Citation Nr: 1319659 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 06-15 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for erectile dysfunction (previously characterized as impotence). 2. Entitlement to service connection for a back disability. 3. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1976 in the U.S. Army and he served in the U.S. Army Reserve from September 1976 to March 1978. He had active service from March 1978 to March 1995 in the U.S. Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. Custody of this case was transferred to the Reno, Nevada, VARO, and subsequently to the San Diego, California, VARO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. A Travel Board hearing was held at the RO in Reno, Nevada, in May 2007 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In October 2007 the Board remanded this case. At that time there were additional issues on appeal. The case was remanded for, inter alia, compliance with the Veterans Claims Assistance Act of 2000 (VCAA) as to a claim for service connection for post-traumatic stress disorder (PTSD), to obtain VA treatment record and VA examinations for nexus opinions in claims for service connection. The Veteran filed a Notice of Disagreement (NOD) in March 2004 to a rating decision that month denying service connection for diabetes, because he had not served in Vietnam and, so, was not presumptive exposed to herbicides and it first manifested in August 2003, over eight (8) years after his last period of active service. A Statement of the Case (SOC) was issued in August 2005 as to that issue. The October 2007 Board remand noted that service connection for diabetes was not currently in appellate status because the Veteran's VA Form 9 as to this issue was untimely. An April 2011 rating decision granted service connection for PTSD with depression, and assigned an initial 30 percent rating, and also granted service connection for "liver problems/hepatitis C/Cirrhosis with portal hypertension" which was assigned an initial 20 percent rating. Subsequently, the case was returned to the Board and in a November 2011 decision the Board denied service connection for an eye disability and for hypertension. The decision also noted that the Board did not have jurisdiction of additional matters, which were referred to the RO for consideration. The case was remanded for development of a claim for service connection for an acquired psychiatric disorder, other than PTSD, to include depression and for the issuance of a Statement of the Case (SOC) in response to the Veteran's having filed a Notice of Disagreement (NOD) to an initial 20 percent rating upon granting service connection in April 2001 for a liver disability, to include hepatitis C and cirrhosis with portal hypertension. Thereafter, a December 2011 rating decision denied a temporary total evaluation because of VA hospital treatment in excess of 21 days, from October 25, 2010, to December 23, 2010, because the Veteran admitted himself to stop addictive behaviors, and because alcohol and substance abuse were not service connected secondary to PTSD with depression but were considered willful misconduct which could not be compensated. A November 2012 rating decision denied service connection for bilateral lower extremities peripheral neuropathy and also found that new and material evidence had not been submitted to reopen a claim for service connection for diabetes mellitus. Service connection for hepatocellular carcinoma was granted and assigned an evaluation of 100 percent; also, special monthly compensation (SMC) based on being housebound (HB) was granted as was basic eligibility to Dependents' Educational Assistance, all from January 27, 2012. A 30 percent rating for PTSD with depression was increased to 70 percent effective January 30, 2012. The rating decision found that a VA examiner had stated that the Veteran's depression was related to his medical, social, and occupational problems, including his service-connected liver cancer. Also, a physician had diagnosed major depression, which was related to hepatic carcinoma. Thus, the rating decision stated that a diagnosis of depression was added to the service-connected PTSD, and the 30 percent rating was increased to 70 percent. The Veteran has not disagreed with the 70 percent rating and as there is no jurisdiction conferring Notice of Disagreement (NOD) to the downstream elements of effective date or compensation level, no such issues are now in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As this decision constituted a full grant of that benefit sought on appeal, the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, is no longer in appellate status before the Board. The November 2012 rating decision also found that an issue of entitlement to a total evaluation based upon individual unemployability (TDIU) was rendered moot and no longer applicable because of the assignment of the 100 percent schedular evaluation for hepatocellular carcinoma. See Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). That rating decision also confirmed and continued a 10 percent rating for tinnitus. Claims for increased ratings for limited extension of left knee; for degenerative joint disease (DJD) of the left knee, and for hemorrhoids were deferred. A December 2012 rating decision reflects that while an NOD had been filed the evaluation of liver problems/Hepatitis C/cirrhosis with portal hypertension, which was currently 20 percent disabling, and which was increased to 40 percent effective November 4, 2005; an evaluation of 100 percent was assigned for that disability from July 20, 2012; and a TDIU was granted effective November 4, 2005 to January 27, 2012; and basic eligibility to Dependents' Educational Assistance was established from November 4, 2005. It was found that this decision represented a full grant of benefits on appeal for the evaluation of liver problems/Hepatitis C/cirrhosis with portal hypertension and, so, the appeal for this issue was considered satisfied in full. A January 2013 rating decision granted service connection for patellar subluxation and assigned a 20 percent rating, but continued a 20 percent rating for limited left knee extension and continued a 10 percent rating for left knee degenerative joint disease (DJD) as well as a noncompensable rating for hemorrhoids. No NOD has been filed with respect to these adjudications which would initiate an appeal. The issues of service connection for erectile dysfunction and for a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Bilateral hearing loss is manifested by no more than Level II hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). As to the claim for a compensable rating for bilateral hearing loss, this appeal arises from the Veteran's disagreement with the initial rating assigned following a grant of service connection for hearing loss of the left ear. Historically, a historically, a May 1996 rating decision granted service connection for bilateral tinnitus and for hearing loss of the right ear but denied service connection for hearing loss in the left ear. The bilateral tinnitus was assigned an initial 10 percent rating and the hearing loss of the right ear was assigned an initial noncompensable rating. The Veteran did not appeal that decision. The May 2005 rating decision which is appealed granted service connection for hearing loss of the left ear, effective April 30, 2004 (date of claim) but a noncompensable evaluation for bilateral hearing loss was confirmed. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA has satisfied its duties to notify the Veteran in this case. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The Veteran testified in support of the claims before the undersigned VLJ in May 2007. A transcript of that hearing is on file. The Veteran's service treatment records (STRs) and records of VA outpatient treatment (VAOPT) records have been received. Veteran has been afforded VA examinations for the increased rating claim. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Also, records of the Veteran's award of Social Security Administration (SSA) disability benefits are on file. Here, the rating examinations are adequate because they were based upon the appellant's prior medical history and described the disabilities and limitations imposed in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The appellant has not alleged or demonstrated there were any relevant facts overlooked by rating examiners and there is no allegation that the rating examinations were in any manner inadequate. Unfortunately, the most recent VA audiology examination was declared by the examining audiologist to be inadequate for rating purposes. This was because the Veteran's response to pure tone threshold testing was not consistent with his ability to understand human speech, as determined by the examiner during the examination process. In other words, the examination is inadequate for rating purposes because the Veteran failed to cooperate in giving a true and accurate representation of the current level of his hearing acuity. As to this, the duty to assist is not a one-way street. When called upon to participate in an examination, conducted for the purpose of determining the current level of disability of a service-connected disorder for compensation purposes, it is incumbent upon the claimant to fully cooperate. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, questioning at the hearing focused on the elements for claim substantiation and the representative and the VLJ specifically elicited testimony from the Veteran as to the relevant clinical history and needed elements as to the severity of his service-connected hearing loss. While the VLJ did not specifically suggest the submission of any evidence that may have been overlooked, the case was remanded for additional examination, which was done in 2012. Moreover, neither the Veteran nor representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the Board hearing. Thus, the Board finds that, consistent with Bryant, Id., the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim for a compensable rating for bilateral hearing loss based on the current record. The Board has thoroughly reviewed all the evidence of record, which has now reached voluminous proportions. The Board has an obligation to provide reasons and bases supporting any decision, but there is no requirement to discuss, in detail, all pieces of evidence on file, or submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran must not assume that the Board has overlooked pieces of evidence which are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122(2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background VA Audiology Evaluation of April 2005 On VA audiology examination in April 2005 the Veteran reported having difficulty hearing while exposed to noise in a cafeteria. He had been exposed to loud noises during military service but had not been consistently exposed to loud occupational noise. He had worked for the U.S. Postal Service since 1997. He complained of bilateral tinnitus. The examiner opined that the Veteran had a bilateral tinnitus and a bilateral sensorineural hearing loss and that both had the same causative factor (loud noises during service). He reported not having post service recreational noise exposure. On the authorized audiological evaluation at that time, pure tone thresholds, in decibels, were as follows at the following frequencies as measured in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 50 40 40 50 Left Ear 40 45 50 55 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 86 percent in the left ear. However, while the report of the audiology examination reflects that the puretone threshold level in the right ear at 1,000 Hertz was 60 decibels, the actual audiology chart reflects that the puretone threshold in the right ear at the frequency was 50 decibels. There was an average threshold level in the left ear of 47.5 decibels. In the right ear, using the recorded 50 decibels at 1,000 Hertz, the average threshold level was 47.5 and using the record 60 decibels in the right ear at 1,000 Hertz, the average threshold level was 50 decibels. However, regardless of which puretone threshold level in the right ear at 1000 Hz is used, the Veteran's hearing acuity was Level II in each ear. The diagnosis was a bilateral moderate sensorineural hearing loss, with a significant threshold shift after military service. At the May 2007 travel Board hearing the Veteran testified that he did have hearing aids, although he was not wearing them at the time of the travel Board hearing. His biggest problem was his tinnitus, i.e., ringing in his ears. Page 3 of the transcript. When he had last had his hearing acuity tested two years ago he had been informed that his hearing had become worse. Page 4. He emphasized that his tinnitus was what bothered him the most. The service representative observed that at the hearing and without hearing aids the Veteran could hear "fine." Page 5. VA Audiology Evaluation of August 2009 A report of VA audiology evaluation in August 2009 is apparently contained in CAPRI records within VA's Virtual VA paperless system. As reported in the March 2010 rating decision, that examination found that an audiology evaluation revealed that the Veteran's speech discrimination in the left ear was 84 percent and 92 percent in the right ear. His decibel loss at the puretone threshold of 1000 Hertz (Hz) was 30, with a 35 dB loss at 2000 Hz, a 45 dB loss at 3000 Hz, and a 60 dB loss at 4000 Hz. The average decibel loss is 43 in the left ear. From Table VI of 38 CFR 4.85, Roman Numeral II is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. In the Veteran's right ear his decibel loss (dB) at 1000 Hertz is 30 dB, with a 30 dB loss at 2000, a 45 dB loss at 3000, and a 55 dB loss at 4000. The average decibel loss for the right ear is 40. Graphically, these findings are represented below. 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 30 30 45 55 Left Ear 30 35 45 60 From Table VI of 38 CFR 4.85, Roman Numeral I is determined for the right ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Virtual VA contains a VA treatment record dated December 3, 2010, reflecting that the Veteran complained of hearing high pitch whistling sounds coming from his hearing aids. VA Audiology Evaluation of April 2012 On VA audiological evaluation in April 2012 the Veteran's claim file was reviewed. The Veteran reported that he had to turn the volume of his television up louder, and had to use his left ear on a telephone. Puretone audiometric testing was conducted. The results show that the examiner reported that at the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz in each ear the Veteran's hearing acuity could not be tested. The examiner stated that the results of the audiometric testing were not valid for rating purposes and not indicative of an organic hearing loss because of the variability using ascending and descending testing methods in both ears demonstrated poor agreement between speech reception thresholds and responses to puretone audiometric testing, with a discrepancy of 20 to 30 decibels. There was also a poor agreement between word recognition results and responses to puretone audiometric test results. Speech discrimination score was 96 percent in the right ear and 96 percent in the left ear. The examiner commented that the use of speech discrimination score was appropriate for Veteran. The examiner further stated that the Veteran's hearing loss did not impact the ordinary conditions of his daily life, including his ability to work. The examiner reviewed, and reported, the results of audiometric testing during service in 1994 and VA testing in March 1996. Also, the examiner stated that there were invalid responses on the current audiometric testing to puretone testing in each ear. Thus, the examiner was unable to determine the Veteran's hearing status and, so, could not provide an opinion as to the impact of any hearing loss on the Veteran's daily functioning. It was further noted that on the current examination the Veteran was able to respond accurately to history questions at conversational loudness levels while using headphones. His word recognition results were 96 percent in each ear at 65 decibels. It was concluded, by the examiner, that the results of the current examination were inadequate for rating purposes. General Rating Principles Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present. 38 C.F.R. § 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings). In evaluating service-connected hearing impairment, a disability rating is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule establishes eleven auditory acuity levels under 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). "Puretone threshold average," as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating will be determined by the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating will be determined by the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). "The Secretary [of VA], in an internal guidance document, recently reaffirmed the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities." See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). "The policy of describing the results of all tests conducted makes sense, particularly in the context of the extraschedular rating provision. 38 C.F.R. § 3.321(b). Unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The Secretary's policy facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this case the results of the audiology examinations in 2005 and in 2009 show that the Veteran has not more than, at worse, Level II hearing acuity in each ear. This translates to a noncompensable degree of hearing loss. This is true even though VA has given him hearing aids. Moreover, the results of the 2005 and 2009 audiology examinations show that the Veteran does not have an exceptional pattern of hearing loss under 38 C.F.R. § 4.86(a) or (b). Here, the evidence shows that the Veteran was able to carry on conversations with others at the 2007 travel Board hearing and at the most recent VA audiology examination in 2012, even though he failed to cooperate by giving accurate responses to pure tone threshold testing. Moreover, the results of the rating examinations covering a span of a number of years shows that any progression in the severity of his hearing loss is, at most, minimal and still does not warrant a compensable disability rating. This is sufficient to comply with the applicable VA policies. See Martinak, Id. Moreover, any inability by the recent VA examiner in 2012 to render an opinion in this regard is a direct result of the Veteran's failure to cooperate with the examination process. Extraschedular Rating Consideration Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is addressed when either raised by the claimant or the evidence, and requires a three-step analysis. First, is whether the schedular criteria are adequate and, if they are, no extraschedular referral is required. Second, if inadequate, determine whether there is an exceptional disability picture considering such related factors as marked interference with employment (but not marked interference obtaining or retaining employment) or frequent periods of hospitalization. Third, if the rating criteria are inadequate and the related factors are present, the case must be referred for a determination of whether an extraschedular rating should be assigned. Thun v. Peak, 111, 115-16 (2008) (citing VA Gen. Coun. Prec. 6-1996, para. 7, and Fisher v. Principi, 4 Vet. App. 57, 60 (1993)) aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). Here, the schedular rating criteria are comprehensive and contemplate the full range impairment due to the Veteran's hearing loss. In light of his ability to understand and participate in human conversations, at the travel Board hearing and more recently at the 2012 VA audiology examination, no significant hearing loss is shown despite his use of hearing aids. In fact, his failure to cooperate at the 2012 VA audiology examination militates against his having an unusual or exceptional disability picture. Thus, the disability picture is not shown to be incapable of accurate evaluation with the use of the schedular rating criteria; at least when a claimant fully cooperates during the examination. For all of the foregoing reasons, the Board finds that during this appeal the service-connected bilateral hearing loss has not been compensably disabling and, so, there is no basis for staged rating of the disability under consideration, pursuant to Fenderson, Id. and that a compensable disability rating for bilateral hearing loss must be denied. Here, the preponderance of the evidence is against the claims and, so, the favorable resolution of doubt is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claims, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1361 (Fed. Cir. 2001). ORDER An initial compensable rating for bilateral hearing loss is denied. REMAND The Veteran was hospitalized for several days at NMC San Diego in September 2006. The reason for admission was rhabdomyolysis. He complained of muscle cramps in his leg and chest pain on admission. "Rhabdomyolysis is defined as '[a]n acute, fulminating, potentially fatal disease of skeletal muscle that entails destruction of muscle, as evidenced by myoglobinemia and myoglobinuria.' STEDMAN'S MEDICAL DICTIONARY 1564 (27th ed. 2000). The 'exertional' form of the condition can be 'produced in susceptible individuals by muscular exercise.' Id." Butcher v. Peake, No. 06-2570, slip op. at footnote 1 (U.S. Vet. App. Aug. 5, 2008) (nonprecedential memorandum decision). At the May 2007 travel Board hearing the Veteran testified that he had first had problems with impotence during service when he got back from overseas. He had noticed his health was not the same and he had difficulty concentrating and difficulty achieving an erection. When he got depressed, the difficulty achieving an erection became worse. Being placed on Viagra did not help. Page 31. He had been told that his impotence was due to his diabetes but they had not been able to confirm this. Pages 32 and 33. He claimed that the impotence had preceded his diabetes. Page 33. At the May 2007 travel Board hearing the Veteran testified that he had injured his back in a fall during service in 1988 or 1989 in Coronado, California, when he had also injured his left knee. An MRI or CAT scan had revealed a chipped bone in the lower part of his neck as well as arthritis. Page 34. He had problems in his back from the neck down to the low back. He had not been treated for his back during service because he had had more pain in his left knee than in his back. Page 35. Except that he had been treated, sometime in the 1980s, at Camp Pendelton on one occasion for a muscle spasm or generalized back pain. This was the only time he had been treated for his back during his military service. Page 36. He now received chiropractic treatment for his entire spine. He had not been told what the diagnosis was for his low back. Page 37. During service he had worked at a "mortar" pool and did a lot of lifting on a daily basis, and he felt that this was a causative factor in his current back disability. No physician had informed him that there was a relationship between all of his inservice hard work and his current back problems. Page 38. Erectile Dysfunction On VA genitourinary examination in April 2012 the Veteran's claim file was reviewed. The Veteran reported that he started having difficulty getting an erection and maintaining an erection and was given Viagra, which didn't help. Next he was given a pump, which did not help. Next he had tried Cialis, which also did not help. He was given another pump that also did not work. He then retried Viagra again, which still did not help. The examiner stated that the Veteran had erectile dysfunction and was unable to achieve and erection sufficient for penetration and ejaculation. A physical examination was not conducted because the findings would not be relevant. The diagnosis was erectile dysfunction. It was opined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the STRS showed no visits for erectile dysfunction during the early 1990s, as the Veteran had stated, i.e., he told examiner in the visit that he was seen for it during that time. Also, his 2003/2004 visits for erectile dysfunction both reflect that it started in early to mid 2003. Thus, it did not begin during service. Also, if it was due to his diabetes, and his diabetes is not service connected, then it is not caused by, i.e., not proximately due to or the result of, such service-connected condition. Back Disability On VA examination in April 2012 the Veteran's claim file was reviewed. The Veteran reported that he felt that his low back pain got worse due to his left knee. He stated that his pain was worsened from sitting in rough terrain-off roads vehicles. He did not complain of low back pain while in service since his left knee problems were of more concern. He stated that his low back pain progressively worsened when he was working in the US Postal Service, at which time he was required to lift up to 70 pounds. He had no history of back trauma per se. He had worked as a corrections officer for 4 years and then worked for the US Postal Service for 6 years, retiring due to liver cancer and PTSD. He stated that he had not filed a claim for worker's compensation for his low back with the US Postal Service. While serving in the army from 1973 to 1976 in an artillery unit he had done a lot of heavy lifting. While in the Marines from 1978 to 1995 he worked in mechanics, and did a lot of "humping" (marching while wearing a backpack and full load of gear). On physical examination thoracolumbar range of motion was tested and motion was both limited and painful. There was not atrophy and deep tendon reflexes at the knees and ankles were 1+. Light touch sensation was normal in the lower extremities and he had no radicular pain or other signs of radiculopathy. The examiner reported that the Veteran did not have intervertebral disc syndrome (IVDS), even though he regularly used a cane and occasionally use braces or crutches. X-rays revealed mild facet arthrosis at the lumbosacral junction. The examiner opined that the claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, because from the claim file review there were no inservice complaints of low back pain. Rather, it appeared that the Veteran's back injury was worsened from his occupation in the US post office, rather than from the military. Furthermore, X-rays showed mild arthritis, which the examiner opined was most likely from a natural progression of aging. The diagnosis was lumbar arthritis. In sum, the examiner's opinion was that the Veteran's low back condition was less likely than not (less than 50/50 probability) caused by or a result of previous military service. Here, the April 2012 VA genitourinary examination did not yield an opinion which addressed whether the claimed erectile dysfunction was aggravated by the Veteran's service-connected psychiatric disorder, as he has contended. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310(a), (b). Similarly, the 2012 VA orthopedic examination did not address whether the Veteran had a disability of the cervical spine, inasmuch as it is now clear that he is claiming service connection for disability not only of the thoracolumbar spine, but the entire spine, i.e., including the cervical spine. Moreover, the examination did not address whether, as the Veteran claims, the service-connected left knee disorder either caused or aggravated any disability of any spinal segment, i.e., the cervical and the thoracolumbar spinal segments. See Allen, Id. Also, the Veteran should be afforded the opportunity to identify any additional evidence or information which may be relevant to these service connection claims. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall provide the Veteran with an opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his claims for service connection for erectile dysfunction and service connection for a back disability, to include the cervical and thoracolumbar spinal segments, that have not yet been associated with the claims files. 2. Return the case to the VA examiner that rendered the 2012 opinion that the Veteran's erectile dysfunction was less likely as not incurred during active service, for the purpose of rendering an opinion as to (a) whether it is as likely as not that the Veteran's service-connected psychiatric disorder has caused his claimed erectile dysfunction and, also, (b) whether it is as likely as not that the Veteran's service-connected psychiatric disorder ( including the medicines he take for same) has aggravated the claimed erectile dysfunction. If that individual is not available, have the Veteran undergo another examination for the purpose of obtaining opinions as to the above questions. The examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility," rather it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. More likely than not, and as likely as not, support the contended causal relationship; whereas, less likely than not weighs against the claim. The claims files, including a copy of this REMAND, must be provided to the examiner, the examiner must review the claims files in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims files were reviewed. 3. The Veteran should be provided an examination, preferably by the examiner that conducted the 2012 orthopedic examination, for the purpose of determining whether he now has a disability of the cervical spine as well as the nature, time of onset, and etiology of any cervical spine pathology. Also, an opinion should be rendered as to whether it is as likely as not that the Veteran's service-connected left knee disability has either (a) caused or (b) aggravated his current thoracolumbar spine disability; or (c) caused or (d) aggravated a cervical spine disability, if any. Specifically, an opinion should be render as to whether the Veteran now has any current pathology of the cervical spine. If so, an opinion should be rendered as to whether it is as likely as not that any current cervical spine disability had its onset during or is otherwise related to the Veteran's military service, to include whether any cervical spine arthritis manifested within one year of discharge in September 1976 from the Army or within one year of his March 1995 discharge from the Marines. In rendering the opinions, it would be helpful if the examiner commented upon the significance, if any, of the Veteran's hospitalization in September 2006 for rhabdomyolysis. The examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility," rather it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. More likely than not, and as likely as not, support the contended causal relationship; whereas, less likely than not weighs against the claim. The claims files, including a copy of this REMAND, must be provided to the examiner, the examiner must review the claims files in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims files were reviewed. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claims by evaluating all evidence obtained after the SOC or most recent SSOC was issued. This must include adjudicating entitlement to service connection for a disorder of the cervical spine. 5. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs