Citation Nr: 0717935	
Decision Date: 06/14/07    Archive Date: 06/26/07	

DOCKET NO.  02-00 810	)	DATE
	)
	RECONSIDERATION	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUE

Entitlement to special monthly compensation (SMC) for loss of 
use of a creative organ.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

W. L. Pine, Counsel


INTRODUCTION

The veteran had active military service from September 1964 
to September 1968.

This appeal is from a November 2002 rating decision of the 
Department of Veterans Affairs (VA) Columbia, South Carolina, 
Regional Office (RO).  The appeal arose initially from an 
April 2001 rating decision.  The instant claim is inferred 
from the award of service connection for impotence rated as 
loss of erectile power.  See 38 C.F.R. § 4115b, Diagnostic 
Code 7522 note 1 (2006); Akles v. Derwinski, 1 Vet. App. 118 
(1991) (VA must infer claim for special monthly compensation 
from request for increased compensation involving a creative 
organ); see also AB v. Brown, 6 Vet. App. 35, 38 (1993) (VA 
must presume claim is for maximum benefits allowed by law and 
regulation).

By Order dated in October 2006, a Deputy Vice Chairman of the 
Board ordered reconsideration of the Board's April 4, 2004 
decision which in part denied 
the benefit currently under review, by an expanded panel of 
the Board.  See 38 U.S.C.A. §§ 7103, 7104 (West 2002); 
38 C.F.R. §§ 20.904, 20.102(b), 20.1001 (2006); Mayer v. 
Brown, 37 F.3d, 618, 619-20 (Fed. Cir. 1994).  


FINDINGS OF FACT

1.  The veteran has service-connected erectile dysfunction 
with impotence.

2.  The veteran's erectile dysfunction results in the loss of 
use of his penis as a creative organ.  


CONCLUSION OF LAW

The criteria for special monthly compensation based on loss 
of use of a creative organ are met. 38 U.S.C.A. §§ 114(k), 
1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.156 (a), 
3.350(a) (2006).  
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The record raises the veteran's entitlement to special 
monthly compensation based upon loss of use of a creative 
organ. He is diagnosed with erectile dysfunction associated 
with his service-connected diabetes mellitus.  It is service 
connected as impotence and rated as loss of erectile power.  
See 38 C.F.R. §§ 4.115b, Diagnostic Code 7522 (2006).  The 
diagnostic code mandates review of disabilities rated under 
that code for entitlement to special monthly compensation, 
38 C.F.R. § 3.350.  Id.  note 1.

Under 38 U.S.C.A. § 1114(k), if a veteran, as the result of 
service-connected disability, has suffered the anatomical 
loss or loss of use of one or more creative organs, he shall 
receive a rate of compensation as set by statute, independent 
of any other compensation based upon service connection.

The claims folder contains medical records including an April 
1998 notation of use of Viagra.  On VA genitourinary 
examination in August 2001, the veteran told the compensation 
examiner of a three-year history of impotence and that his 
private primary physician had advised him against continued 
use of Viagra because of his many complications of diabetes.  
The veteran mentioned his consideration of a penile implant.  
The examiner diagnosed impotence, which was likely related to 
diabetic neuropathy.  On VA Compensation examination in 
November 2003, the examiner noted the veteran could not 
obtain an erection and that he took no medication for 
erectile dysfunction.  The examiner diagnosed erectile 
dysfunction.

As noted above, VA is required by applicable regulation to 
consider the veteran's potential entitlement to special 
monthly compensation. In relevant part, 38 C.F.R. 
§ 3.350(a)(1)(i) provides that "[l]oss 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."

There are two material questions in this case.  First, 
whether the penis is an "other creative organ" within the 
meaning of 38 U.S.C.A. § 114(k) and 38 C.F.R. 
§ 3.350(a)(1)(i) (2006)?  Second, if so, is erectile 
dysfunction such a loss of use?  
The penis is not specifically named among the organs listed 
in the regulation implementing special monthly compensation 
for loss of a creative organ.  38 C.F.R. § 3.350 (a)(1) 
(2006).  However, the regulation refers to "other" creative 
organs than those listed, thus it is not an exclusive list.  

