Citation Nr: 1104647 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 06-00 333A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ. 2. Entitlement to a compensable disability rating for erectile dysfunction. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from February to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June November 2005 and November 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In his January 2008 substantive appeal the Veteran requested a hearing before a member of the Board. He withdrew that request in a writing dated in July 2008. In a March 2009 decision, the Board denied the Veteran's appeal as to entitlement to SMC for loss of use of a creative organ. He appealed that decision to the U.S. Court of Appeals for Veterans Claims (Veterans Court). In May 2010, the Veterans Court granted a joint motion for partial remand of the Veteran and the Secretary of Veterans' Affairs (the Parties), vacated that part of the March 2009 decision in which the Board denied entitlement to SMC for loss of use of a creative organ, and remanded that issue for compliance with the instructions in the joint motion. The issue of entitlement to a compensable disability rating for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have loss of use of a creative organ. CONCLUSION OF LAW The criteria for entitlement to SMC for loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.350(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his erectile dysfunction resulting from treatment for service-connected psychiatric disease with Sertraline (Zoloft) entitles him to SMC for loss of use of a creative organ. Subject to certain limitations, SMC is payable under 38 U.S.C.A. § 1114(k) for each anatomical loss of or the loss of use of one or more creative organs. 38 C.F.R. § 3.350(a). Regulatory definitions for loss of or loss of use of a creative organ are as follows: (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. (ii) When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. (iii) Loss or loss of use traceable to an elective operation performed subsequent to service, will not establish entitlement to the benefit. If, however, the operation after discharge was required for the correction of a specific injury caused by a preceding operation in service, it will support authorization of the benefit. When the existence of disability is established meeting the above requirements for nonfunctioning testicle due to operation after service, resulting in loss of use, the benefit may be granted even though the operation is one of election. An operation is not considered to be one of election where it is advised on sound medical judgment for the relief of a pathological condition or to prevent possible future pathological consequences. (iv) Atrophy resulting from mumps followed by orchitis in service is service connected. Since atrophy is usually perceptible within 1 to 6 months after infection subsides, an examination more than 6 months after the subsidence of orchitis demonstrating a normal genitourinary system will be considered in determining rebuttal of service incurrence of atrophy later demonstrated. Mumps not followed by orchitis in service will not suffice as the antecedent cause of subsequent atrophy for the purpose of authorizing the benefit 38 C.F.R. § 3.350 During the course of the appeal, the Veteran has not alleged either of his testicles are absent, that one of his testicles is smaller or of different consistency than the other, or that he lacks sperm production; i.e., that he is sterile. He has not alleged that he underwent any operation involving either testicle. Rather, the Veteran's claim is that treatment of his service-connected psychiatric disease with the drug Sertraline has caused a change in his libido. His claim is best understood by reviewing his statements: In an August 2005 writing the Veteran reported that he had a normal sex life with his spouse from 1971 until 1995, with once, twice, or more sexual relations per week. He reported that since he was placed on Zoloft in 1995 he has been successful in sexual relations once or twice every six months. He reported that this is the only medication that effectively addresses his psychiatric symptoms. He reported that as of August 2005 he still had "sexual disinterest and dysfunction." In an October 2007 writing the Veteran again clarified his symptoms, stating as follows (original all in upper case): My sexual disfunction (sic) is not only loss of use, but also loss of desire. Every time I think it's going to work, it's just disapointment (sic)." In October 2007 the Veteran underwent VA examination by a physician. The Veteran reported that onset of his erectile dysfunction was in 1995 when he began taking Zoloft. His complaint is basically inability to have an ejaculation which came on in 1995 and has progressively increased up to the present time. He can get an erection, achieve penetration, and he now has what he describes as a total anesthetic sense of ejaculation that is there is no sense of satisfaction or fulfillment, no pleasure associated with it. . . . his ability to ejaculate diminished to the point of vanishing . . . [he] is again confirming that he can maintain an erection for penetration but this occurs only 2 times every 2-3 months. Physical examination revealed no nodules, a normal phallus, and testicular size was 3 by 4 centimeters bilaterally. Diagnosis was erectile dysfunction manifested solely by impaired ejaculatory response associated with institution of sertraline. Also of record is a letter from his private physician, "L.L.," D.O., stating that the Veteran is treated for his depression with Zoloft and that a documented side effect of Zoloft is sexual dysfunction. The Veteran's statements, along with the examination report, establish that the definitions for loss of or loss of use of a creative organ are not met in this case. He does not claim to have loss of any creative organ. He has not claimed to have loss of use of one or both testicles. The case does not involve any operations, wounds, trauma, or disease of his testicles or affecting his testicles. The Veteran did not allege and he has not been found on examination to have any physical differences between the testicles. As to the definition involving a biopsy to show loss of use of one testicle, by its plain language this has to do with the absence of spermatozoa. It is common lay knowledge that the absence of sperm means that reproduction cannot take place and, hence, the absence of sperm would mean that there has been the loss of use of a creative organ. That being said, this has never been the basis for the Veteran's claim for SMC. His claim amounts to an assertion that he has difficulty ejaculating and that the Zoloft results in an "anesthetic" effect and therefore he does not enjoy ejaculation. He has asserted that he can achieve ejaculation once every two months. Thus, he has not lost the ability to ejaculate. He has not lost the ability to obtain and sustain an erection. There is nothing that he has stated that would lead to a conclusion that he may have an absence of sperm. Again, it is common knowledge that one may have absence of sperm and thus be sterile from, for example a vasectomy, but still be ejaculate and not experience any anesthetic effect. Here the basis for the Veteran's claim has nothing to do with lack of sperm production; there is no competent evidence of record that Zoloft interferes with sperm production. In a September 2010 letter, the Veteran's representative contended as follows: [t]he examiner did not address the question of the need for a biopsy to determine whether the veteran's impaired ejaculatory response was due to lack of spermatozoa, as contemplated by 38 C.F.R. § 3.350(a)(1)(i(c). Because the veteran indicated that his ability to ejaculate has vanished, such failure rendered the October 2007 examiner's report inadequate." This argument is totally without merit. 38 C.F.R. § 3.350(a)(1)(i)(c) does not contemplate impaired ejaculatory response due to lack of spermatozoa. By its unambiguous language the absence of spermatozoa establishes the loss of use of one testicle, not impaired ejaculatory response. The obvious meaning of the definition is to establish sterility. As noted above, sterility is not the same thing as impaired ejaculatory response. Moreover, the examiner did address the need for a biopsy when he stated that that the Veteran has "erectile dysfunction manifested solely by impaired ejaculatory response." The Veteran's representative has stated no basis for her assertion that impaired ejaculatory response could be related to lack of spermatozoa. An opinion that Zoloft interferes with sperm production is the type of opinion derived from research by scientists and is not an opinion that can be competently offered by a non-expert. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (referring to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) to explain when a non-expert etiology opinion is competent); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting in footnote 4 that the complexity of a question is important in determining whether a non-expert opinion is competent evidence). The Veteran's representative is not an expert. There is no evidence of record that Zoloft causes absence of spermatozoa. VA is not required to afford the Veteran another examination on the basis of an unsubstantiated theory. As the effect of Zoloft is the only basis for the Veteran's erectile dysfunction, a discussion between the Veteran and a medical professional as to a biopsy to determine the presence of spermatozoa simply makes no sense. Also of note is that the Veteran's representative misstates the Veteran's report as to his ability to ejaculate. Contrary to the representative's statement, the Veteran did not state that his ability to ejaculate had vanished. Rather, the examiner noted that the Veteran reported that his ability to ejaculate had diminished to the point of vanishing. This is consistent with the Veteran's reports of functioning once or twice every six months. By the Veteran's own account he is able to achieve an erection, achieve penetration, and ejaculate. That he can do so only once or twice in a six month period and that he does not experience pleasure does not equate to "loss of use of a creative organ". As he does have use of a creative organ, the appeal as to entitlement to SMC for loss of use of a creative organ must be denied. There is no reasonable doubt to be resolved in this matter. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service- connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the VCAA duty to notify with regard to the claim for SMC was satisfied by way of a letter sent to the Veteran in March 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and assisted the Veteran in obtaining records from Dr. L.L. The Veteran was afforded a VA medical examination October 2007. As explained above, this examination was adequate; the examiner sufficiently addressed all of the avenues for showing loss of use that are specified in 38 C.F.R. § 3.350(a) in his statement that the Veteran's erectile dysfunction is manifested soley by impaired ejaculatory response associated with Sertraline therapy. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied as to the issue of entitlement to SMC for loss of use of a creative organ. REMAND In a rating decision dated November 30, 2005, the RO granted service connection for erectile dysfunction and assigned a non- compensable disability rating. The RO mailed that decision to the Veteran on December 9, 2005. On December 8, 2006, the RO received several documents by fax. These included appointment of the Veteran's current representative via a VA FORM 21-22a, signed by the Veteran and his representative earlier that month. This also included a letter that his newly appointed representative identified as a formal notice of disagreement with the December 9, 2005 rating decision. She explained that the Veteran contended that he is entitled to a compensable disability rating for his erectile dysfunction and requested that the RO issue a statement of the case. An appeal to the Board of an RO decision is initiated by a notice of disagreement received by the RO within one year of the date that VA mails notice of the decision. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. It must be a written communication from the claimant or his or her representative expressing dissatisfaction with an adjudicate determination by the agency of original jurisdiction (AOJ - the RO in this case) and a desire to contest the result. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.201. The document dated as sent December 8, 2006 constitutes a timely notice of disagreement with the rating assigned for erectile dysfunction in the RO decision mailed to the Veteran December 9, 2005. This confers jurisdiction on the Board. 38 U.S.C.A. § 7105(a). The record is absent for evidence that the RO provided the Veteran with a statement of the case as to this issue. Hence, this issue must be remanded to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a Statement of the Case as to the Veteran's disagreement with the noncompensable disability rating assigned for his erectile dysfunction in the decision mailed to the Veteran in December 2005. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs