Akles v. Derwinski

1 Vet. App. 118, 1991 U.S. Vet. App. LEXIS 3, 1991 WL 146359
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 11, 1991
DocketNo. 90-390
StatusPublished
Cited by76 cases

This text of 1 Vet. App. 118 (Akles v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akles v. Derwinski, 1 Vet. App. 118, 1991 U.S. Vet. App. LEXIS 3, 1991 WL 146359 (Cal. 1991).

Opinion

FARLEY, Associate Judge:

This appeal involves two statutory duties imposed upon the Secretary of Veterans Affairs: the duty to “assist ... a claimant in developing the facts pertinent to the claim” (38 U.S.C. § 3007(a)) and the duty to “distribute full information to eligible veterans ... regarding all benefits and services to which they may be entitled” (38 U.S.C. § 241(2)). The appellant contracted mumps while in service which resulted in the atrophy of the left testicle. His reopened claim for an increase in service-connected benefits to a compensable rating for testicular atrophy was denied due to a lack of clinical evidence. This denial was without the benefit of a physical examination which might have assisted a determination as to the veteran’s eligibility for benefits. Because we find that the Secretary fulfilled neither his duty to assist nor his duty to distribute full information, we remand this case so that the proper clinical evidence can be gathered through a VA physical examination and a determination made as to whether the veteran is entitled to special monthly compensation pursuant to 38 U.S.C. § 314(k).

I.

The veteran, Newman Akles, served on active duty from December 18, 1942, to [119]*119May 29, 1943, and from January 9, 1952, to July 25, 1954. It is agreed that while on his last tour of duty the veteran “contracted mumps accompanied by orchitis with resultant atrophy of the left testicle, for which service connection was established at a noncompensable rate under 38 C.F.R. § 4.115(a) (1989).” Br. of Appellant at 2; see also Br. of Appellee at 2.

On February 9, 1989, the veteran reopened a claim for benefits based upon increased testicular pain and complete atrophy of the left testicle. On February 24, 1989, the Regional Office (RO) denied the veteran an increased disability rating due to the absence of clinical evidence establishing a compensable condition. The rating board noted that the “last evidence received subsequent to the rating action” was derived from a medical examination of February 5, 1985. R. at 3-5. This 1985 Veterans’ Administration (VA) examination notes the veteran’s testicular condition: “Is 0% for [left] testicular atrophy_ Generally it has been swollen and painful.” R. at 4. No further examination was scheduled and no additional evidence was sought by the RO before the claim was denied. On March 6, 1989, a Notice of Disagreement was filed on behalf of the veteran by his wife. R. at 15.

In his appeal to the Board of Veterans’ Appeals (BVA), the veteran raised a number of additional issues unrelated to his claim for benefits for testicular pain, tenderness and atrophy. In its January 3, 1990, decision, the BVA referred the unrelated issues back to the RO because they had been presented for the first time on appeal and were not ripe for BVA review. Newman Akles, loc. no. 000601, at 2 (BVA Jan. 3, 1990). With regard to the claim for left testicular disability, the BVA affirmed the decision of the RO and “den[ied] the claim on the basis of insufficient evidence.” Newman Akles, loc. no. 000601, at 3 (BVA Jan. 3,1990). A timely appeal to this Court followed.

II.

The veteran in his appeal to this Court argues that the Secretary has failed in his duty to assist under 38 U.S.C. § 3007(a) (1988) by not scheduling a physical examination and failed to fulfill the requirement of 38 U.S.C. § 241(2) (1988) that the veteran be informed of all possible benefits to which he may be entitled. While the veteran does not, and apparently cannot, meet the criteria to receive compensation for atrophy of one testicle, the veteran may be eligible for special monthly compensation pursuant to 38 U.S.C. § 314(k) (1988). However, the veteran’s eligibility for special monthly compensation was never considered by the Veterans’ Administration, or its successor, the Department of Veterans Affairs (VA).

A.

Pursuant to 38 C.F.R. § 4.115(a), Diagnostic Code 7523 (1989), the complete atrophy of one testicle would result in a 0% rating. If both testicles are completely atrophied, a 20% rating would be awarded. Under Diagnostic Code 7524 (1989) of the same regulation, a disability rating of 10% would be awarded in the event one testicle is removed. However, this is not the only way in which a veteran suffering from a condition involving a creative organ could receive compensation.

Any veteran with a service-connected disability involving a creative organ may be entitled to special monthly compensation. 38 U.S.C. § 314(k). Section 314(k) provides: “[I]f the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs” he is entitled to a special monthly compensation. The requirements for special monthly compensation are set out in 38 C.F.R. § 3.350 (1989), which provides:

The rates of special monthly compensation stated in this section are those provided under 38 U.S.C. 314.
(a) Ratings under 38 U.S.C. 314(k). Special monthly compensation under 38 U.S.C. & 314(k) is payable for each anatomical loss or loss of use of ... one or more creative organs....
(1) Creative organ, (i) Loss of a creative organ will be shown by acquired [120]*120absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that:
(a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or
(b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or
(c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa.

38 C.F.R. § 3.350(a)(l)(i).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

190415-9488
Board of Veterans' Appeals, 2019
181016-629
Board of Veterans' Appeals, 2019
11-33 498
Board of Veterans' Appeals, 2018
14-38 022
Board of Veterans' Appeals, 2018
12-34 685
Board of Veterans' Appeals, 2017
11-04 992
Board of Veterans' Appeals, 2016
13-13 328
Board of Veterans' Appeals, 2016
10-34 890
Board of Veterans' Appeals, 2016
Buie v. Shinseki
24 Vet. App. 242 (Veterans Claims, 2010)
Former Employees of Invista v. U.S. Secretary of Labor
626 F. Supp. 2d 1301 (Court of International Trade, 2009)
Gary D. Bradley v. James B. Peake
22 Vet. App. 280 (Veterans Claims, 2008)
Former Employees of BMC Software, Inc. v. United States Secretary of Labor
519 F. Supp. 2d 1291 (Court of International Trade, 2007)
Mabel A. Akers v. Anthony J. Principi
17 Vet. App. 561 (Veterans Claims, 2004)
Floyd v. Brown
9 Vet. App. 88 (Veterans Claims, 1996)
Carpenter v. Brown
8 Vet. App. 240 (Veterans Claims, 1995)
Beaty v. Brown
6 Vet. App. 532 (Veterans Claims, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 118, 1991 U.S. Vet. App. LEXIS 3, 1991 WL 146359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akles-v-derwinski-cavc-1991.