Citation Nr: 0304600 Decision Date: 03/13/03 Archive Date: 03/24/03 DOCKET NO. 01-10 211 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had over seven years of active service, including the verified periods from December 1968 to June 1970, and from January 1975 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an RO rating decision of September 1998, which, in pertinent part, denied special monthly compensation based on loss of use of a creative organ. In a February 2000 statement, the veteran requested a Board hearing; however, in view of the following decision, which grants the benefit sought, a hearing is not necessary. FINDING OF FACT The veteran is unable to achieve an erection without a pump, and unable to engage in intercourse due to a service- connected back disability. CONCLUSION OF LAW The criteria for special monthly compensation based on loss of use of a creative organ have been met. 38 U.S.C.A. § 1114 (West 1991 & Supp. 2002); 38 C.F.R. § 3.350 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION A. Background The veteran is service-connected for numerous disabilities including post-traumatic stress disorder (PTSD), evaluated 100 percent disabling, intervertebral disc syndrome, evaluated 60 percent disabling, and urinary incontinence due to intervertebral disc disease, evaluated 60 percent disabling. He is in receipt of special monthly compensation under 38 U.S.C.A. § 1114(s) for disabilities separately rated 100 percent plus 60 percent. In August 1996, the veteran's wife wrote that although the veteran had received an external pump, enabling him to have an erection, he was unable to engage in sexual relations due to back and leg pain. On a VA examination in November 1996, the veteran's complaints included increasing back pain, as well as pain in the testicles and penis. He was wheelchair bound due to his back disability. On a VA neurological examination in June 1997, the veteran complained of impotence, and the findings included impotence. On a neurological examination in April 1998, the veteran' complaints included sexual dysfunction, testicular pain, and numbness in the penis. He had had four prior lumbar laminectomies with no improvement of his symptoms. The diagnoses included impotence secondary to back injury. On a VA genitourinary examination in May 1998, the veteran said he had been having problems with impotence since 1991, and that he had had complete impotence since 1992. He said that he had had a pump inserted in 1993. The veteran was also noted to be incontinent of urine. He had undergone a vasectomy in 1975. The examiner noted that vaginal penetration and ejaculation were possible. The veteran had a pump, which was rarely effective in allowing intercourse, secondary to back pain after intercourse. On examination, the testicles were normal in size. The diagnosis was impotence secondary to laminectomy and spinal stenosis. B. Analysis The file shows that by RO correspondence, the rating decision, and the statement of the case, the veteran has been informed of the evidence necessary to substantiate his claim, and of his and VA's respective obligations to obtain different types of evidence. A VA examination was provided. The Board finds that the notice and duty to assist provisions of the law have been met. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet.App. 183 (2002). Special monthly compensation may be paid for loss of use of a creative organ, as a result of service-connected disability. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Although the term "creative organ" is not defined in the law or regulations, the Office of General Counsel has held that a "creative organ," as used in 38 U.S.C.A. § 1114(k), refers to a procreative, or reproductive, organ. VAOPGCPREC 2-00. In addition, where a veteran has loss of erectile power from service-connected causes, he is also entitled to special monthly compensation for loss of use of a creative organ. VA Adjudication Procedure Manual, M21-1, Part VI, 11.25 (Change 85, April 4, 2002); see 38 C.F.R. § 4.115b, Code 7522. Therefore, although not specifically identified as a "creative organ" in 38 U.S.C.A. § 1114(k) or 38 C.F.R. § 3.350, other legal authority clearly establishes that the penis is a creative organ, for purposes of entitlement to special monthly compensation. The Board also notes that the veteran has undergone a vasectomy. With respect to whether this precludes special monthly compensation based on loss of use of a creative organ, it is well-established non-service-connected loss of use of a creative organ (i.e., sterilization) does not bar special monthly compensation for anatomical loss of a creative organ. VAOPGCPREC 93-90; VAOPGCPREC 5-89. Neither opinion explicitly addressed the matter of whether non- service-connected loss of use of one creative organ bars special monthly compensation based on loss of use of another creative organ, rather than anatomical loss (although VAOPGCPREC 5-89 suggests a distinction may be drawn). However, the statute provides that "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, . . . [special monthly compensation shall be paid] for each such loss or loss of use . . . and in the event the veteran has suffered one or more of the disabilities heretofore specified in this subsection, . . . the rate of compensation shall be increased . . . for each such loss or loss of use, . . ." 38 U.S.C.A. § 1114(k). Thus, the law provides that special monthly compensation is to be provided for loss of use of any creative organ, not merely loss of reproductive capacity. By the use of the term "one or more" creative organs, it is clear that only one creative organ need be affected. Therefore, if a veteran has loss of use of any creative organ, the presence of non-service- connected loss of use of another creative organ is irrelevant. Accordingly, the Board finds that the preexisting vasectomy does not bar entitlement to loss of use of a creative organ due to impotence. As to whether the veteran is impotent, the VA examination in May 1998 indicated that while the veteran was able to achieve an erection with the use of a pump, resulting back pain effectively precluded intercourse, and the diagnosis was impotence due to the service-connected back disability. Examinations in April 1998 and June 1997 also diagnosed impotence, and the veteran and his wife have both stated he is essentially impotent, due to back pain. (He is wheelchair bound due to his back disability as well.) "The purpose of the statutory award for loss or loss of use of a creative organ is to account for psychological factors, S. Rep. No. 1681, 82d Cong., 2d Sess. 2 (1952); as well as the loss of physical integrity, H.R. Rep. No. 6, 89th Cong, 1st Sess., 4 (1965)." VAOPGCPREC 5-89. Thus, the fact that he is technically capable of achieving an erection, with the aid of an assistive device, does not rule out special monthly compensation, where he is, in essence, functionally impotent. In the judgment of the Board, there is a reasonable doubt that the veteran currently has loss of use of a creative organ, due to impotence resulting from his service-connected back disability. Such doubt is resolved in his favor. 38 U.S.C.A. § 5107(b). The Board concludes that the veteran is entitled to special monthly compensation based on loss of use of a creative organ, and that benefit is granted. ORDER Special monthly compensation based on loss of use of a creative organ is granted. L. W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.