Citation Nr: 20021652 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-19 028 DATE: March 26, 2020 ORDER Entitlement to special monthly compensation under 38 U.S.C. § 1114(k) (SMC-K) for the loss of a creative organ is denied. FINDING OF FACT The Veteran is not service connected for residuals of a hysterectomy; therefore, the loss of a creative organ is not due to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to SMC-K for the loss of a creative organ have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to February 1976. This matter originally came before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A September 2018 Board decision referred the matter to the RO. That decision was appealed to the United States Court of Appeals for Veteran Claims (CAVC), where a Joint Motion for Partial Remand (JMPR) was granted in July 2019. The matter is again before the Board. Although this decision denies SMC-K for the loss of a creative organ, the Veteran should file a claim for service connection for residuals of a hysterectomy. If that claim is ultimately granted, VA should then address the SMC-K issue for the loss of a creative organ as stated by the CAVC. Entitlement to SMC-K for the loss of a creative organ is denied. The Veteran believes that SMC-K for a total abdominal hysterectomy is warranted. The September 2018 Board decision referred the issue of SMC-K to the RO. The CAVC and the parties to the JMPR found that a remand was needed, essentially because the issue of SMC-K was part and parcel of the Veteran’s other claims which were properly before the Board at the time. Because the Board had jurisdiction over the issue, the issue should have been decided by the Board or remanded to the RO for further development instead of being referred to the RO. See Young v. Shinseki, 25 Vet. App. 201, 203 (2012). For the reasons below, the Board fins that SMC-K for the loss of a creative organ is not warranted. The Veteran is currently receiving special monthly compensation based on being statutorily housebound under 38 U.S.C. § 1114(s) (SMC-S). SMC-K is payable for a number of conditions due to service-connected disability, including the loss of a creative organ. Compensation is not available if the loss is traceable to an elective operation performed subsequent to service. An operation is not an elective one when it is based on sound medical judgment for the relief of a pathological condition or to prevent possible future pathological consequences. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). When there is also entitlement under SMC-S, the additional allowance under SMC-K is payable for each loss in addition to the basic rate of compensation, provided the total does not exceed the monthly rate set forth in 38 U.S.C. § 1114(l). See 38 C.F.R. § 3.350(a). The Veteran had a hysterectomy in 1981. See April 2003 Medical Treatment Record. The Veteran is not currently service-connected for residuals of a hysterectomy. See March 2020 Rating Decision – Codesheet. As the Veteran is not service-connected for residuals of the hysterectomy, the loss of a creative organ is not due to a service-connected disability. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Therefore, entitlement to SMC-K for the loss of a creative organ is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.