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