Citation Nr: 1301104 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-32 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to November 1974. This matter came to the Board of Veterans' Appeals (Board) from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in March 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's erectile dysfunction is not due to or aggravated by his service-connected prostate cancer; or otherwise related to a disease or injury in service. CONCLUSIONS OF LAW 1. Erectile dysfunction is not proximately due to or caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for special monthly compensation based on loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k) (West 2002 & Supp. 2012), 5107(b); 38 C.F.R. § 3.350(a)(1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. This letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, to include substantial compliance with the Board Remand (see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008)), and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The previous remand was for the purpose of obtaining private treatment records and an addendum VA opinion. Private treatment records from I.Y. Marshall, M.D., and L.B. Clay, M.D., were associated with the claims folder. In August 2012, a VA examiner provided a supplemental opinion to the November 2010 VA examination report. This opinion remedied the deficiencies in the previous opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). No available outstanding evidence has been identified pertaining to this claim. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to this claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). Criteria & Analysis SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114(k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. SMC is payable at a specified rate if the Veteran, as the 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), 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. VA policy is to pay SMC for loss of use of a creative organ whenever a service connected disease causes loss of erectile power. M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Paragraph 39(c) (Nov. 26, 2002). It must initially be established; however, that the loss of erectile dysfunction is a manifestation of a service-connected disease or injury. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b) (2012) (effective October 9, 2006). The Veteran's claim was received after the regulatory change. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran does not assert that his erectile dysfunction is directly due to service, rather he asserts that his erectile dysfunction is due to or aggravated by his service-connected prostate cancer and treatment therefor. Likewise, service treatment records are negative for erectile dysfunction, and the post-service medical evidence reflects that it manifested many years after separation from service. The absence for many years after service weighs the evidence against a finding that the Veteran's erectile dysfunction was present in service or in the years immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, there is no basis for service connection on a direct basis. Service connection for prostate cancer is in effect from August 27, 2010. Service connection has not been established for any other disease or disability. In letters dated in September 2010 from Dr. Marshall and Dr. Clay and accompanying treatment records, it was indicated that the Veteran was diagnosed with adenocarcinoma of the prostate based on a biopsy conducted in July 2010. He underwent neoadjuvant hormonal therapy for 8 months and then underwent brachytherapy seed implant in January 2011. Since then, he has done well with an undetectable PSA. The evidence of record reflects that the Veteran's erectile dysfunction predated his prostate cancer diagnosis and treatment. For example, an October 2007 treatment record from Dr. Marshall reflects a history of erectile dysfunction. Likewise, a July 2010 treatment record from Dr. Clay reflects that the Veteran has had erectile dysfunction for many years. Such records clearly support a finding that erectile dysfunction was present prior to the July 2010 diagnosis of prostate cancer. In November 2010, the Veteran underwent a VA examination. The Veteran reported two years of progressive difficulty obtaining and maintaining erections. He is totally unable to obtain and maintain an erection sufficient for vaginal penetration with climax and ejaculation. The examiner diagnosed erectile dysfunction secondary to neurovascular changes from aging. This opinion, however, is of little probative weight as the VA examiner did not provide any rationale. The probative value of an opinion is dependent on the reasoning provided, including the accuracy of the history that was considered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, in August 2012, another VA examiner reviewed the November 2010 VA examination report and claims folder. The VA examiner noted that the Veteran had a two year history of erectile dysfunction prior to any treatment for prostate cancer. Also, he had a long history of obstructing voiding symptoms and he had been on Avodart. The examiner explained that Avodart had up to a 5 percent incidence of impotence. The examiner thus concluded that his erectile dysfunction was less likely than not related to his service-connected prostate cancer. The examiner also noted that per the November 2010 VA examination report the Veteran had been totally unable to maintain an erection sufficient for vaginal penetration with climax and ejaculation prior to any treatment for prostate cancer. Thus, the examiner opined that it was less likely than not that his prostate cancer treatment would aggravate his erectile dysfunction since he is unable to obtain and maintain erection prior to any treatment. The opinions of the August 2012 VA examiner are the most probative evidence with regard to the question of whether there is a nexus between the current erectile dysfunction and prostate cancer and treatment. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinions were based on a review of the applicable record, including the Veteran's reports, the Board finds such opinions are probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Moreover, there is no contrary opinion of record with regard to causation and aggravation. There is otherwise no other competent and credible medical or lay evidence of a relationship between the Veteran's current erectile dysfunction and his service-connected prostate cancer and neither the Veteran nor his representative has alluded to the existence of any such evidence. As service connection is not warranted for erectile dysfunction, it follows that entitlement to SMC based on loss of use of a creative organ must be denied. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and service connection for erectile dysfunction is not warranted and the claim for SMC due to loss of use of a creative organ must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to special monthly compensation due to loss of use of a creative organ is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs