Citation Nr: 0812588	
Decision Date: 04/16/08    Archive Date: 05/01/08

DOCKET NO.  05-14 292A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The veteran served on active duty from October 1943 to 
November 1945, and from January 1951 to January 1952.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a January 2004 rating decision by the Denver, 
Colorado Regional Office (RO) of the United States Department 
of Veterans Affairs (VA).  In that decision, the RO denied 
special monthly compensation for loss of use of a creative 
organ.

Pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 
20.900(c) (2007), the undersigned Veterans Law Judge has 
granted a motion for advancement on the docket in this case.  


FINDING OF FACT

The veteran's right testicle, with service-connected shrapnel 
wound, is softer in consistency and smaller than the left 
testicle, but is more than half the size of the left 
testicle.


CONCLUSION OF LAW

The veteran has not lost the use of his right testicle; 
therefore he is not entitled to special monthly compensation 
based on service-connected disability affecting that 
testicle.  38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. 
§ 3.350(a)(1)(i)(a)-(c) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Special Monthly Compensation

The veteran is seeking special monthly compensation for the 
loss of use of his right testicle.  During service, the 
veteran sustained shrapnel wounds to multiple areas.  The 
disabilities for which VA has established service connection 
include residuals of a shrapnel wound of the right testicle, 
with slight atrophy and a retained foreign body.  The RO 
assigned a 0 percent, noncompensable disability rating for 
that disorder.

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).  Loss of use of one testicle 
is established when: 

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 C.F.R. § 3.350(a)(1)(i).

The veteran has had VA genitourinary examinations that have 
included measurement of the testicles.  In December 1999, 
ultrasound showed that the right testicle measured 3.8 
centimeters (cm) by 1.8 cm by 1.6 cm, while the left testicle 
measured 3.9 cm by 2.2 cm by 2.4 cm.  In May 2003, an 
examiner indicated that the veteran's right testicle was 
smaller than his left by an estimated one third.  

On VA examination in March 2006, ultrasound revealed that the 
right testicle measured 3.7 cm by 2.3 cm by 3.7 cm, while the 
left testicle measured 3.8 cm by 2.1 cm by 3.9 cm.  On VA 
examination in July 2007, both testicles were tender.  The 
right testicle had a soft consistency.  On ultrasound, the 
right testicle measured 3.7 cm by 2.3 cm by 3.7 cm, while the 
left testicle measured 3.8 cm by 2.1 cm by 3.9 cm.

In a June 2004 statement, the veteran asserted that he was 
impotent in part due to the shrapnel wound to his right 
testicle.  In February 2008, the veteran had a 
videoconference hearing before the undersigned Veterans Law 
Judge.  He reported that he had episodes of swelling of the 
testicles.  He stated that sometimes he could feel the 
retained shrapnel fragment near the right testicle.

On ultrasound measurements, the veteran's right testicle has 
been smaller than the left, but has been more than one third 
the size of the left.  In 2007, the right testicle was noted 
to have a soft consistency, but it was more than half the 
size of the left.  Physicians have not recommended a biopsy 
to determine whether spermatozoa are present.  The size and 
other characteristics of the right testicle do not meet the 
criteria under 38 C.F.R. § 3.350 to be considered loss of use 
of that testicle.  As the preponderance of the evidence 
indicates that the veteran has not lost the use of his right 
testicle, he is not entitled to special monthly compensation 
based on the service-connected disorder of that testicle.

Notice and Assistance

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a).  VA must request that the 
claimant provide any evidence in the claimant's possession 
that pertains to a claim. 38 C.F.R. § 3.159.  The notice must 
be provided to a claimant before the initial unfavorable 
adjudication by the RO.  Pelegrini v. Principi, 18 Vet. 
App.112 (2004).

With respect to the claim for special monthly compensation 
based on the loss of use of a creative organ, the RO provided 
the appellant with notice in a March 2005 statement of the 
case (SOC) and a March 2006 letter, subsequent to the initial 
adjudication.  While the notice was not provided prior to the 
initial adjudication, the claimant has had the opportunity to 
submit additional argument and evidence, and to meaningfully 
participate in the adjudication process.  The claim was 
subsequently readjudicated in June 2006 and January 2008 
supplemental statements of the case (SSOCs), following the 
provision of notice.  The veteran has not alleged any 
prejudice as a result of the untimely notification, nor has 
any been shown.  

The notification substantially complied with the requirements 
of Quartuccio v. Principi, 16 Vet. App. 183 (2002), 
identifying the evidence necessary to substantiate a claim 
and the relative duties of VA and the claimant to obtain 
evidence; Dingess v. Nicholson, 19 Vet. App. 473 (2006) 
identifying the five elements of a service connection claim; 
and Pelegrini, supra, requesting the claimant to provide 
evidence in his possession that pertains to the claim.  

With respect to the special monthly compensation claim, VA 
has obtained service medical records, assisted the veteran in 
obtaining evidence, afforded the veteran physical 
examinations, obtained medical opinions as to the etiology 
and severity of the relevant disabilities, and afforded the 
veteran the opportunity to give testimony before the Board.  
All known and available records relevant to that issue have 
been obtained and associated with the veteran's claims file; 
and the veteran has not contended otherwise.  The Board 
concludes that VA has substantially complied with the notice 
and assistance requirements, and that the veteran is not 
prejudiced by a decision on that claim at this time.


ORDER

Entitlement to special monthly compensation for loss of use 
of a creative organ is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs