Citation Nr: 1242965 Decision Date: 12/17/12 Archive Date: 12/27/12 DOCKET NO. 09-24 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from March 1946 to May 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. The Veteran submitted additional evidence in June 2010 (a letter from his private physician) but specifically waived his right to have that evidence considered by the RO. See February 2012 waiver. The issue of entitlement to service connection for erectile dysfunction is inferred by the record, and is part and parcel of the claim for entitlement to special monthly compensation based on loss of use of a creative organ. Thus, the issues are as noted on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran is service-connected for a herniated right-sided L5-S1 lumbar disc, status post discectomy; the disability is rated as 60 percent disabling under the schedular criteria and rated as 100 percent disabling based on unemployability. 2. Due to his service-connected lumbar spine disability, the Veteran is unable to care for himself. 3. The Veteran's erectile dysfunction is etiologically related to his service-connected lumbar spine disability. 4. The Veteran's erectile dysfunction has necessitated the use of a penile prosthesis and is associated with psychological factors such that the impairment qualifies as loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2012). 2. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 3. The criteria for entitlement to special monthly compensation for the loss of use of a creative organ have been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.350 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Special Monthly Compensation- Aid & Attendance Special monthly compensation is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Factors to be considered in determining whether a Veteran requires such are the inability to perform activities of daily living (dressing, cooking, eating, attending to the wants of nature, cleaning, and personal hygiene), a need for assistance in adjusting orthopedic or prosthetic devices, and requiring care or assistance on a regular basis to protect oneself from the hazards or dangers of the daily environment. 38 C.F.R. § 3.352(a). The Veteran is currently service-connected for a herniated right-sided L5-S1 lumbar disc, status post discectomy, rated as 60 percent disabling under the schedular criteria and as 100 percent disabling based on unemployability. An August 2007 VA examiner, the Veteran's treating private physician (Dr. J.J.), and the Veteran's spouse have all opined that the Veteran is in need of the regular aid and attendance of another person to perform the activities of daily living and to protect him from the hazards of daily life. He cannot stand on his own or lift himself from a fallen position. His has memory loss and poor decision making. He cannot bathe himself, nor can he perform toileting activities, as he lacks coordination and has extreme weakness of the lower extremities. He is incontinent, and wears sanitary pads that must be changed by his wife several times throughout the day and night. While he leaves the premises of his house once a week, he can only do so with the help of his wife, as he is wheel-chair bound and can only ambulate 10 feet with the assistance of his walker, as well as his wife. There is no contrary lay or medical opinion of record. The August 2007 VA examiner diagnosed several disabilities in addition to the Veteran's service-connected lumbar spine disability, including Parkinson's disease and early onset Alzheimer's disease. While the examination report suggests that the Veteran's need for regular aid and attendance may be due to his nonservice-connected disabilities, the examiner did not provide an opinion addressing which disability was responsible for such need. Dr. J.J., however, in his June 2010 letter stated that the Veteran was currently bed-bound and required 100 percent assistance. He noted that since the initial in-service back injury, the Veteran had undergone three back surgeries, the last of which led to his urinary incontinence and inability to walk, rendering him wheel-chair bound. Dr. J.J. opined that while several factors led to the Veteran's condition, the primary factor was his progressive inability to move his back. The June 2010 letter from Dr. J.J. supports a grant of special monthly compensation based on a need for regular aid and attendance, as the Veteran's private physician indicated that such need was the result of the Veteran's service-connected lumbar spine disability, and that opinion is the most probative evidence concerning whether the Veteran's back disability is sufficient by itself to render him in need of the regular aid and attendance of another person. Accordingly, the Board finds that entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is warranted. Service Connection - Erectile Dysfunction The Veteran contends that his erectile dysfunction is due to his service-connected lumbar spine disability. He further contends that his erectile dysfunction symptoms have progressively worsened since each surgery for his back. The evidence does not show, nor does the Veteran allege, that his erectile dysfunction disorder was incurred in service. In a November 1987 rating decision, service connection was granted and an initial 10 percent rating assigned for a lumbar strain, effective from April 1987. