Citation Nr: 0306486 Decision Date: 04/03/03 Archive Date: 04/10/03 DOCKET NO. 99-19 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to special monthly compensation based on the loss of use of a creative organ subsequent to December 21, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from May 1973 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in February 2001, at which time it was remanded for additional development. The case is now before the Board for appellate review. By a rating action in October 2002, the RO granted the veteran special monthly compensation based on the loss of use of a creative organ, effective from March 21, 1994 to December 21, 1998. Therefore the issue before the Board has been redefined as stated on the title page. FINDING OF FACT Subsequent to December 21, 1998, the veteran is not shown to have suffered from impotence secondary to medication prescribed for service-connected hypertension. CONCLUSION OF LAW Special monthly compensation based on the loss of use of a creative organ subsequent to December 21, 1998 is not warranted. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background In a rating decision of April 1994, the RO granted service connection for hypertension. Thereinafter, in May 1994, the veteran filed a claim alleging that the hypertensive medication was causing him to be impotent. By a rating action in October 2002, the RO granted the veteran special monthly compensation based on the loss of use of a creative organ, effective from March 21, 1994 to December 21, 1998. During the course of VA outpatient treatment in June 1998, it was noted that the veteran had been asking about Viagra. Reportedly, he had been using a pump for impotence. The clinical assessment was of blood pressure adequately controlled with present medications; and continued impotence, asking about Viagra. At the time of evaluation, he was prescribed Viagra at the rate of four tabs per month. At the time of VA outpatient treatment on December 21, 1998, it was noted that the veteran had previously been using a pump, though he was now on Viagra, with success. Further noted was that his current blood pressure medication was appropriate and required for blood pressure therapy. According to his physician, his blood pressure control remained incomplete. Accordingly, no change was recommended in the veteran's antihypertensive medication. During a March 1999 VA genitourinary examination, the veteran related that four months earlier, he had been given a prescription for Viagra, and was able to have normal intercourse 4 times a month. He was content with this level of activity. He was also afforded a VA examination to evaluate his hypertension. He was on two medications for hypertension, and was being monitored at the VA outpatient clinic. The hypertension was under good control. On VA genitourinary examination in March 2002, it was noted that the veteran's claims folder was available, and had been reviewed "in detail." That review revealed that the first mention of erectile dysfunction in the official record was in 1994. The veteran, however, stated that he had noticed problems with erections in 1992, when he was first placed on antihypertensive medication. Reportedly, in 1995, the veteran was given a vacuum pump for use prior to intercourse, which he was "ashamed to use." Accordingly, the veteran was started on Viagra in 1998, and was presently able to have effective intercourse once a week, or sometimes, every other week. According to the veteran, he was taking three medications for hypertension. When further questioned, the veteran stated that he had never mentioned his problem with erections prior to 1994, because he felt that, given his age, this problem would "probably disappear." However, in the opinion of the examiner, the veteran's mild erectile problems, though relieved somewhat by medication, were the result of antihypertensive medication complicated by depression. These conditions were service related, with the result that it was at least as likely as not that the veteran's impotence secondary to medication and mild depression was the result of post-traumatic stress disorder or medication used to treat his hypertension. Analysis At the outset, the Board wishes to make it clear that it has given due consideration to the provisions of the recently- passed Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100-5126 (2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002), as those provisions redefine the obligations of the VA with respect to the duty to assist, and the enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. However, in the case at hand, it is clear that the VA has met its "duty to assist" the veteran in the development of all facts pertinent to his claim. To that end, in correspondence of August 2001, and during the course of an October 2002 rating decision, the veteran was informed of the VA's obligations under the new Act, and given the opportunity to provide information necessary to obtain any evidence which had not already been obtained. Because no additional evidence has been identified by the veteran as being available but absent from the record, the Board finds that any failure on the part of the VA to further notify the veteran what evidence would be secured by the VA, and what evidence would be secured by the veteran, is harmless. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board is of the opinion that no further duty to assist the veteran exists in this case. Special monthly compensation under 38 U.S.C.A. § 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia, with constant inability to communicate by speech or, in the case of a woman veteran, the anatomical loss of one or both breasts (including loss by mastectomy). (1)(i) 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. Loss of use of one testicle will be established when examination by a board finds that: (a) the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) if neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist, and accepted by the veteran, establishes the absence of spermatozoa. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2002). Though not specifically mentioned by regulation, complete impotence constitutes another example of loss of use of a creative organ. In the present case, VA has recognized that from March 21, 1994, to December 21, 1998, the veteran suffered from complete impotence, apparently the result of medication for service-connected hypertension. While on VA genitourinary examination in October 1996, the veteran stated that his impotence had begun about three years earlier (placing its inception around or about October of 1993), on more than one occasion, the veteran has clearly indicated that his impotence began in 1994, and available medical records do not reflect any complaints prior to March 21, 1994. In any case, it is clear that, with the use of Viagra in December 1998, the veteran's sexual function returned to normal, and this level has apparently been maintained, as evidenced by subsequent outpatient treatment records and examination reports. The veteran and his representative argue that continued special monthly compensation is warranted based on the fact that the veteran's "potency" has been maintained by "artificial" means, that is, the use of medication (Viagra). However, the fact remains that the veteran no longer suffers from complete impotence sufficient to warrant the assignment of the additional benefit requested. Accordingly, special monthly compensation based on the loss of use of a creative organ subsequent to December 21, 1998 is not warranted. ORDER Special monthly compensation based on the loss of use of a creative organ subsequent to December 21, 1998 is denied. ____________________________________________ RENEE M. PELLETIER Veterans Law Judge, 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.