Decision Date: 10/25/95 Archive Date: 10/26/95 DOCKET NO. 93-20 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for impotence. 2 Entitlement to an increased rating for status post left varicocelectomy, currently evaluated as 10 percent disabling. 3. Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from September 1950 to March 1951 and from July 1952 to August 1961. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1992 rating decision of the Regional Office (RO) which denied the veteran's claims of entitlement to service connection for impotence, an increased rating for status post left varicocelectomy, and special monthly compensation based on loss of use of a creative organ. REMAND Service connection is in effect for scar, excision of exostosis of the right heel, with plantar fasciitis and degenerative joint disease of the right toe, evaluated as 20 percent disabling, and the post-operative residuals of a left varicocelectomy, evaluated as 10 percent disabling. When he was examined by the Department of Veterans Affairs (VA) in October 1992, the veteran complained of some impotence which he attributed to blood pressure medication. Following the examination, the examiner commented that it was well known that a varicocele can cause infertility. He added, however, that the veteran had fathered three children following the 1955 surgery for the left varicocele. The Board notes that the examiner did not address the underlying question as to whether the veteran was now actually impotent. It is not clear from the examiner's opinion whether the left varicocele could have caused the veteran impotence at any time following the surgery. Under 38 C.F.R. § 3.350(a) (1994), special monthly compensation may be granted for loss, or loss of use of a creative organ. A grant of special monthly compensation for loss of use of a creative organ can be predicated upon a certain degree of testicular atrophy, complete impotence or sterility. In this case, however, it would be necessary to show that the veteran is impotent due to the service- connected status post left varicocelectomy. In addition, the Board notes that the veteran has asserted that the symptoms of his service-connected left varicocelectomy residuals have increased in severity. The most recent VA examination for this condition was performed more than three years ago. In addition, it must be observed that VA outpatient records show that the veteran complained that the left varicocelectomy residuals were painful in December 1992. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (the Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Under the circumstances of this case, the Board finds that additional development of the record is required. Accordingly, the case is REMANDED for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and the approximate dates of treatment of all medical providers from whom he has received treatment for his status post left varicocelectomy since 1993, and for impotence at any time following service. After securing the proper authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the veteran. 2. The veteran should then be afforded a VA medical examination to determine the nature and extent of his status post left varicocelectomy, and whether or not he is now impotent. All necessary tests, including any special studies necessary to evaluate whether the veteran is impotent, should be performed, and the examiner should be requested to specify the severity of the veteran's service- connected status post left varicocelectomy. If impotence is found, the examiner is requested to furnish an opinion concerning its etiology, especially in relation to the veteran's claim that it is secondary to his service- connected left varicocelectomy residuals. The claims folder should be made available to the examiner for review in conjunction with the examination. 3. Thereafter, the RO should review the claims folder and ensure that the foregoing development has been accomplished in full. If any development is incomplete, appropriate remedial action should be instituted. Following completion of the above, the RO should review the evidence and determine whether the veteran's claims on appeal may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. J.F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -