BVA9500345 
DOCKET NO.  93-03 410     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Medical Center in Buffalo, New
York

THE ISSUE

Eligibility for and entitlement to participation in a program of
electrostimulation of ejaculation for the treatment of impotency.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

D.P. Dean, Counsel

INTRODUCTION

The appellant is a veteran of active military service from
December 1985 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an unfavorable determination by the Medical
Administration Service (MAS) at the Department of Veterans
Affairs (VA) Medical Center in Buffalo, New York.

REMAND

The appellant is currently service-connected for severe spastic
paraparesis of the lower extremities, optic neuritis and ocular
dysmetria, muscular atrophy, and other residuals of myelopathy
probably due to multiple sclerosis.

According to the evidence of record, this claim was initiated by
a recommendation by the Chief of the Urology Section at the VA
Medical Center (VAMC) that the appellant be approved for
participation in an electroejaculation program (EEP).  This
recommendation is not reflected by the evidentiary record
currently certified to the Board, which feels that the
physician's reasons for the recommendation are extremely relevant
to the present appeal.

In addition, it does not appear from the current record that the
veteran is impotent and therefore in need of the EEP.  The
appellant reportedly requested an EEP because, according to an
April 1991 letter from his wife, he was unable to "father
children normally."  Medical confirmation of this assertion is
not currently of record.  At the present time, the appellant is
service-connected for intermittent erectile dysfunction,
noncompensably rated.  He is not receiving special monthly
compensation for loss of use of creative organ.  His present
status is primarily based upon the findings reported on a VA
examination in November 1991.  On that examination, the appellant
reportedly stated that he was experiencing intermittent erectile
dysfunction, needing more stimulation to achieve erection which
was of shorter duration and less frequent in onset.  However, he
went on to report that he was able to achieve penetration most,
if not all, of the time.  Accordingly, the factual question of
the appellant's need for the requested treatment program must be
further clarified.

Finally, the Statement of the Case issued to the appellant is
legally deficient in that it does not cite any current laws or
regulations as the justification for the decision of the MAS to
deny the claim, as required by 38 U.S.C.A. § 7105(d)(1)(B) (West
1991).  Instead, the Statement of the Case cites only a July 1988
statement by the Chief Medical Director of VA's Department of
Medicine and Surgery (currently the Veterans Health
Administration (VHA)) concerning the inadvisability of Congress
authorizing VA to furnish procreative services, such as in vitro
fertilization treatments, to assist veterans and their spouses
with fertility problems to overcome those problems.  Congress
apparently has not yet passed such authorizing legislation, at
least in part because of the concerns reflected by this
statement.  However, the EEP which is the subject of the present
appeal is not covered by this statement by the Chief Medical
Director since, as pointed out on the second page of that
statement, experimental EEPs are already provided at several
VAMCs under current authorizing legislation.

The essential question presented by this appeal, provided the
appellant's need for the requested EEP can first be established,
is whether he qualifies for participation in one of the
experimental EEPs at certain VA facilities (or at a private
facility on a fee-basis) and, if not, why not?  The MAS has not
yet addressed this question.

Accordingly this appeal is remanded to the originating VAMC for
the following further actions:

1.  The appellant should be scheduled for a
VA medical examination in order to
determine whether or not he is impotent.
All necessary diagnostic tests and studies
should be performed as part of this
examination.  The claims folder should be
made available to the examiner prior to the
examination, if possible.

2.  If the appellant is found to be
impotent, the MAS should next contact R.
Cartagena, M.D., or his successor as Chief
of the Urology Section at the VAMC in order
to determine if he or she would recommend
participation in an EEP for the appellant
and, if so, the reasons for that
recommendation.

3.  If the appellant is found to be in need
of an EEP for the treatment of impotence,
the MAS should next determine whether he is
a suitable candidate for participation in
such a program either at a VA facility or
at a private facility on a fee-basis.  If
it is felt to be necessary or appropriate,
this decision can be made in consultation
with the office of the Chief Medical
Director or any other appropriate office of
the VHA at the Central Office of VA.

4.  If the result of the aforementioned
determinations remains unsatisfactory to
the appellant, a Supplemental Statement of
the Case should be prepared and furnished
to him and his representative.  This
document must satisfy all of the legal
requirements set for at 38 U.S.C.A.
§ 7105(d)(1), in particular the
requirements to cite to the pertinent laws
and regulations and discuss how such laws
and regulations affect the decision of the
MAS; and to give a full and complete
explanation of the reasons for the decision
of the MAS.  As previously discussed, the
previous citation in the Statement of the
Case to the July 1988 statement by the
Chief Medical Director was inadequate both
because it was irrelevant to the present
issue and because such policy statements do
not have the force of statutes or Federal
regulations.  In addition, the Supplemental
Statement of the Case should provide the
appellant with a citation to the provisions
of 38 C.F.R. § 20.101(b) (1993) concerning
the limitations of the appellate
jurisdiction of the Board with respect to
certain medical determinations by the VHA.

The appellant and his representative should be provided an
opportunity to reply to the Supplemental Statement of the Case.
Thereafter, in accordance with proper appellate procedures, the
case should be returned to the Board for further appellate
review, if otherwise in order.

In taking this action, the Board implies no conclusion, either
legal or factual, as to any final outcome warranted.  No action
is required of the appellant until he is otherwise notified by
VA.

          SAMUEL W. WARNER
          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) (1993).