Citation Nr: 21070545 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-53 556 DATE: November 24, 2021 ORDER Entitlement to special monthly compensation (SMC) based on loss of use of creative organ is granted. FINDING OF FACT The Veteran's service-connected pulmonary hypertension prevents her uterus from carrying a full-term pregnancy, thereby precluding her from use of a creative organ. CONCLUSION OF LAW The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350(a)(1)(ii). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1989 to June 1992. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a January 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a special monthly compensation based on loss of use of a creative organ, and loss of use of the bilateral lower extremities. In addition, the RO granted a special monthly compensation based on aid and attendance criteria being met from March 7, 2013; granted entitlement to automobile and adaptive equipment; granted entitlement to specially adapted housing; and confirmed and continued a 100 percent rating for service-connected pulmonary hypertension. The Veteran's Notice of Disagreement (NOD) was received in January 2015. The Veteran disagreed with the effective date for the aid and attendance SMC, disagreed with the 100 percent rating assigned for the service-connected pulmonary hypertension (requested the next higher evaluation); and, disagreed with the denial of SMC based on the loss of use of a creative organ. The Statement of the Case addressing the issues listed on the Veteran's NOD was issued in September 2017. On her October 2017 VA Form 9, substantive appeal to the Board, the Veteran indicated (by checking Box A) that she had read the SOC and she was only appealing the issue of entitlement to SMC based on the loss of use of a creative organ. In November 2021, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. She waived her right to have her representative present at the hearing. The transcript from the hearing has not yet been associated with the file, as the appeal is being processed under the Board's "One Touch" program. Entitlement to SMC based on loss of use of a creative organ. The Veteran's service-connected pulmonary hypertension (also claimed as heart failure) is rated as 100 percent disabling from June 28, 2000. She contends that her service-connected pulmonary hypertension causes her loss of use of creative organ. Specifically, the Veteran contends that as a result of her service-connected pulmonary hypertension, she is unable to carry a child to term, and attempting to do so would be too risky, including a risk of death, as a result of her service-connected pulmonary hypertension. As such, she is prevented from use of a creative organ. VA provides SMC 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. § 1114 (k). For example, erectile dysfunction warrants SMC based on loss of use of a creative organ even though there is no anatomical loss or removal of the penis. 38 C.F.R. § 3.350 (a)(1)(ii). Additionally, pursuant to 38 C.F.R. § 3.350 (a)(1)(ii), when loss or loss os use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. A December 2012 letter from the Veteran's private doctor, S.A., M.D. to the Veteran's insurance carrier requests oral birth control pills for the Veteran. The letter notes that their office has been following the Veteran for pulmonary hypertension since October 2011 and that their practice recommends that all female patients of childbearing age begin using two forms of birth control due to the very serious and life threating complications that a pregnancy can have. The letter goes on to state that if the female does become pregnant, termination is often the recommended treatment plan in order to save the woman's life. In an attempt to avoid this complication, Dr. S.A. was urging the insurance company to make an exception based on the Veteran's disease and provide birth control coverage. A March 2019 letter from Dr. J.T., a VA OBGYN that also teaches at Tulane University indicates that the Veteran is their patient at the VA hospital. Dr. J.T. indicates that the uterus is a necessary female reproductive organ, and that the Veteran has lost the use of her uterus due to her service-connected pulmonary hypertension. Dr. J.T. provided adequate rationale for that conclusion, describing the reproductive functions of a uterus, the pregnancy gestation period, and the effects that pulmonary hypertension has on the body during the pregnancy. Dr. J.T. further noted that pulmonary hypertension prevents the body from engaging in the gestational process, making the uterus nonfunctional for reproductive purposes. Dr. J.T. further emphasized that pulmonary hypertension is associated with a high risk of maternal mortality and severe morbidity (with mortality rates as high as 50 percent in mothers and in fetuses). Dr. J.T. also stated that it is standard medical protocol to medically advise females with pulmonary hypertension to avoid pregnancy. The opinion concludes that due to the risks associated with pulmonary hypertension, the Veteran will likely never successfully carry a pregnancy to term, and that she has been advised by all of her doctors against getting pregnant. Dr. J.T. concluded that the Veteran's pulmonary hypertension deprived the Veteran of the capacity to have children. Another March 2019 opinion, this time from Dr. B.D., a professor of Medicine and Physiology Section of Pulmonary/Critical Care and Allergy/Immunology at LSU, indicates that study after study revealed that pulmonary hypertension causes very high morbidity and mortality rate for both the mother and the fetus. Dr. B.D. indicated that the Veteran is a patient of theirs, and that she was misdiagnosed with several respiratory conditions until she was properly diagnosed with pulmonary hypertension. Dr. B.D. also indicated that their practice focuses on diagnosis and treatment of pulmonary hypertension, and routinely involves advising female patients with pulmonary hypertension to avoid pregnancy. Dr. B.D. indicated that the Veteran has been advised by multiple medical professionals against being pregnant due to high risk of death to both herself and the unborn child. Dr. B.D. also noted that the medication which the Veteran takes to treat her pulmonary hypertension can cause birth defects during a pregnancy. Dr. B.D. indicated that the uterus is a reproductive organ, and that there is no way to conceive or carry a pregnancy without the uterus. Dr. B.D. also concluded that due to the loss of ability to have a healthy gestation, the Veteran's pulmonary hypertension caused the Veteran to lose the use of her uterus. Additionally, the Veteran submitted several articles in support of her contentions. These include a medical article on the pregnancy risk and birth defect risks associated with her pulmonary hypertension medication. A November 2011 medical article titled Pregnancy in women with pulmonary tension from researchers at the Department of Cardiology at University of Groningen in the Netherlands indicates that pulmonary hypertension in pregnant women is associated with high mortality and morbidity risk for the mother, ultimately advising all women with pulmonary hypertension against becoming pregnant. A September 2015 article titled Statement on pregnancy in pulmonary hypertension from the Pulmonary Vascular Research Institute indicates that pregnancy outcomes in patients with pulmonary hypertension remain poor despite advanced therapies. The article is compiled by researchers from various research pulmonary research institutions, including Vanderbilt University, National Health Institute, and Baylor College. It thoroughly outlines the reasons for why pulmonary hypertension causes death during pregnancy in the first place is imperative. With respect to the two March 2019 private medial opinions, they carry substantial probative value. These opinions are provided by reproductive and pulmonary specialists that have treated the Veteran and are very familiar with her medical history and case. They are experts in their respective fields, and provided opinions that are internally consistent with each other. Moreover, appropriate and authoritative medical literature was cited that also supports both opinions, and the two opinions provided full rationale for all conclusions reached. With respect to the medial articles, they are assigned high probative value as they accompanied with an opinion of several medical professionals and discuss the relationship between pulmonary hypertension and mortality rates with very high certainty. Mattern v. West, 12 Vet. App. 222 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). Based on the review of the record, the preponderance of the evidence supports the finding that the Veteran's service-connected pulmonary hypertension prevents her uterus from carrying a healthy pregnancy to full term, thereby precluding her from use of a creative organ. Accordingly, entitlement to SMC for loss of use of a creative organ is warranted. As noted above, SMC is warranted if a service-connected disability causes the Veteran to suffer the anatomical loss or loss of use of a creative organ. 38 U.S.C. § 1114 (k). Further, pursuant to 38 C.F.R. § 3.350 (a)(1)(ii), SMC will be granted when loss of use of a creative organ results from wounds or other trauma sustained in service and the creative organ become incidentally involved. In this case, the Veteran is in receipt of 100 percent disability rating for pulmonary hypertension. She acquired pulmonary hypertension as the result of an in-service injury or disease. As the probative medical evidence in this case shows, it is a well-established medial fact, that pulmonary hypertension prevents the uterus from carrying a healthy full terms pregnancy, and that patients with pulmonary hypertension are routinely advised against being pregnant due to the high risk of mortality and morbidity. An important distinction to make here, is that reproductive function involves not just the ability to conceive a pregnancy, but also to carry a child though a complete and healthy gestational period. That is, to carry an embryo to full term, and complete all steps and functions necessary in producing a healthy child. This is supported by the ample medical evidence presented in this case. The Medical literature here supports the finding that the uterus is a reproductive organ, and that pulmonary hypertension precludes the uterus from completing its reproductive functions. Most importantly, the Veteran's physicians have consistently advised the Veteran that she is unable to carry a pregnancy full term due to her pulmonary hypertension. In other words, the evidence shows that the Veteran's pulmonary hypertension was caused by trauma sustained in service (pulmonary hypertension), and the uterus, which is a creative organ, has incidentally become involved. Essentially, by preventing the Veteran's uterus from carrying a healthy pregnancy to full term, her service-connected pulmonary hypertension caused the Veteran to lose the use of her creative organ. This is analogous to Veteran's that suffer from loss of use of a creative organ due to ED. As the Veteran's service-connected pulmonary hypertension precludes her uterus from completing a healthy gestational period, she is without use of her creative organ. For these reasons, SMC for loss of use of a creative organ is granted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.