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Post-service records include a July 2001 VA examination report which indicates a diagnosis of erectile dysfunction. A September 2001 VA outpatient treatment record notes a diagnosis of erectile dysfunction, possibly secondary to lumbar disease. Subsequent VA outpatient treatment records dated from August 2003 to March 2007 include active problem lists which note diagnoses of erectile dysfunction. The Veteran underwent a VA examination in August 2007 which resulted in a diagnosis of erectile dysfunction. The examiner noted that the Veteran successfully achieved erection for vaginal penetration with his penile implant. The examiner opined that the Veteran's erectile dysfunction was less likely than not secondary to his history of lumbar surgeries. In support of the opinion, the examiner noted that although the Veteran reported that his erectile dysfunction symptoms began shortly following lumbar surgery, the procedure performed did not involve possible interference with the nerve enervation required for a man to perpetuate an erection. In an October 2007 letter, Dr. K.R., the Veteran's private orthopedic surgeon, opined that it was more likely than not that the Veteran's erectile dysfunction was associated with his back surgeries and his medications. In providing the opinion, Dr. K.R. stated that he had treated the Veteran since November 2002, and that since then, the Veteran had tried various medications (which he listed), to include Viagra. He further noted that the Veteran underwent spinal surgery in April 2000, February 2001, and January 2003, indicating that he performed the January 2003 surgery. Dr. K.R. reported that prior to his original surgery, the Veteran had difficulty with sex; however, such difficulty was associated with pain. He further reported that after his first surgery, the Veteran started to take Viagra, but he was unable to get a significant erection with the medication. Dr. K.R. stated that subsequent to the Veteran's third surgery in 2003, the Veteran was not able to get an erection at all, and therefore got a penile prosthesis. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429 (1995). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). The Board must weigh the VA and private medical opinions of record to determine which is the most probative to the question of whether the Veteran's erectile dysfunction is related to his service-connected lumbar spine disability. The October 2007 private opinion letter from K.R., an orthopedic surgeon, supports the Veteran's claim. K.R. has treated the Veteran since 2002 and performed the Veteran's third back surgery in 2003. K.R. did not review the Veteran's service treatment records, nor did he review his VA outpatient treatment records. K.R., however, provided a detailed history of the Veteran's erectile dysfunction symptomatology, noting a chronology of his back pain and difficulty with sex prior to the first surgery; his use of Viagra subsequent to his second surgery in 2001, although the medication was not successful, as the Veteran was unable to get a significant erection with the medication; and that subsequent to the third surgery, the Veteran was not able to get an erection at all, and therefore got a penile prosthesis. K.R concluded that the Veteran's current erectile dysfunction was more likely than not associated with his back surgeries and his medications. The August 2007 VA opinion does not support the Veteran's claim. The examiner reviewed the Veteran's claims file, and noted that the Veteran successfully achieved erection for vaginal penetration with his penile implant. The examiner did not provide an extensive history of the Veteran's erectile dysfunction symptomatology, nor did he note that the Veteran's symptoms progressively worsened after each lumbar spine surgery he underwent. The examiner concluded that the Veteran's current erectile dysfunction was less likely than not secondary to his history of lumbar surgery with required laminectomy and discectomy. In providing the opinion, the examiner explained that the procedure performed did not involve possible interference with the nerve enervation required for a man to perpetuate an erection. Following a thorough consideration of the aforementioned conflicting opinions, the Board finds the October 2007 private opinion, and the August 2007 VA opinion to be equally probative. The positive opinion was provided by the private orthopedic surgeon, K.R.; the negative opinion by the VA examiner. The evidence is at least in relative equipoise. Affording the Veteran the benefit of the doubt, service connection for erectile dysfunction is warranted. Special Monthly Compensation - Loss of Use of a Creative Organ VA provides special monthly compensation if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k). Furthermore, entitlement to special monthly compensation based on loss of use of a creative organ can be granted based on erectile dysfunction. The Board recognizes that the Veteran has a penile implant but has determined that the psychological factors associated with the disability, even with the implant, justify a grant of special monthly compensation for loss of use of a creative organ. (CONTINUED ON NEXT PAGE) ORDER Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is granted, subject to the criteria applicable to the payment of monetary benefits. Service connection for erectile dysfunction is granted. Entitlement to special monthly compensation based on loss of use of a creative organ is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs