 2026). And "more" means "a greater quantity, number, or amount."
Id. at https://www.merriam-webster.com/dictionary/more (last visited Jan. 15, 2026).
51
38 U.S.C. § 1114(k) (emphasis added).
52
Appellant's Br. at 10-13.
53
Secretary's Br. at 10-11.
8
Case: 23-5171 Page: 9 of 23 Filed: 01/22/2026
Looking at the structure of subsection 1114(k) as a whole, it is grammatically correct to
read the word "each" as referring to the eight categories of anatomical loss or loss of use listed in
the preceding part of the provision. 54 Congress clearly defined the context by specifying that
"each" refers to "such loss or loss of use."55 And this reading aligns with the fact that Congress
approached each single category of loss or loss of use individually, crafting limitations in some
but not others. For example, some categories require the loss of "one hand" or "one foot," whereas
some categories require the loss of "both buttocks" or a specific percentage of loss of a body part.56
In those instances, the statute instructs us that if there is a situation in which a veteran has multiple
losses in the hand and foot categories, another subsection should be used to rate more than one
hand or foot disability.57 That is not the case in the creative organ category—it contains no limiting
language. Rather, Congress accounted for the singular and plural forms of a loss within the single
creative organ category and we are not directed to look elsewhere.58
This is not to say that sometimes it may also be grammatically correct to read "each" as
referring to something more along the lines that appellant suggests. So, if it is grammatically
possible to accept both parties' positions, what are we to do? Basically, Congress provided the
answer for us. That is so because, if we accepted appellant's reading, the words "or more" in the
creative organ category would be rendered meaningless because they would serve no purpose.
Let's consider a series of examples to understand why that is so. Assume Veteran A has the loss of
use of creative organ #1. There is no question that an award of SMC(k) is appropriate here. As we
stated above, "one or more" means one and it also means more than one. Now assume Veteran B
has the loss of use of creative organ #1 and creative organ #2. Under appellant's point of view,
Veteran B would be entitled to two awards under subsection 1114(k). Tellingly, however, that
conclusion is correct whether the statute reads as it does ("one or more") or if one changed it to
say "one creative organ" or "a creative organ." The words "or more" would never have any purpose
54
See GRAMMARFOREXPERTS ONLINE, http://grammarforexperts.com/every-vs-all-vs-each/ (last visited Jan. 15,
2026) (explaining that "each" implies that all members of a group are considered one by one or individually); see also
Barry v. McDonough, 101 F.4th 1348, 1357 (Fed. Cir. 2024).
55
38 U.S.C. § 1114(k).
56
See id.
57
See 38 U.S.C. § 1114(1), (m).
58
VA's implementing regulation conforms to this view. See 38 C.F.R. § 3.350(a)(1)(i) (2025) (providing that "[l]oss
of a creative organ will be shown by acquired absence of one or both testicles . . . or ovaries or other creative organ.").
9
Case: 23-5171 Page: 10 of 23 Filed: 01/22/2026
under appellant's reading. In contrast, the words "or more" do work under the Secretary's point of
view. In Veteran B's example, the fact that two creative organs are in play makes the "or more"
phrase meaningful. It says you don't count twice. Congress deliberatively chose to use the phrase
"one or more" in the creative organ category under subsection 1114(k), and we must give it effect.
59
It is a well-established canon of statutory interpretation that we give effect to all terms and avoid
rendering parts of the statute's text "'inoperative or superfluous, void or insignificant.'"60 In other
words, our job as judges is to give effect to every word that Congress employed. Appellant's point
of view does not allow us to do so, while the Secretary's interpretation does. This observation
effectively answers the question before us.
Although it is not necessary to go beyond the plain language Congress used in subsection
1114(k) to reach our holding, the legislative history of this provision supports our conclusion.
Congress modified the SMC(k) statutory language as part of the Veterans' Pension and
Readjustment Assistance Act of 1967. 61 The Public Law provided that the intent of the
modification was to "increase the rates of pension payable to certain veterans and their widows to
provide additional readjustment assistance for veterans of service after January 31, 1955, and for
other purposes."62 Overall, and as the Board explained, Congress wanted to allow for multiple
SMC(k) awards, which was not possible before 1967.63 For example, the amended language would
allow two SMC(k) awards if a veteran had loss of one foot and loss of use of one or more creative
organs (two body area losses). In other words, a veteran could obtain an SMC(k) award for each
59
Pub. L. No. 90-77, 81 Stat. 190 (Aug. 31, 1967).
60
See Martinez, 31 Vet.App. at 176 (explaining that a court must presume that each word used by Congress in a statute
is there for a reason and give effect to every word if possible); see also Marx v. Gen. Revenue Corp., 568 U.S. 371,
386 (2013) (stating that the "canon against surplusage is strongest when an interpretation would render superfluous
another part of the same statutory scheme"); Leocal v. Ashcroft, 543 U.S. 1, 12 (2004) (directing that reviewing courts
"must give effect to every word of a statute wherever possible"); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is
'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" (quoting Duncan v. Walker, 533
U.S. 167, 174 (2001))).
61
Pub. L. No. 90-77, 81 Stat. 190 (Aug. 31, 1967).
62
Id.
63
R. at 11-12; Pub. L. No. 90-77, 81 Stat. 178 (Aug. 31, 1967), 113 Cong. Rec. 23790 ("The conferees agreed to . . .
allow[] a statutory award . . . for each anatomical loss they suffer. . . . Under present law only a single . . . award is
payable, regardless of how many anatomical losses are sustained."), 23145 ("The language of existing law . . . does
not permit the payment of a higher statutory award for certain combinations of disability, such as the anatomical loss
of an eye and one extremity, though each alone would entitle the veteran to a statutory award . . . The bill before us
contains provisions that assure a statutory award . . . for each such loss.") (Aug. 23, 1967).
10
Case: 23-5171 Page: 11 of 23 Filed: 01/22/2026
category of loss. This amended language did not change the fact that loss of use of one creative
organ or loss of use of more than one creative organ satisfies the creative organ category as a single
anatomical loss for SMC(k) purposes. Indeed, in a 1967 congressional record, the Chairman of the
House Committee on Veterans Affairs explained that without the amendment, "a veteran with the
loss of an eye and a hand may . . . receive only one [SMC(k) award]" but enactment of the
amended bill "will authorize in such a case" two SMC(k) awards.64 The Chairman also recognized
that the amended bill contained limitations such as placing a cap on the total amount that VA can
award under SMC(k), and "the loss of more than one creative organ would, for this purpose, be
considered a single 'loss.'"65 Of course, such a statement could not alter the meaning of subsection
1114(k) if appellant's view of that provision was correct. But the statement is helpful as
confirmation of the conclusion we have reached about the correct meaning of this statutory
provision based on the plain language that Congress used.
We make one final point: It may be that the better policy would be to adopt appellant's
position. After all, the loss of a creative organ (or its use) can lead to different problems. For
example, a particular organ might affect the ability to reproduce while another issue might affect
the ability to engage in sexual intercourse without pain. And we might have adopted appellant's
view if we served in Congress. But we don't. As we have said, our job as judges is to give effect
to what Congress has done.
C. Summary
After reviewing the plain language, context, and structure of subsection 1114(k), the Board
found that "the writing of this statute is not unclear or ambiguous, and does plainly set forth its
intent that for each of these separate types of disabilities in the list, one award of SMC(k) can be
assigned."66 As we described above, the Board's interpretation of subsection 1114(k) is correct and
is consistent with our decision here today. Congress has provided that a veteran such as appellant
here with a loss of use of two creative organs is entitled to only a single award of SMC(k) because
the statute bases entitlement on the loss or loss of use of "one or more" such organs. Therefore, we
conclude that the Board did not clearly err when it found that appellant was not entitled to more
64
See 113 Cong. Rec. 6860 (Mar. 15, 1967) (statement of rep. Olin E. Teague); see also 113 Cong. Rec. 7236 (Mar.
20, 1967).
65
Id.
66
R. at 8-9.
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than one SMC(k) award for the loss of use of more than one creative organ.67 We, therefore, affirm
the Board's decision.
IV. CONCLUSION
After consideration of the parties' briefs, oral argument, the governing law, and the record,
the Court AFFIRMS the August 1, 2023, Board decision.
JAQUITH, Judge, dissenting. Subsection 1114(k) unambiguously provides that a veteran
who, "as the result of service-connected disability, has suffered the anatomical loss or loss of use
of one or more creative organs, . . . shall be [compensated] $96 per month for each such loss or
loss of use."68 It is undisputed that Sharon Westphal has suffered the service-connected anatomical
loss of her uterus and service-connected debilitating dyspareunia and vaginal fissures that have
impaired the use of her vagina.69 In this circumstance, the statute required the Board to determine
whether Ms. Westphal's dyspareunia and vaginal fissures resulted in the loss of use of her vagina
because, if so, subsection 1114(k) plainly provides for Ms. Westphal to receive $96 per month for
each loss—the anatomical loss of her uterus and the loss of use of her vagina—totaling $192 per
month. So I respectfully dissent from the majority's approval of VA's circumvention of the
statutory mandate.
To put the worst first, the Board said of the veteran's accurate recitation of the operative
statutory language: "[T]he [veteran's] April 2023 brief presents an inaccurate depiction of the
statute in question. Through the selectively convenient use of ellipses, it alters the structure of the
sentence and its meaning entirely."70 And the Board called the veteran's argument of that statutory
language "disingenuous," 71 offering nothing but its own contradictory conclusion to back its
accusation.72 The Board does not explain how or why the statute's listing of a series of anatomical
67
The Board's determination whether a veteran is entitled to SMC is a factual finding that this Court reviews for clear
error. Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).
68
38 U.S.C. § 1114(k).
69
R. at 50.
70
R. at 7.
71
R. at 9.
72
The baselessness of the Board's hostility is highlighted by the parties' joint motion for partial remand, which
emphasized by underlining, in subsection 1114(k), "the anatomical loss or loss of use of one or more creative organs,"
and "for each such loss or loss of use," as framing the issue necessitating remand for the Board to "address whether
12
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losses or losses of use alters the operative language for each one—compensation of $96 per month.
Although the majority does not explicitly embrace the Board's unseemly, unwarranted, and
unsupported accusation, it reaches the same result.
The Statute Provides SMC(k) for Each Loss of One or More Creative Organs
Getting there depends on both the Board and the majority adding a limitation to the statute.
The Board construes subsection 1114(k) as providing one award of compensation for each separate
type of disability, affecting different parts of the body.73 The majority calls eight anatomical areas
and losses "categories" and analogizes them to "baskets" such that veterans can only be
compensated for one loss per category.74 The problem is that the statute does not say that. The
determinative language for the backside of every comma in the statute's description of disabilities
is "for each such loss or loss of use." 75 Congress could have said "for each separate type of
disability affecting a different body part" as the Board envisioned, 76 or "for each category of
anatomical loss," as the majority does. 77 But Congress did not do so. As the majority
acknowledges, the reference to creative organs in subsection 1114(k) "contains no limiting
language."78 Yet the majority's categorization construct and basketweaving adds a limitation that
restricts a veteran to $96 per month as compensation for the loss or loss of use of creative organs,
however many losses the veteran must endure. That should not stand, because "the Court will not
insert limiting language that is not present in the statute."79
Moreover, "the first criterion in the statutory interpretation hierarchy [is] a natural reading
of the full text."80 In determining whether the natural reading of the statutory language reveals its
loss of use of more than one creative organ warrants a single rate of $96 or a rate of $96 for 'each such loss or loss of
use.'" R. at 51.
73
R. at 8-9.
74
Ante at 7-9.
75
38 U.S.C. § 1114(k).
76
R. at 8-9.
77
Ante at 8-9.
78
Ante at 9.
79
Buffington v. Wilkie, 31 Vet.App. 293, 301 (2019), aff'd sub nom. Buffington v. McDonough, 7 F.4th 1361 (Fed.
Cir. 2021).
80
United States v. Wells, 519 U.S. 482, 483, 490 (1997).
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plain meaning "we look to 'the language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.'"81The majority endorses these principles82 but
misreads their impact in this case.
The natural reading of subsection 1114(k) provides that a veteran who, "as the result of
service-connected disability, has suffered the anatomical loss or loss of use of one or more creative
organs, . . . shall be [compensated] $96 per month for each such loss or loss of use." The applicable
regulation states it as plainly as the statute: "Special monthly compensation under [subsection]
1114(k) is payable for each anatomical loss or loss of use of . . . one or more creative organs."83
By statute and regulation, the measure of SMC(k) is each loss, one by one, individually.84
The majority acknowledges that the veteran could be right, except that "the words 'or more'
in the creative organ category would be rendered meaningless."85 But the context makes clear that
giving effect to the words "or more" means that veterans are entitled to $96 per month for each
loss or loss of use of a creative organ.86 That distinguishes creative organs from feet, hands, and
eyes. The natural reading of the statute yields this result: for each loss or loss of use of one or more
creative organs, $96 per month, per subsection 1114(k); for the loss or loss of use of one foot, $96
per month, per subsection 1114(k), but for the loss or loss of use of both feet, $3,327 per month,
per subsection 1114(l); for the loss or loss of use of one hand, $96 per month, per subsection
1114(k), but for the loss or loss of use of both hands, $3,671 per month, per subsection 1114(m);
for blindness of one eye, having only light perception, $96 per month, per subsection 1114(k), but
for blindness in both eyes, with 5/200 visual acuity or less, $3,327 per month, per subsection
1114(l), and for blindness of both eyes, having only light perception, $3,671 per month, per
subsection 1114(m).
The Court has walked this ground before. In Barry v. McDonough, the majority likewise
read a limitation into section 1114 and into 38 C.F.R. § 3.350 that wasn't there.87 The Federal
81
Terry v. McDonough, 37 Vet.App. 1, 8 (2023) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997)).
82
See ante at 6.
83
38 C.F.R. § 3.350(a) (2025).
84
See ante at 9, n.54.
85
See ante at 9-10.
86
See 38 U.S.C. § 1114(k); Martinez v. Wilkie, 31 Vet.App. 170, 176 (2019); ante at 10 n.60.
87
See Barry v McDonough, 35 Vet.App. 111, 128-29 (2022) (Jaquith, J., dissenting), reversed and remanded, 101
F.4th 1348 (Fed. Cir. 2024).
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Circuit reversed because the statute and regulation have "(1) eligibility requirements to show
entitlement to SMC or SMC increases; (2) mandatory SMC awards or increases; and (3) an SMC
cap," but no additional limitations, so they permit more than one increase.88 Regarding subsection
1114(k), the Federal Circuit noted that it "enumerates several different disabling conditions that
give a relatively minor SMC increase," so "its operation could be undermined without specifying
that each condition independently confers an increase in SMC."89 Denying Ms. Westphal the small
increase that subsection 1114(k) provides for her second seriously disabling condition violates the
statute and also contravenes the "mandate that separate disabilities are to be rated separately."90
Effectuating the statutory language to provide $96 per month for each creative organ loss (for a
total of $192 per month) fulfills the statute's prescription "that more severe disabilities are
compensated at a higher level of SMC."91
Had Congress truly wanted to foreclose SMC for the loss of more than one creative organ,
"it would have done so more explicitly." 92 Congress did nothing of the sort. Until 1967, the
predecessor to subsection 1114(k) provided as follows:
if the veteran, as the result of service-connected disability, has suffered the
anatomical loss or loss of use of a creative organ, or one foot, or one hand, or both
buttocks, or blindness of one eye, having only light perception, the rate of
compensation therefor shall be $47 per month[.]93
In 1967, section 314(k) was amended to add the language that is operative in this case, providing:
if the veteran, as the result of service-connected disability, has suffered the
anatomical loss or loss of use of one or more creative organs, or one foot, or one
hand, or both buttocks, or blindness of one eye, having only light perception, or has
suffered complete organic aphonia with constant inability to communicate by
speech, or deafness of both ears, having absence of air and bone conduction, the
rate of compensation therefor shall be $47 per month for each such loss or loss of
use[.]94
88
Barry v. McDonough, 101 F.4th 1348, 1355 (Fed. Cir. 2024).
89
Id. at 1357.
90
Banschbach v. McDonough, 37 Vet.App. 422, 428 (2024).
91
Bria v. Wilkie, 33 Vet.App. 228, 235 (2021).
92
Loomis v. Collins, 38 Vet.App. 319, 328 (2025).
93
38 U.S.C. § 314(k) (1958).
94
38 U.S.C. § 314(k) (1967); see Pub. L. No. 90-77, 81 Stat. 190 (Aug. 31, 1967) (emphasis added).
15
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The Conference Agreement (on August 14, 1967) noted that existing law authorized only one
allowance under section 314(k), but the amended version "would authorize the payment of the
additional allowance for each such loss.95 Neither the Conference Agreement nor the amended
statute (passed on August 31, 1967) contains any limiting language for monthly compensation for
each loss or loss of use of one or more creative organs. The majority relies on a single sentence in
the explanation of the House bill by Rep. Teague of Texas five months before the Conference
Agreement and subsequent enactment: "Under the amended bill, however, the total payment in
any case may not exceed $400 and the loss of more than one creative organ would, for this purpose,
be considered a single 'loss.'"96 Rep. Teague's statement is not a model of clarity, suggesting that
considering more than one loss of a creative organ to be a single loss (itself a fallacy) would be for
the purpose of the total loss in any case not exceeding $400 (rather than for foreclosing a veteran's
recovery for two separate creative organ losses). And his statement was not carried over in the
Conference Agreement or, most importantly, in the actual enactment. "Because we are a
government of laws, not of men, and are governed by what Congress enacted rather than by what
it intended, the sole object of the interpretative enterprise is to determine what a law says."97 As
the Supreme Court recently reemphasized, the certainty of what Congress actually enacted matters
far more than what it may have expected or intended. 98 The solitary sentence the majority
highlights is scant legislative history that "does not move the needle."99
"The only reliable indication of [congressional] intent—the only thing we know for sure
can be attributed to all of them—is the words of the bill that they voted to make law."100 And "it
is only the words of the bill that have presidential approval," so when it comes to the Court, "'[w]e
do not inquire what the legislature meant; we ask only what the statute means.'" 101 Here, the
operative words were added together in 1967: Under the amended statute, the loss or loss of use
95
H.R. Rep. No. 90-554, at 32 (Aug. 14, 1967).
96
H.R. Rep. No. 90-130, at 17 (Mar. 15, 1967); see ante at 11 n.64.
97
Lawson v. FMR LLC, 571 U.S. 429, 459–60 (2014); see Crews v. McDonough, 36 Vet. App. 67, 95 (2023) (Falvey,
J., dissenting).
98
Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 381 (2025); Stanley v. City of Sanford, Fla., 606 U.S. 46, 58
(2025).
99
Medina, 606 U.S. at 381.
100
Crosby v. Natl. For. Trade Council, 530 U.S. 363, 390–91 (2000) (Scalia, J., concurring).
101
Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J., concurring) (quoting Oliver
Wendell Holmes, COLLECTED LEGAL PAPERS, 207 (1920)).
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of "one or more creative organs" results in compensation "for each such loss or loss of use."
Because Congress did not explicitly limit a veteran's entitlement under subsection 1114(k) to SMC
for only one of a veteran's service-connected losses or losses of use of a creative organ, the Court
must presume that it did not intend such a limitation.102
The Board offers only two contentions to support its strained construction of the statute to
say that each loss doesn't apply to each loss of a creative organ, but neither contention bears the
strain. First, the Board points to § 3.350(a)(1) as "clearly indicat[ing] that each individual creative
organ is not eligible for SMC(k), as there is 'loss of a creative organ' when there is loss of one
testicle or one ovary, as well as when there is loss of two testicles or two ovaries."103 However, the
regulation provides no such clear indication—and if it did, it would be trumped by the statute.104
Instead, the regulation clearly states that the statute provides for SMC for "each anatomical loss or
loss of use of . . . one or more creative organs."105 The language in § 3.350(a)(1) the Board relied
on obviously refers to creative organs that come in pairs, specifying testicles and ovaries. 106 The
complete sentence is: "Loss of a creative organ will be shown by acquired absence of one or both
testicles (other than undescended testicles) or ovaries or other creative organ."107 In context, "one
or both" applies to "testicles . . . or ovaries" but not to creative organs that do not come in pairs. It
would be nonsensical for "one or both" to refer to creative organs that are singular, such as the
uterus and vagina at issue here. For such singular organs, the sentence plainly means only that loss
of a creative organ will be shown by the acquired absence of that creative organ.108 If § 3.350(a)(1)
102
Payne v. Wilkie, 31 Vet.App. 373, 384 (2019).
103
R. at 9.
104
See Fairfield S. Co. v. Dir., Off. of Workers' Comp. Program, 161 F.4th 791, 801 (11th Cir. 2025) ("[W]here an
interpretation of a regulation conflicts with a statute, the statute controls."); see also Brown v. Gardner, 513 U.S. 115,
121-22 (1994) (holding that administrative regulations that are inconsistent with statute do not control, even when
Congress has reenacted the statute amidst decades of contrary VA practice); Swain v. McDonald, 27 Vet.App. 219,
224 (2015) ("It is axiomatic that a regulation may not trump the plain language of a statute.").
105
38 C.F.R. § 3.350(a).
106
38 C.F.R. § 3.350(a)(1)(i).
107
Id.
108
Although "acquired absence" is not defined in VA's regulation, in general, it means that an organ was lost or
removed due to disease, trauma, or surgery, rather than congenitally absent. See Tabular List of Diseases and Injuries,
International Classification of Diseases, 10th Rev., Clinical Modification (ICD-10-CM), U.S. CTRS. FOR DISEASE
CONTROL & PREVENTION ("Acquired absence of organs . . . [i]ncludes: postprocedural or post-traumatic loss of body
part" but "[e]xcludes1: congenital absence."), https://ftp.cdc.gov/pub/health_statistics/nchs/publications/
ICD10CM/2022/icd10cm-tabular-2022-April-1.pdf (last visited Jan. 4, 2026); Acquired, DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY 18 (33d ed. 2020) ("not genetic, but produced by influences originating outside the
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has any relevance to this case, it favors the veteran based on the negative implication canon: "[t]he
expression of one thing implies the exclusion of others," 109 so paired testicles and ovaries are
covered but singular creative organs are not—they are excluded from any operative effect of
"both."
A year after the statute was amended to state that the loss or loss of use of "one or more
creative organs" results in compensation "for each such loss or loss of use," § 3.350(a) was changed
to likewise state that "[s]pecial monthly compensation . . . is payable for each anatomical loss or
loss of use of . . . one or more creative organs."110 It is telling that over 57 years have passed since
the regulatory changes adding "for each anatomical loss or loss of use of . . . one or more creative
organs," and VA apparently has not advanced any authoritative statement or official agency
position that supports the interpretation by the Board that the majority embraces—changing each
loss to each category of loss.111 At oral argument, the Secretary acknowledged that the Board's
interpretation is not even set forth in the VA Adjudication Procedures Manual (M21-1),112 and that
the Secretary's argument is based on what Congress did when it changed the SMC statute in
1967.113 When VA wants to limit SMC, VA knows how to say so specifically, as it did with respect
to extremities.114 But there's nothing like that for creative organs. Unfortunately for veterans, the
organism.").
109
Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 107 (2012).
110
Special Monthly Compensation Ratings, 33 Fed. Reg. 16273 (Nov. 6, 1968).
111
See Kisor v. Wilkie, 588 U.S. 558, 577 (2019) (When deference to an agency's regulatory interpretation of statutes
was encouraged, such deference was limited to "the agency's 'authoritative' or 'official position.'"). The Supreme Court
subsequently made clear that "courts must exercise independent judgment in determining the meaning of statutory
provisions," including the statute's single, best reading. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024).
112
See, e.g., M21-1, pt. VIII, subpt. iv, ch. 4, § A.4.d. ("The issue of entitlement to SMC for L/LOU[loss of use] of a
creative organ may be • based on a specific claim, or • raised within the scope of another claimed issue when
entitlement is shown in the evidence of record," and "[e]ntitlement to SMC (k) for one or more creative organs • may
be based on a multi-link causal chain between an SC disability and the LOU or anatomical loss, and • is not limited to
certain disabilities."); pt. V, subpt. iii, ch. 8, § A.1.e. ("SMC (k) for loss of use (LOU) of a creative organ will be
inferred and awarded whenever SC for [female sexual arousal disorder (FSAD)] is granted."); and pt. V, subpt. iii.,
ch. 8, § A.2.h. ("SMC due to anatomical loss or loss of use of a creative organ is warranted when an SC condition
results in infertility.").
113
OA at 29:15 – 31:23; see ante at 2 n.9.
114
See M21-1, pt. VIII, subpt. iv, ch.4, § A.2.e.:
Do not assign SMC for • loss or loss of use (L/LOU) of a leg and L/LOU of the foot of the same
leg, or • L/LOU of an arm and L/LOU of the hand of the same arm. If a [v]eteran has L/LOU of a
leg, the L/LOU of the foot of the same leg is subsumed in the level of SMC assigned to the leg.
Similarly, if a [v]eteran has L/LOU of an arm, the L/LOU of the hand of the same arm is subsumed
in the level of SMC assigned to the arm.
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categorical basket limitation the Board and the majority add to subsection 1114(k) and § 3.350(a)
cabins the veteran's compensation but not her disabilities, and those are separate and serious.
The Board's second contention is a red herring. The Board suggests that the veteran's
argument that her anatomical loss of her uterus and loss of use of her vagina—two creative
organs—is comparable to entitling a male veteran to two SMC(k) awards for erectile dysfunction,
one for the inability to procreate and one for the psychological impact.115 There are medical issues
implicated in the Board's set-up that it does not attempt to unravel—and would not be competent
to decide.116 And the Board blurs the statutory mandate—SMC is based on the anatomical loss or
loss of use of a creative organ, meaning that "the ability of the creative organ to function must be
diminished,"117 whether the diminished functioning arises from physical or mental impairment
(such as loss of libido),118 and whether the diminished functioning is procreative or sexual.119 The
Board's pretense ignores VA's acknowledgement that, for all veterans, SMC(k) is warranted when
the evidence shows that service-connected sexual dysfunction results in loss of use of a creative
organ and when there is a service-connected condition resulting in infertility.120 More basically,
See generally 38 C.F.R. § 4.26(a) (2025) ("The use of the terms 'arms' and 'legs' is not intended to distinguish between
the arm, forearm and hand, or the thigh, leg, and foot, but relates to the upper extremities and lower extremities as a
whole.").
115
R. at 10.
116
See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006) ("[T]he Board is not competent to render [medical
assessments] in the first instance."); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) ("[The Board] may consider
only independent medical evidence to support [its] findings."), overruled on other grounds by Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998).
117
Bria, 33 Vet.App. at 234.
118
Id. at 236.
119
See Summary of Legal Interpretation of the General Counsel—Precedent Opinion 5-89, Entitlement to Special
Monthly Compensation for Anatomical Loss of a Creative Organ Following Elective Sterilization, 54 Fed. Reg. 38033-
02, 1989 WL 295289 (Sept. 14, 1989) ("[T]he fact that a veteran has undergone elective, noncompensable sterilization
does not bar entitlement to special monthly compensation for subsequent service-connected anatomical loss of a
creative organ."); Summary of Legal Interpretation of the General Counsel-Precedent Opinion 93-90, Entitlement to
Special Monthly Compensation for Anatomical Loss of a Creative Organ, 56 Fed. Reg. 1220-01, 1991 WL 370040
(Jan. 11, 1991) ("[A] veteran who suffers a service-connected anatomical loss of a creative organ is entitled to SMC,
regardless of whether the veteran suffered prior nonservice-connected loss of use of that creative organ.").
120
See M21-1, pt. V, subpt. iii, ch. 8. § A.1.e. ("Entitlement to special monthly compensation (SMC) must be
considered in [female sexual arousal disorder (FSAD)] cases. SMC (k) for loss of use (LOU) of a creative organ will
be inferred and awarded whenever [service connection (SC)] for FSAD is granted."); pt. V, subpt. iii, ch. 7. § 4.b.
("Grant SMC (k) when the evidence shows that SC [erectile dysfunction (ED)] constitutes LOU of a creative organ.
Other diagnoses of sexual dysfunction that may result in LOU include (but are not limited to) loss of libido, loss of
sexual drive, or impotence."); pt. V, subpt. iii, ch. 7, § 5.d., and pt. V, subpt. iii, ch. 8, § A.2.h. ("SMC due to anatomical
loss or LOU of a creative organ is warranted if there is an SC condition resulting in infertility."). See also Claims
Based on Chronic Effects of Exposure to Vesicant Agents, 59 Fed. Reg. 3532-01, 1994 WL 16851 (Jan. 24, 1994)
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the Board equates the veteran's functional loss of two creative organs—her anatomical loss of her
uterus and her loss of use of her vagina—to the loss or loss of use of the single creative organ of
the Board's straw man. The Board's erectile dysfunction analogy is not at all analogous because
the veteran has suffered the functional loss of two creative organs, not just one.
The Veteran's Separate Vagina Disability Merits SMC(k) Consideration
In addition to her anatomical loss of a creative organ—her uterus, along with her ovaries
and fallopian tubes via a service-connected total abdominal hysterectomy in 1997—the veteran
has, for decades, suffered from vaginal fissures and dyspareunia, disabilities that the hysterectomy
did not address. The veteran is entitled to adjudication of her application for SMC(k) for the loss
of use of her vagina on the merits in accordance with the basic principle that "separate disabilities
are to be rated separately."121 As the record makes clear, the veteran's anatomical loss of her uterus
through a hysterectomy and her dyspareunia related to vaginal fissures are distinct disabilities with
different origins. The veteran's hysterectomy was a result of endometriosis,122 a disease,123 but her
dyspareunia due to vaginal fissures124 was "established as directly related to military service" as a
consequence of treatment she received, such as a perineorrhaphy or a perineoplasty. 125 Or her
vaginal fissures and dyspareunia resulted from an injury.
The history of the veteran's claimed loss of use of her vagina due to dyspareunia from
vaginal fissures dates to November 1980, when she was a victim of military sexual trauma (MST),
enduring "severe, excruciating pain" and physical injury. 126 In May 1981, she was treated for
("Sexual dysfunction is not compensated under VA's Schedule for Rating Disabilities (38 C.F.R. Part 4) but rather
under [subsection] 1114(k), which provides special monthly compensation for the loss or loss of use of a creative
organ.").
121
Banschbach, 37 Vet. App. at 428.
122
See, e.g., R. at 292, 373, 375, 2338.
123
Endometriosis, U.S. Dep't of Health & Hum. Servs., NIH, https://www.nichd.nih.gov/health/topics/factsheets/
endometriosis (last visited Jan. 21, 2026) ("Endometriosis is a disease in which tissue similar to the lining of the uterus
grows in other places in the body.").
124
A fissure is "[a] deep furrow, cleft, or slit." Fissure, STEDMAN’S MEDICAL DICTIONARY 733 (28th ed. 2006).
125
R. at 1778, 1842, 1867, 1910.
126
R. at 1992. The regional office (RO) said there was no evidence to confirm the veteran's claim of MST. R. at 2137,
2160. But MST, as well as PTSD are noted in her medical history, R. at 640, 2021, 2024, and in a VA doctor's "medical
diagnosis impacting care." R. at 640. That doctor wrote that the veteran's "[d]ysparuenia started after sexual trauma
she experienced in the past." R. at 642. Another VA doctor noted that the veteran had been the victim of a sexual
assault and said that she "finally found the courage to file a claim and [VA] denied it," and that she was physically
injured and had surgery. R. at 2021. And the veteran's counsel has argued to the Board that "[t]he effective date for
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abdominal pain. 127 In October 1982, she acknowledged having been treated for a "female
disorder."128 In June 1983, she was diagnosed, based on laparoscopy, with endometriosis causing
chronic pelvic pain.129 In October 1983, she was diagnosed with vaginal fissure and dyspareunia
and underwent perineoplasty to correct her vaginal fissure.130 Within a few weeks of her August
1984 honorable discharge from active duty, the veteran submitted a claim for endometriosis and
vaginal fissures.131 A January 1985 VA exam noted the veteran's history of endometriosis and
diagnosed endometriosis but found nothing current and denied her claim.132
On August 21, 1997, the veteran's history of severe disabling dysmenorrhea, abdominal
pain, infertility, and endometriosis resulted in a total abdominal hysterectomy and a bilateral
salpingo-oophorectomy—the removal of her uterus, cervix, ovaries, and fallopian tubes.133
In June 2016, the veteran submitted a claim for endometriosis, a hysterectomy secondary
to endometriosis, and a fissure secondary to MST.134 In October 2016, a VA examiner noted that
the veteran "developed a chronic problem regarding abdominal pain and hemorrhaging overtime
during service," with issues beginning as early as May 1981. 135 The examiner opined that the
veteran's total abdominal hysterectomy was likely proximately due to the service-connected
endometriosis 136 and the RO granted service connection for the veteran's total abdominal
hysterectomy and bilateral salpingo-oophorectomy, as well as entitlement to SMC(k) based on the
anatomical loss of a creative organ, both effective the date of the veteran's June 2016 claim.137
[the veteran's] dyspareunia should be back to the original claim filed in 8/23/84 for the sexual assault because it is
intertwined with the sexual assault and the RO at the time deferred rating PTSD from military sexual trauma." R. at
316, 1735.
127
R. at 2337-38.
128
R. at 2337.
129
R. at 2337, 3020, 3265.
130
R. at 2119-20, 3265.
131
R. at 3270.
132
R. at 3237-40.
133
R. at 3144-50.
134
R. at 3166.
135
R. at 2338.
136
Id.
137
R. at 2159.
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Case: 23-5171 Page: 22 of 23 Filed: 01/22/2026
In June 2017, the veteran filed a claim for her vaginal fissures. 138 In August 2017, VA
found that "[s]ervice connection for dyspareunia due to vaginal fissure has been established as
directly related to military service" but assigned a noncompensable rating.139 In January 2020, the
Board granted a 30% rating for the veteran's vaginal condition, to include dyspareunia and vaginal
fissure, manifested with symptoms not controlled by continuous treatment. 140 The Secretary
conceded error, and the Court remanded the case. 141 At additional examinations, the veteran
described her constant pain.142 She said that "it is difficult to have a relationship," when she was
married "it was painful to have sex," and she continued to experience serious physical problems
for which she did not "get any kind of relief."143
The Board Decision Should Be Vacated and the Question of SMC(k) for the Veteran's
Loss of Use of Her Vagina Should Be Remanded
As the Secretary asserts, the Board acknowledges that the vagina is a creative organ. 144
And the Board, in October 2022, acknowledged that the veteran's vaginal condition, to include
dyspareunia and vaginal fissure, constitutes a separately compensable disability "with the
symptoms not controlled by continuous treatment." 145 But the October 2022 Board did not
otherwise address whether the veteran had lost the use of her vagina, denying her claim for SMC(k)
"as a matter of law" and declaring that, therefore, "any factual questions pertaining to the Veteran's
alleged loss of use of the vagina are rendered moot."146 And the August 2023 Board chose criticism
over substantive consideration. In light of the evidence about the nature, extent, and duration of
the veteran's vaginal condition and the actual terms of subsection 1114(k) and § 3.350(a), the
138
R. at 2114-17.
139
R. at 1842.
140
R. at 1630-31.
141
R. at 1133-34.
142
R. at 374, 415.
143
R. at 740.
144
Secretary's Br. at 13; see, e.g., R. at 6 (using "creative organ (vagina)"), 8 (explicitly noting that the vagina is a
creative organ).
145
R. at 287, 292-93.
146
R. at 295.
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Case: 23-5171 Page: 23 of 23 Filed: 01/22/2026
August 2023 Board decision should be vacated and the matter remanded for a determination
whether the veteran has suffered loss of the use of her vagina.
Conclusion
The Board is right when it says that it "is not the case" that "each such loss" in subsection
1114(k) refers only to "one or more creative organs." 147 But the simple, inescapable, and
determinative fact is that "each such loss" plainly does refer to "one or more creative organs,"
which are listed first in the statute.148 And "$96 per month for each such loss or loss of use" is the
only measure set forth. As the Conference Agreement explained, under the pre-1967 law, when
the statute said "a creative organ," only one SMC(k) allowance could be paid. But the amended
law—changing it to "one or more creative organs"—"authorize[d] the payment of the additional
allowance for each such loss."149 That is a persuasive pairing that cannot be overcome by the
majority's embrace of the Board's choice to limit compensation to once per category. 150 If the
imaginative category baskets give rise to a glimmer of interpretive doubt, here, as in Barry, the
construction of subsection 1114(k) and § 3.350 argued by VA and adopted by the majority also
conflicts with the longstanding pro-veteran canon—"'that provisions for benefits to members of
the Armed Services are to be construed in the beneficiaries' favor'"151 because the most telling
indicators of congressional intent are the pro-veteran characteristics of the review scheme that
Congress created for the adjudication of veterans' benefits claims.152
In my view, the Court should not rubberstamp the Board's deeply flawed anti-veteran
interpretation of subsection 1114(k) to deny Ms. Westphal compensation for the service-connected
loss of the use of her vagina.153 I respectfully dissent.
147
R. at 9.
148
38 U.S.C. § 1114(k).
149
H.R. Rep. No. 90-554, at 32.
150
VA has lumped "female disorders" on forms, see R. at 2337, but (since 1967) the statute, regulation, and M21-1
have not been so indiscriminate or dismissive, making clear that the anatomical loss of the uterus essential for
procreation and the loss of use of the vagina for sexual intercourse merit SMC(k) at the specified rate, for each such
loss—until now.
151
Barry, 35 Vet.App. at 130 (Jaquith, J., dissenting in part) (quoting Henderson v. Shinseki, 562 U.S. 428, 441
(2011)).
152
Henderson, 562 U.S. at 440.
153
See Bufkin v. Collins, 604 U.S. 369, 391-98 (2025) (Jackson, J., dissenting) (observing that nondeferential review
of whether VA properly applied the law minimizes the risk that veterans will be denied benefits to which they are
entitled).
23