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Citation Nr: 0304600

Decision Date: 03/13/03 Archive Date: 03/24/03

DOCKET NO. 01-10 211 ) DATE

)

)

On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO)

in Montgomery, Alabama

THE ISSUE

Entitlement to special monthly compensation based on loss of

use of a creative organ.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,

Inc.

ATTORNEY FOR THE BOARD

K. Hudson, Counsel

INTRODUCTION

The veteran had over seven years of active service, including

the verified periods from December 1968 to June 1970, and

from January 1975 to August 1978.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from an RO rating decision of September

1998, which, in pertinent part, denied special monthly

compensation based on loss of use of a creative organ. In a

February 2000 statement, the veteran requested a Board

hearing; however, in view of the following decision, which

grants the benefit sought, a hearing is not necessary.

FINDING OF FACT

The veteran is unable to achieve an erection without a pump,

and unable to engage in intercourse due to a service-

connected back disability.

CONCLUSION OF LAW

The criteria for special monthly compensation based on loss

of use of a creative organ have been met. 38 U.S.C.A. § 1114

(West 1991 & Supp. 2002); 38 C.F.R. § 3.350 (2002).

REASONS AND BASES FOR FINDING AND CONCLUSION

A. Background

The veteran is service-connected for numerous disabilities

including post-traumatic stress disorder (PTSD), evaluated

100 percent disabling, intervertebral disc syndrome,

evaluated 60 percent disabling, and urinary incontinence due

to intervertebral disc disease, evaluated 60 percent

disabling. He is in receipt of special monthly compensation

under 38 U.S.C.A. § 1114(s) for disabilities separately rated

100 percent plus 60 percent.

In August 1996, the veteran's wife wrote that although the

veteran had received an external pump, enabling him to have

an erection, he was unable to engage in sexual relations due

to back and leg pain.

On a VA examination in November 1996, the veteran's

complaints included increasing back pain, as well as pain in

the testicles and penis. He was wheelchair bound due to his

back disability.

On a VA neurological examination in June 1997, the veteran

complained of impotence, and the findings included impotence.

On a neurological examination in April 1998, the veteran'

complaints included sexual dysfunction, testicular pain, and

numbness in the penis. He had had four prior lumbar

laminectomies with no improvement of his symptoms. The

diagnoses included impotence secondary to back injury.

On a VA genitourinary examination in May 1998, the veteran

said he had been having problems with impotence since 1991,

and that he had had complete impotence since 1992. He said

that he had had a pump inserted in 1993. The veteran was

also noted to be incontinent of urine. He had undergone a

vasectomy in 1975. The examiner noted that vaginal

penetration and ejaculation were possible. The veteran had a

pump, which was rarely effective in allowing intercourse,

secondary to back pain after intercourse. On examination,

the testicles were normal in size. The diagnosis was

impotence secondary to laminectomy and spinal stenosis.

B. Analysis

The file shows that by RO correspondence, the rating

decision, and the statement of the case, the veteran has been

informed of the evidence necessary to substantiate his claim,

and of his and VA's respective obligations to obtain

different types of evidence. A VA examination was provided.

The Board finds that the notice and duty to assist provisions

of the law have been met. See 38 U.S.C.A. §§ 5103, 5103A;

38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet.App. 183

(2002).

Special monthly compensation may be paid for loss of use of a

creative organ, as a result of service-connected disability.

38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Although the

term "creative organ" is not defined in the law or

regulations, the Office of General Counsel has held that a

"creative organ," as used in 38 U.S.C.A. § 1114(k), refers

to a procreative, or reproductive, organ. VAOPGCPREC 2-00.

In addition, where a veteran has loss of erectile power from

service-connected causes, he is also entitled to special

monthly compensation for loss of use of a creative organ. VA

Adjudication Procedure Manual, M21-1, Part VI, 11.25

(Change 85, April 4, 2002); see 38 C.F.R. § 4.115b, Code

7522. Therefore, although not specifically identified as a

"creative organ" in 38 U.S.C.A. § 1114(k) or 38 C.F.R.

§ 3.350, other legal authority clearly establishes that the

penis is a creative organ, for purposes of entitlement to

special monthly compensation.

The Board also notes that the veteran has undergone a

vasectomy. With respect to whether this precludes special

monthly compensation based on loss of use of a creative

organ, it is well-established non-service-connected loss of

use of a creative organ (i.e., sterilization) does not bar

special monthly compensation for anatomical loss of a

creative organ. VAOPGCPREC 93-90; VAOPGCPREC 5-89. Neither

opinion explicitly addressed the matter of whether non-

service-connected loss of use of one creative organ bars

special monthly compensation based on loss of use of another

creative organ, rather than anatomical loss (although

VAOPGCPREC 5-89 suggests a distinction may be drawn).

However, the statute provides that "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, . . . [special monthly compensation shall be paid]

for each such loss or loss of use . . . and in the event the

veteran has suffered one or more of the disabilities

heretofore specified in this subsection, . . . the rate of

compensation shall be increased . . . for each such loss or

loss of use, . . ." 38 U.S.C.A. § 1114(k). Thus, the law

provides that special monthly compensation is to be provided

for loss of use of any creative organ, not merely loss of

reproductive capacity. By the use of the term "one or

more" creative organs, it is clear that only one creative

organ need be affected. Therefore, if a veteran has loss of

use of any creative organ, the presence of non-service-

connected loss of use of another creative organ is

irrelevant. Accordingly, the Board finds that the

preexisting vasectomy does not bar entitlement to loss of use

of a creative organ due to impotence.

As to whether the veteran is impotent, the VA examination in

May 1998 indicated that while the veteran was able to achieve

an erection with the use of a pump, resulting back pain

effectively precluded intercourse, and the diagnosis was

impotence due to the service-connected back disability.

Examinations in April 1998 and June 1997 also diagnosed

impotence, and the veteran and his wife have both stated he

is essentially impotent, due to back pain. (He is wheelchair

bound due to his back disability as well.) "The purpose of

the statutory award for loss or loss of use of a creative

organ is to account for psychological factors, S. Rep. No.

1681, 82d Cong., 2d Sess. 2 (1952); as well as the loss of

physical integrity, H.R. Rep. No. 6, 89th Cong, 1st Sess., 4

(1965)." VAOPGCPREC 5-89. Thus, the fact that he is

technically capable of achieving an erection, with the aid of

an assistive device, does not rule out special monthly

compensation, where he is, in essence, functionally impotent.

In the judgment of the Board, there is a reasonable doubt

that the veteran currently has loss of use of a creative

organ, due to impotence resulting from his service-connected

back disability. Such doubt is resolved in his favor.

38 U.S.C.A. § 5107(b). The Board concludes that the veteran

is entitled to special monthly compensation based on loss of

use of a creative organ, and that benefit is granted.

ORDER

Special monthly compensation based on loss of use of a

creative organ is granted.

L. W. TOBIN

Member, Board of Veterans' Appeals

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.