The penis is defined, in part, as "the male organ of 
copulation." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1252 
(27th Ed. 1988).  The various organs in a male that are 
concerned with reproduction include the testis, epididymis, 
ductus deferens, seminal vesicle, ejaculatory duct, prostate, 
bulbourethral gland, and penis.  Id. at 1189 (definition of 
"organa genitale masculina interna").

Additional support for the premise that the penis is a 
creative organ is found at 38 C.F.R. § 4.115(b), Diagnostic 
Code 7522 (2006), which rates deformity of the penis with 
loss of erectile power.  A footnote to Diagnostic Code 7522 
indicates that the disability is to be reviewed for 
entitlement to special monthly compensation under 38 C.F.R. 
§ 3.350.

Given this statutory and regulatory background, and the fact 
that there are no specific provisions mandating otherwise, 
the Board finds that the penis is a creative organ under the 
provisions of 38 U.S.C.A. § 114(k) and 38 C.F.R. § 3.350(a).  
Boyer v. West, 210 F.3d 1351 (Fed.Cir. 2000) (observing that 
where there is ambiguity in a veteran's - related statute 
interpretive doubt is to be resolved in 
the veteran's favor, in the absence of a clear, contrary 
meaning of the provision.).

With regard to the question of whether such erectile 
dysfunction is, or is tantamount to a loss of use of a 
creative organ, it appears from the veteran's consideration 
of a penile implant and his report of medical 
contraindication for medical treatment of erectile 
dysfunction that the loss of erectile power is persistent.

It is immaterial that an invasive surgical procedure might 
enable him to procreate.  By analogy, applicable regulation 
provides that loss of use of an extremity, or part of an 
extremity, exists when the function retained is equal to the 
function of an amputation stump with prosthesis fixed at the 
elective level of amputation.  See 38 C.F.R. § 3.350 
(a)(2)(2006).  Nothing in the regulation requires the 
claimant endure amputation and placement of a prosthesis to 
qualify for special monthly compensation for loss of use of a 
hand or foot.  

Similarly, it would be inconsistent to conclude the veteran's 
erectile dysfunction was not a loss of use of the penis for 
procreation because invasive surgery might render the penis 
functional for procreation.  By analogy, the veteran's 
erectile dysfunction renders his penis less useful as a 
creative organ than a prosthesis would be.  The veteran's 
erectile dysfunction amounts to loss of use of a creative 
organ.

In sum, under 38 U.S.C.A. § 114(k) and 38 C.F.R. § 3.350(a), 
special monthly compensation may be paid for loss of use of a 
creative organ.  Loss of a creative organ will be shown by 
acquired absence of one or both testicles (other than 
undescended testicles) or other creative organ.  (Emphasis 
added).  38 C.F.R. § 3.350(a)(1)(i) (2006).  The remainder of 
the regulation provides the criteria for finding loss of use 
of a creative organ due to testicular atrophy or due to 
nonproduction of spermatozoa proven by biopsy.  Nothing in 
the regulation defines the testicles as the sole male 
creative organ.  Such a construction does not harmonize the 
schedule for rating disabilities, which provides for separate 
ratings of loss of erectile power of the penis and for 
atrophy of the testes as separate organs, either being as a 
basis for consideration of special monthly compensation. 
Although two criteria are required for compensable rating 
under Diagnostic Code 7522, nothing in section 4.115b 
precludes special monthly compensation for loss of use of a 
creative organ to instances of loss of erectile dysfunction 
coincident with penile deformity.  

Applying the law and regulation governing special monthly 
compensation for loss of use of a creative organ to the facts 
in this case, the reasonable conclusion is that the veteran 
is entitled to special monthly compensation for loss of use 
of a creative organ. 38 U.S.C.A. § 1114(k) (West 2002); 
38 C.F.R. § 3.350(a) (2006).

Whereas this decision awards the complete benefit sought is 
moot whether VA discharged its notice and assistance duties.  
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 
(2006).  


ORDER

Special monthly compensation for loss of use of a creative is 
granted, subject to the regulations governing payment of 
monetary benefits.



			
                   Vito A. Clementi		Harvey P. 
Roberts
	Veterans Law Judge 		Veterans Law Judge
	Board of Veterans' Appeals		Board of Veterans' Appeals



	                         
___________________________________________
Constance B. Tobias
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs