Citation Nr: 1611221 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 13-22 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a service-connection claim for hepatitis. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a left shoulder disability. 5. Entitlement to service connection for a lumbar spine disability. 6. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. 7. Entitlement to a compensable disability rating for status post tonsillectomy. 8. Entitlement to a compensable disability rating for sinusitis prior to May 28, 2010, and in excess of 30 percent from May 28, 2010 to the present day. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2015, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record. For the sake of clarity, the Board notes that the Veteran was first denied entitlement to service connection for erectile dysfunction in March 2012 due to failure to report to a VA examination. The Veteran subsequently indicated that he was unavailable for the examination and would like it rescheduled. Prior to rescheduling, the Veteran withdrew his erectile dysfunction claim. See a June 8, 2012 letter from the Veteran. Significantly, in a letter dated July 12, 2012, the RO informed the Veteran that, per his request, his erectile dysfunction claim had been withdrawn, and that if he filed the same claim within one year of the date of the letter, the effective date for any grant of benefits for the same claim will be awarded as if the claim were not withdrawn. The Veteran re-filed a service-connection claim for erectile dysfunction within one year of the RO's letter, in June 2013. As such, although the RO in its January 2014 rating decision adjudicated the Veteran's erectile dysfunction claim as one requiring receipt of new and material evidence to reopen, the Board finds that in this case only, based on what the RO informed the Veteran in its July 2012 letter, no such preliminary requirement is necessary before the issue is adjudicated on the merits. The Veteran's service-connection claims for a lumbar spine disability, a left shoulder disability and for erectile dysfunction, as well as his increased rating claim for status post tonsillectomy, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In correspondence received in May and June 2015, and at the October 2015 hearing, the Veteran specifically withdrew his increased rating claim for sinusitis. 2. The RO denied the Veteran's service-connection claim for hepatitis in an October 1995 rating decision. The Veteran initiated, but did not perfect an appeal as to this rating decision, nor did he submit new and material evidence within one year. 3. The evidence received since the October 1995 rating decision relates to an unestablished fact necessary to substantiate his service-connection claim for hepatitis. 4. The evidence favors a finding that the Veteran's hepatitis C had its onset during his period of active service. 5. The Veteran's cervical spine disability did not manifest in service, and arthritis was not manifest within one year after separation from service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of the Veteran's Substantive Appeal have been met as to his increased rating claim for sinusitis. 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. §§ 20.200, 20.202, 20.204(b) (2015). 2. As new and material evidence has been received, the claim for service connection for hepatitis is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Hepatitis C was incurred in active service. 38 U.S.C.A. §§ 5107, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The Veteran's cervical spine disability was not incurred in or aggravated by service, and arthritis is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015). The Veteran has withdrawn his appeal for an increased disability rating for sinusitis, and it will be dismissed below. The Board is reopening and granting the Veteran's service-connection claim for hepatitis. Any failure to comply with the duties to notify or assist with respect to these appeals is rendered moot by the favorable action taken below. With respect to the Veteran's service-connection claim for a cervical spine disability, VA satisfied its notice requirements under the VCAA in a March 2009 letter. Concerning VA's duty to assist, VA has obtained the Veteran's service treatment records, post-service private treatment records, records from the Social Security Administration, his own lay statements and the statements of fellow servicemembers. The Veteran has identified no outstanding evidence, to include any other medical records, that could be obtained to substantiate his claim, and the Board is also unaware of any such outstanding evidence. The Veteran has been afforded a VA examination during the appeal period to assess the nature and etiology of his cervical spine disability. The Board observes that the findings contained within the examination report, dated in March 2010, are adequate for adjudicatory purposes. The examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered appropriate diagnoses consistent with the other evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). During the October 2015 Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the appeal decided on the merits below has been consistent with said provisions. Analysis A. Dismissed appeal - Sinusitis An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2015). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2015). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2015). The Veteran perfected an appeal of his increased rating claim for sinusitis in July 2013. On a May 2015 written statement (VA Form 646), the Veteran's representative indicated that the Veteran wished to withdraw his sinusitis appeal. Subsequently, in correspondence received on June 4, 2015, the Veteran himself indicated that he wished to withdraw his sinusitis appeal. At the October 2015 hearing, the Veteran and his representative confirmed this intention. See the October 2015 hearing transcript, at 2. The Board finds that the Veteran's withdrawal request, submitted both in writing and attested to on the record at his October 2015 hearing, was knowledgeable and voluntary, and qualifies as a valid withdrawal of the perfected issue on appeal. See 38 C.F.R. § 20.204 (2015). Accordingly, there remains no allegation of error of fact or law for appellate consideration as to the Veteran's increased rating claim for sinusitis. The appeal is dismissed. B. New and Material Evidence - Hepatitis C The RO originally denied the Veteran's service-connection claims for hepatitis in an October 1995 rating decision. The RO denied the claim based on findings that the Veteran's service treatment records included no showing of complaints, findings, symptoms or diagnoses of hepatitis, and that 1986 is the earliest date of his condition being diagnosed. The Veteran initiated, but did not perfect an appeal of this rating decision, nor did he submit new and material evidence within one year. Thus, the RO's October 1995 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen his service-connection claim for hepatitis in April 2009. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the Veteran submitted an October 2015 letter from Dr. T.O., who pertinently opined that the Veteran had a history of hepatitis C that was "very probably related to prior sexual history while a service member (>50% probability)." This additional medical evidence relates to a potential relationship between the Veteran's current hepatitis C and his service, which is an unestablished fact necessary to substantiate his service-connection claim. The evidence is new, material and serves to reopen the claim. C. Service Connection a. Hepatitis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain enumerated disabilities, if any such disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2015). Hepatitis is not one of the enumerated disabilities. Several risk factors for hepatitis C have been recognized by VA. These include: transfusion of blood or blood product before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, acupuncture with non-sterile needles, intravenous drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood by percutaneous exposure or on mucous membranes, sharing of toothbrushes or shaving razors, and immunization with a jet air gun injector. See VA's Adjudication Procedural Manual (M21-1), at M21-1.III.iv.4.I.2.e. (Dec. 16, 2015). The M21-1 indicates that that hepatitis C was previously called non-A, non-B hepatitis, and is a clinically asymptomatic acute disease, with chronic disease developing in 80 percent of cases following the acute phase. The diagnosis is generally made incidentally many years after infection. See M21-1.III.iv.4.I.2.a. (Dec. 16, 2015). Indeed, in 1992, more effective screening of blood became possible for hepatitis C. See M21-1.III.iv.4.I.2.3. (Dec. 16, 2015). In this case, the Veteran asserts that his current hepatitis C had its onset during his period of service, and is directly related to in-service high-risk sexual activity. The Veteran's service treatment records do not indicate that the Veteran tested positive for hepatitis in service. However, he did receive treatment for gonorrhea and herpes while in service, both during and after his service in Korea. Although the Veteran's examination upon separation from service in 1977 indicated negative laboratory findings, he reported to his treating physicians in 1997 that he was told upon separation from service that he had elevated liver enzymes, most likely due to non-A, non-B hepatitis. See an August 1, 1997 letter from the U.M.M.C. to Dr. J.M. The Veteran is certainly competent to report that which he was told by his physician. In June 1986, Dr. D.H.W. evaluated the Veteran for elevated liver enzymes. He noted that the Veteran had elevated serum glutamic-oxaloacetic transaminase (SGOT) levels in 1982, but was quite asymptomatic. There was evidence of a previous hepatitis B infection with a positive hepatitis-B core antibody, with indication that the infection was greater than four months prior. Liver biopsy was consistent with "chronic persistent hepatitis." Dr. D.H.W. indicated that the Veteran most likely had a "chronic persistent hepatitis-B and it is possible he has a non-A, non-B hepatitis." See a June 24, 1986 letter from Dr. D.H.W. In May 1995, Drs. A.G. and J.E.M. assessed the Veteran and determined that the Veteran had hepatitis C infection, indicating that the "serum antibody present for hepatitis C virus and past history of chronic hepatitis on liver biopsy in 1986 suggests that he probably has hepatitis for at least 8-9 years. Serology does not suggest any active hepatitis B at present." In March 2010, the Veteran appeared for a VA examination. Upon review of the Veteran's medical history, the examiner noted that the Veteran contracted gonorrhea while stationed in Korea and also herpes simplex type 1. He was treated while in Korea and then got it again when stationed at Fort Knox, KY and was treated. The examiner cited specific in-service dates of treatment for urethral discharge in May 1975, July 1976 and January 1977. Upon review of the Veteran's history of hepatitis treatment, the examiner opined that the Veteran "could have contracted hepatitis C during high risk sexual behaviors but that would be mere speculation." See the March 2010 VA examiner's report at 33. The Veteran subsequently submitted an October 2015 letter from Dr. T.O., who determined that the Veteran had a history of hepatitis C that was "very probably related to prior sexual history while a service member (>50% probability)." In this case, the Board is not entirely satisfied with either of the above-referenced medical opinions from the March 2010 VA examiner or Dr. T.O. On the one hand, with respect to the favorable October 2015 opinion of Dr. T.O., the Board notes Dr. T.O. provided little clinical rationale in support of his positive nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). On the other, with respect to the non-opinion of the March 2010 VA examiner, the examiner failed to explain why he believed linking hepatitis C to high-risk sexual behavior in service was possible, but would amount to "mere speculation." See Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner must provide a rationale as to why a requested opinion could not be provided). As noted above, VA recognizes high-risk sexual activity as a hepatitis C risk factor. The M21-1 indicates that the transmission risk is relatively low, but increases with multiple sexual partners. It also notes that, periodic health assessments or records of treatment for sexually transmitted diseases may document a history of high-risk sexual activity or multiple sexual partners. See M21-1.III.iv.4.I.2.e. (Dec. 16, 2015). In this connection, the Veteran's service treatment records, which note extended treatment for gonorrhea and herpes during and after the Veteran's tour of duty in Korea, are suggestive of a history of in-service high risk sexual activity. Throughout the Veteran's well-documented history of treatment from the mid-1980s to today, he has consistently denied any other hepatitis risk factors, to include drug use or blood transfusions, and the medical professionals of record have at no time called into question the Veteran's reported history. In light of the fact that (1) the Veteran has competently attested to having been told by treating physicians in service that he had elevated liver enzymes due to hepatitis non-A, non-B; (2) that he clearly contracted, and was treated for sexually transmitted disease during service; (3) that VA recognizes high-risk sexual activity (as shown by treatment for sexually transmitted infections) to be a risk factor for hepatitis C; (4) that he has consistently denied experiencing any other hepatitis C risk factor for decades after service; (5) that he was noted to have possible non-A, non-B hepatitis as early as 1986; (6) that prior to 1992 hepatitis C was previously diagnoses as non-A, non-B hepatitis; (7) that after 1992, utilizing new testing, the Veteran's hepatitis C was confirmed and deemed to have been present for at least 9 years prior; (8) that the March 2010 VA examiner noted that it was possible for the Veteran's hepatitis C to be linked to risk factors during service, and (9) that Dr. T.O. did in fact link the Veteran's hepatitis C to service, albeit without explanation; the Board finds that when evaluated as a whole, the evidence of record favors a finding that the Veteran's hepatitis C was incurred during service. The benefit sought on appeal is granted. b. Cervical Spine The laws and regulations pertaining to the evidentiary requirements for establishing service-connection have been outlined above. Notably, unlike as with hepatitis, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability manifests to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish the chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F. 3d 1331, 1338 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic per 38 C.F.R. § 3.309(a)). As noted above, service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that he has a current cervical spine disability that had its onset in, or is otherwise related to his period of service. It is undisputed that the Veteran has a current cervical spine disability. Upon examination in March 2010, a VA examiner specifically diagnosed the Veteran with mild intervertebral disc space narrowing with endplate osteophyte formation at C5-C6 and C6-C7. See the March 2010 VA examiner's report at 29. With respect to in-service disease or injury, the Veteran's service treatment records include no indication that the Veteran complained of, or sought treatment for any problems with his neck. While his records do confirm that he was in a motor vehicle accident in August 1976, suffering injury to his right shoulder and a laceration to his thigh, no treatment report pertaining to care following this accident references any problem with the Veteran's neck. That stated, even assuming the Veteran did injure his neck during service in an August 1976 motor vehicle accident, no physician has linked the Veteran's current arthritis disability to such injury. In fact, the March 2010 VA examiner specifically opined against such a relationship. Highlighting the Veteran's pertinently negative service treatment records and pertinently positive post-service treatment for intervening neck injuries in 1981 and 1988, the March 2010 VA examiner found it less likely than not that his current cervical spine disability is related to an injury sustained during service. There is no medical opinion of record contrary to that of the March 2010 VA examiner. The only evidence of record supporting the Veteran's claim is his general lay assertion that he has experienced neck problems since service. As a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this connection, the Veteran is certainly competent to observe symptoms of neck pain with onset during his period of service. Upon review of the record however, the Board finds that the Veteran has not presented credible lay assertions sufficient to establish the onset of a chronic neck disability-namely, his arthritis-during service, with continuous symptoms thereafter. Indeed, at the time of separation, he was given a "normal" clinical evaluation of his head, face, neck and scalp, as well for his upper extremities. See the July 29, 1977 Report of Medical Examination. On his July 1977 Report of Medical History, he reported no specific neck pain. Approximately five years after separation from service, in April 1981, the Veteran sustained a neck injury in a motor vehicle accident. His car was hit from behind and he suffered a whiplash injury. See an April 21, 1981 treatment report. X-rays taken at the time of the accident showed an "essentially normal examination of the cervical spine." See an April 17, 1981 radiology report. Importantly, in subsequent reports of treatment, the Veteran specifically identified this April 1981 post-service accident, and not his prior in-service accident in August 1976, as the point in time he began experiencing neck pain. See, e.g., a May 15, 2007 report from the Sparrow Pain Management Center (noting the Veteran's own report that he was rear-ended in 1981, and "this began his neck pain"); a June 11, 2007 report from the Great Lakes Brain and Spinal Institute (noting a "longstanding history of neck discomfort initially starting in 1981 where he was rear ended"); and a June 14, 2007 report form the Sparrow Pain Management Center (similarly indicating that the Veteran stated his neck pain began in 1981 after a motor vehicle accident). The evidence demonstrates that the Veteran suffered other post-service injuries to his neck subsequent to his 1981 accident, to include in another accident in 1988. Significantly, at no point in time from his separation from service in 1977, to the time he filed his service-connection claim with VA for benefits in 2009 did the Veteran attribute the pain he has in his neck to his in-service 1976 accident. In contrast, after filing his claim for benefits, the Veteran neglected to tell the March 2010 VA examiner about his post-service motor vehicle accidents and instead attributed his neck pain history to his period of service. The March 2010 VA examiner was only made aware of his 1981 and 1988 accidents through her own review of the Veteran's file. In light of the fact that the Veteran (1) had a normal clinical evaluation of his neck and upper extremities upon separation from service; (2) that he made no mention of neck problems at separation from service; (3) that he has no documented treatment available for review for any neck problem between his August 1976 in-service motor vehicle accident and April 1981 motor vehicle accident; (4) that he told his treating physicians on more than one occasion in 2007 that his neck pain began in 1981 after his post-service motor vehicle accident; (5) that he failed to mention to his treating physicians at any time prior to filing his current claim for compensation that he had a history of neck problems dating back to service; and (6) that the Veteran similarly failed to note his well-documented post-service history of neck problems to the March 2010 VA examiner, the Board finds the Veteran's assertions of continuity of symptoms simply not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of a veteran); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). To the extent the Veteran himself asserts his current neck disability is related to his in-service injury, the Board finds that he is not competent to diagnose the etiology of his cervical spine disability. Attribution of his current disability to the injury he sustained in service relates to internal medical processes, beyond any immediately observable cause-and-effect relationship, which courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes a layperson will be competent to identify the condition, where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer"). Here, there are no Jandreau type exceptions. Indeed, the Veteran does not stipulate, nor does the medical evidence show that any physician has attributed the Veteran's current cervical spine disability to an injury sustained in service. As such, the Veteran's statements in this regard are not competent. Alternatively, to the extent that they are, the Board finds the March 2010 VA examiner's medical opinion against a relationship to be of greater probative value than the Veteran's untrained assertions to the contrary. Here, although the Veteran may have had an in-service injury, arthritis was not "noted" during service. In addition, he did not have characteristic manifestations sufficient to identify the chronic disease entity. 38 C.F.R. § 3.303(b). The Board adds that there is no indication in the record that the Veteran developed cervical spine arthritis within one year of separation from service in 1977. As such, service connection for arthritis cannot be presumed under the provisions of 38 C.F.R. §§ 3.307 and 3.309. As the evidence is against a finding that a relationship exists between the Veteran's current cervical spine disability and his claimed in-service injury, or that arthritis was manifest to a compensable degree within the Veteran's first post-service year, the Veteran's claim must fail. Here, there is no doubt to be resolved. ORDER The appeal of entitlement to a compensable disability rating for sinusitis prior to May 28, 2010, and in excess of 30 percent from May 28, 2010 to the present day, is dismissed. The application to reopen a claim for service connection for hepatitis is granted. Service connection for hepatitis C is granted. Service connection for a cervical spine disability is denied. REMAND Service Connection - Left Shoulder and Lumbar Spine Disabilities The Veteran asserts that he has both a left shoulder disability and a lumbar spine disability related to injuries sustained during service. The evidence demonstrates that the veteran has acromioclavicular joint osteoarthritis of the left shoulder, and endplate degenerative change at T12 of the thoracolumbar spine. See the March 2010 VA examiner's report at 14 and 38. As discussed above, the Veteran was in a motor vehicle accident during service in August 1976. The Veteran asserts that he has had back and left shoulder problems since this in-service accident. With respect to the Veteran's left shoulder, although most of the treatment reports pertaining to care following the August 1976 accident document treatment for a right shoulder disability, there is one service treatment report dated August 29, 1976 indicating "pain in shoulders [plural] and leg" from the automobile accident. Although the March 2010 VA examiner evaluated the nature of the Veteran's left shoulder disability, she did not provide an opinion as to the etiology of his claimed disability. It appears that the RO recognized the incomplete examination report and a need to obtain a medical opinion-to include on a secondary basis-on an October 2011 Deferred Rating Decision. On November 8, 2011, a VA examiner opined against a relationship between the Veteran's left shoulder disability and service, simply noting that the condition is related to a post-service work injury, without providing any discussion of the Veteran's service treatment records. The examiner similarly noted, without any supporting explanation, that the left shoulder disability is not a condition secondary to his service-connected right shoulder condition. On remand, the AOJ should schedule the Veteran for an updated VA examination, and obtain an more thorough opinion as to the etiology of his left shoulder disability, both on a direct and secondary basis. With respect to the Veteran's lumbar spine, the March 2010 VA examiner opined against a relationship between his lumbar spine disability and the Veteran's in-service automobile accident, citing both to an absence of treatment for a back problem immediately following the accident, and the presence of intervening post-service injuries to the back. Pertinently however, the examiner did not provide an opinion as to whether the Veteran's current disability could be related to the Veteran's other documented complaints of, and treatment for back pain during service. Indeed, a June 10, 1976 treatment report indicates that the Veteran injured his back two months prior in a fight, and complained of back pain with exertion. He also complained of pain in his tail bone, after falling on a cement curb one and a half years prior. He was assessed as having a contusion. A November 7, 1974 treatment report also noted complaints of back pain after a fall two days prior. On remand, the AOJ should schedule the Veteran for an updated spine examination, and obtain an opinion as to whether the Veteran's spine disability is related to service, to include his documented complaints of back pain. Service Connection - Erectile Dysfunction The Veteran asserts he has erectile dysfunction that is caused or aggravated by pain relief medications he takes for his orthopedic disabilities, to include his service-connected right shoulder arthritis. The March 2010 VA examiner identified on page 3 of her report that the Veteran indeed had erectile dysfunction due to "medication." She provided no more specificity. Subsequently, in October 2013, Dr. R.H. signed a statement indicating that the Veteran receives treatment for his right shoulder and "does receive pain medications that could cause erectile dysfunction." Dr. R.H. did not specify the medications that are possibly contributory. An October 2013 VA examiner conversely found no evidence that erectile dysfunction actually exists, but went on to say that one of the Veteran's pain medications, Oxycontin, does not cause sexual dysfunction. On remand the VAJ should schedule the Veteran for another VA examination to determine if the Veteran currently has erectile dysfunction, to clarify his medications, and to identify whether such medications caused or aggravated erectile dysfunction, if present. Increased Rating - Status Post Tonsillectomy The Veteran's tonsillectomy residuals are currently rated noncompensably disabling. He was last evaluated more than five years ago in October 2010. At the time, his service-connected sinusitis was also assessed. The Veteran has recently testified that he loses his voice at times, and when he eats and drinks, food goes up through his nose "because they cut out too much of my throat." See the October 2015 Hearing transcript, at 9. The Veteran submitted an opinion from Dr. T.O. indicating that the Veteran experiences regurgitation of food into the nasopharynx that is likely related to prior uvulopalatopharyngoplasty (UPPP). To some degree, it appears that the Veteran is suggesting that his post-tonsillectomy residuals have worsened in severity since last examination. However, it is unclear to the Board the extent to which any residuals that may exist overlap with symptoms of his service-connected sinusitis, currently rated at 30 percent disabling (and not on appeal). As such, on remand, the AOJ should schedule the Veteran for an updated examination to assess the nature and severity of any tonsillectomy residuals, and to distinguish those from symptoms of his separately service-connected sinusitis disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination to assess the etiology of his left shoulder disability. The claims file should be made available to, and reviewed by the VA examiner. Upon review of the file and examination of the Veteran, the examiner should indicate whether it as at least as likely as not (50 percent or greater probability) that the disability was incurred in, or is otherwise related to his period of active duty service. In providing a response, the examiner should comment upon an August 29, 1976 in-service treatment report noting pain in the shoulders from an automobile accident, as well as the Veteran's post-service evaluations, and his own statements attesting to continuous symptoms since service. Notwithstanding the response to the question above, the examiner should also indicate whether it is at least as likely as not that his left shoulder disability was caused or aggravated beyond its natural progression by another orthopedic disability, to include his service-connected right shoulder disability and/or his cervical spine disability. If aggravation is found, the examiner should also identify the baseline level of severity of the left shoulder disability, to the extent possible. 2. Schedule the Veteran for VA examination to assess the etiology of his lumbar spine disability. The claims file should be made available to, and reviewed by the VA examiner. Upon review of the file and examination of the Veteran, the examiner should indicate whether it as at least as likely as not (50 percent or greater probability) that the disability was incurred in, or is otherwise related to his period of active duty service. In providing a response, the examiner should comment upon service treatment records dated in November 1974 and June 1976 indicating treatment for low back pain and tail bone pain, as well as the Veteran's post-service evaluations, and his own statements attesting to continuous symptoms since service. 3. Schedule the Veteran for VA examination to assess the nature and etiology of his claimed erectile dysfunction. The claims file should be made available to, and reviewed by the VA examiner. Upon review of the file and examination of the Veteran, the examiner should indicate whether the Veteran currently has erectile dysfunction. If no disability exists, the examiner should explain how he or she came to this conclusion. If the Veteran does have erectile dysfunction, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) such dysfunction is caused or aggravated beyond its natural progression by medication taken to treat a service-connected disability- in-particular, his right shoulder disability. If so, the examiner should identify the medication and explain how he or she came to this conclusion. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected status post tonsillectomy residuals. All indicated tests and studies should be performed and all findings should be reported in detail. The claims file should be made available to the examiner for review. To the extent possible, the examiner should distinguish what symptoms constitute residuals of his tonsillectomy, and what symptoms are attributable to his service-connected sinusitis. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the any benefit sought is denied, in whole or in part, the Veteran and his representative should be furnished a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs