Citation Nr: 21004859 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-31 545 DATE: January 28, 2021 ORDER Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. FINDING OF FACT The Veteran’s loss of use of a creative organ is due to service-connected disability. CONCLUSION OF LAW The criteria for entitlement to SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114, 5107; 38 U.S.C. §§ 3.102, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1981 to August 1983. This appeal arises from May 2010, May 2011, and October 2013 rating decisions by the VA’s Regional Office (RO), which, in pertinent part, addressed the rating of the Veteran’s service-connected spine disability (degenerative disc disease (DDD) of the lumbar spine) and the associated left lower extremity radiculopathy. This appeal was previously before the Board of Veterans’ Appeals (Board) in December 2016 and June 2020. In December 2016, the Board, inter alia, remanded the appeal for additional development for the spine disability and left lower extremity radiculopathy issues. In June 2020, the Board, inter alia, found that the issues of entitlement to service connection for hypogonadism as secondary to the spine disability and entitlement to SMC warranted consideration by the Board; the Board granted service connection for hypogonadism and remanded the SMC issue for further development, as discussed below. Entitlement to SMC based on loss of use of a creative organ is granted. SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the Diagnostic Codes (DCs) in VA’s Rating Schedule. SMC claims, other than those pertaining to one-time awards and annual clothing allowances, are governed by 38 U.S.C. § 1114(k)-(t) and 38 C.F.R. § 3.350 and § 3.352. SMC is payable at a specified rate if a 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. § 1114(k); 38 C.F.R. § 3.350(a). VA pays SMC for loss of use of a creative organ when service-connected disability results in loss of erectile power. See 38 U.S.C. § 4.115b, DC 7522. 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. By way of background, the record shows that the Veteran has been taking opioids, to include Vicodin and oxycodone, for the pain caused by his service-connected spine disability for many years. See, e.g., April 3, 2003, and April 6, 2006, Private Treatment Records; March 12, 2008, February 24, 2010, and November 8, 2019, VA Treatment Records. In the June 2020 remand, the Board noted that the Veteran’s private physician (K.L., M.D.) stated that the Veteran’s chronic opioid use is known to cause hypogonadism with the resultant effects of fatigue, ED (erectile dysfunction), and loss of muscle mass/strength. See Dr. K.L. March 2017 Letter. In June 2020, the Board granted service connection for hypogonadism as secondary to the Veteran’s service-connected spine disability (DDD), reasoning that Dr. K.L. attributed the hypogonadism to the Veteran’s opioid therapy for pain caused by the service-connected DDD. Furthermore, the Board found that the Veteran should be afforded a VA examination “as to the presence and etiology of any disorder productive of loss of use of a creative organ.” In substantial compliance with the Board’s remand instructions, VA afforded the Veteran an October 2020 examination. The examiner reviewed the Veteran’s records and reported that the Veteran “is capable of achieving an erection sufficient for vaginal penetration and coitus to ejaculation.” The examiner concluded that the Veteran’s hypogonadism is less likely than not related to opioid therapy and is more likely to be iatrogenic as a result of androgen supplementation, which was initiated on an empiric basis with documented testosterone levels that were within normal range. However, in a letter received in December 2020, Dr. K.L. made the following statements: the Veteran has been under his care for the past 13 years; the Veteran had a history of back injury that was treated with long-term opioid use including hydrocodone, oxycodone, and OxyContin; while on such medications, the Veteran developed symptoms such as ED; and the Veteran still has persistent ED. Dr. K.L. opined that the Veteran’s symptoms and blood work were consistent with hypogonadism secondary to chronic opioid use. Accordingly, Dr. K.L. concluded that the Veteran’s condition, to include ED, is directly related to “chronic opioid use and then subsequent hypogonadism which has led to impairment of his overall quality of life given the ongoing erectile dysfunction and other symptoms associated with hypogonadism.” In comparing the conflicting opinions of record, the Board finds that, at the least, the question regarding nexus between the Veteran’s hypogonadism and ED, on which this case turns, is in equipoise. Further, while the October 2020 VA examiner, who did not perform an in-person examination, suggested that the Veteran does not currently have ED, Dr. K.L., the Veteran’s doctor of many years, reported that the Veteran has persistent ED. The Board notes that the Veteran is capable of reporting that he has ED to his private physician, and a layperson is generally competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to a person through his or her own senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, any reasonable doubt must be resolved in the Veteran’s favor, and the Board finds that his current ED is the result of his service-connected hypogonadism, which is due to his chronic opioid treatment. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, SMC based on loss of use of a creative organ is warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, Counsel 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.