Citation Nr: 1337934 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-16 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected obstructive sleep apnea. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected gastroesophageal reflux disorder (GERD). 3. Entitlement to an initial compensable disability rating for service-connected hypertension. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a skin disorder. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to an effective date earlier than February 25, 2010, for the grant of service connection for GERD. 8. Whether there was clear and unmistakable error (CUE) in an August 22, 2007, rating decision that denied entitlement to service connection for GERD. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from October 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California. In August 2007, the RO denied service connection for a skin and left knee disorders. The Veteran filed a notice of disagreement in May 2008 and the RO issued a Statement of the Case in March 2009. The Veteran filed a substantive appeal in April 2009. In December 2008, the RO granted service connection for hypertension, rated as noncompensable, and denied service connection for bilateral hearing loss. The Veteran filed a notice of disagreement with the initial disability rating for the hypertension and the denial of service connection for hearing loss in January 2009, and in April 2010, the RO issued a Statement of the Case. The Veteran filed a substantive appeal in May 2010. In March 2009, the RO granted service connection for obstructive sleep apnea, rated at 50 percent. In April 2009, the Veteran filed a notice of disagreement with respect to the initial disability rating, and in February 2010, the RO issued a Statement of the Case. The Veteran submitted a substantive appeal in March 2010. In June 2010, the RO granted service connection for GERD, rated as 10 percent. In July 2010, the Veteran filed a notice of disagreement with the initial disability rating, and in November 2010, the RO issued a Statement of the Case. The Veteran submitted a substantive appeal in December 2010. In December 2010, the Veteran filed a statement claiming an effective date earlier than of February 25, 2010, for the grant of service connection for GERD. He also indicated that the August 2007 rating decision denying service connection for GERD contained CUE. In March 2012, the RO denied the CUE claim, and in July 2012, the Veteran filed a notice of disagreement. The RO issued a Statement of the Case in July 2012, and the Veteran submitted a substantive appeal in July 2012. With respect to the earlier effective date claim, the RO did not issue a rating decision. Rather a Statement of the Case was sent to the Veteran, dated in January 2012, and the Veteran filed a substantive appeal in January 2012. In this case, the Board notes that the claims for higher initial disability ratings remain in controversy because the ratings assigned remain less than the maximum available benefits awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issues of service connection for service connection for skin and left knee disorders, for higher disability ratings for obstructive sleep apnea and GERD, and for an earlier effective date for service-connected GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACTS 1. Throughout the period on appeal, the Veteran's hypertension has not been shown to be productive of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, nor has there been a showing that he has a history of diastolic pressure predominantly 100 or more with required use of continuous medication for control. 2. The Veteran does not have a hearing loss disability for VA compensation purposes. 3. In an unappealed rating decision of August 2007, the RO denied service connection for GERD; the rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for hypertension have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.104, Diagnostic Code 7101 (2013). 2. The criteria for the establishment of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.385 (2013). 3. There was no CUE in the August 2007 rating decision in that it denied service connection for gastroesophageal reflux disorder, and that decision remains final based on the laws and regulations then in effect. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's initial rating claims arise from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA. As noted, the VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. However, a motion to reverse or revise a final decision on the basis of CUE is not a claim for benefits, but is rather a collateral attack on that decision. While CUE, when demonstrated, may result in reversal or revision of a final decision on a claim for benefits, it is not by itself a claim for benefits under parts II or III of title 38, which govern the benefits available under the laws administered by VA. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Whether there is CUE in a rating decision must be based on the record and law that existed at the time of the prior adjudication in question, and therefore the notice and duty to assist provisions under the VCAA are not applicable. Id.; see 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In this regard, it is noted that "CUE claims are not conventional 'appeals,' but rather are requests for revisions of previous decision[s]." Disabled American Veterans (DAV) v. Gober, 234 F.3d 682, 694 (Fed.Cir.2000) (citing Haines v. West, 154 F.3d 1298, 1300 (Fed.Cir.1998)). Here, the Veteran was sent letters dated in March 2007, November 2008, July and August 2009, March and September 2010, January 2011, and January 2012 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Disability Rating for Hypertension Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran's hypertension is currently rated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101. In every instance in which the Ratings Schedule does not provide a zero percent disability rating for a diagnostic code, a zero percent shall be assigned when the requirements for a compensable disability rating are not met. 38 C.F.R. § 4.31. Under Diagnostic Code 7101, a 10 percent disability rating requires diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or that an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent disability rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent disability rating requires diastolic pressure predominantly 120 or more. A 60 percent disability rating require diastolic pressure predominantly 130 or more. Review of the medical evidence of record fails to demonstrate that the Veteran's diastolic pressure has been predominantly 100 or more, his systolic pressure has been predominantly 160 or more, or that he had required continuous medication for a history of diastolic pressure predominantly 100 or more. For example, private treatment records dating from March 2006 to August 2006 indicate blood pressure readings of 124/80, 142/82, 136/98, 131/80, 140/102, 138/104, 136/78, and 120/80. VA treatment records dated in October 2011 and November 2011 indicated blood pressure readings of 136/84, 142/94, and 144/90. One October 2011 reading was 166/88. Home readings were indicated to be 125-138/82-93. The VA treatment records indicate that the Veteran was not taking medication. A VA examination dated in October 2009 indicated that, while the Veteran had been taking medication for hypertension in service, he was not taking medication for his condition at that time. Blood pressure readings in the examination were 144/67, 148/70, and 140/67. A VA examination report dated in January 2012 found that the Veteran was taking medication for his hypertension. Blood pressure readings were 120/80, 120/78, and 120/78. Based on a review of the complete evidence of record, the Board concludes that a compensable disability rating for hypertension under Diagnostic Code 7101 is not warranted. The medical evidence demonstrates that the Veteran's blood pressure readings throughout the period on appeal more closely approximate the criteria for the current noncompensable rating. Specifically, the Board notes that for most of the appeal period the Veteran was not taking medication for his hypertension. Recently he was noted to be back on medication. However, there is no indication that he ever had predominant diastolic readings of 100 or more, or predominant systolic readings of 160 or more. For these reasons, the Board concludes that the Veteran's hypertension does not more nearly approximate the criteria for a compensable disability rating. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's hypertension. However, the Board finds that his symptomatology was stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. Finally, the Board finds that the Veteran's hypertension does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's hypertension is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. Service Connection for Bilateral Hearing Loss Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as organic diseases of the nervous system, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). In this case, the Veteran's service treatment records do not indicate that the Veteran had hearing loss in service. In addition, there is no record of hearing loss within one year of service. In order to determine whether the Veteran has bilateral hearing loss that is related to his active service, he was afforded a VA examination in September 2009. The Veteran reported working in aviation maintenance in service. Hearing protection was used when required. He denied significant non-military noise exposure. Upon examination, the Veteran was not found to have hearing loss for VA purposes in either ear as defined by 38 C.F.R. § 3.385. He was diagnosed as having hearing within normal limits, bilaterally. Word recognition ability was indicated to be excellent, bilaterally. The examiner stated that there was no bilateral hearing loss significant for VA purposes or related to in-service noise exposure. The Veteran's outpatient treatment records were reviewed. One audiogram was found, but this also did not show test results indicating hearing loss for VA purposes. In this case, the Board notes that the September 2009 VA examiner did not examine the Veteran claims file in connection with his examination and report. In such a case, remand for review and comment on the claims file would usually be warranted. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). However, in this case, a review of the claims file would not change the objective testing results indicating no current hearing loss for VA purposes. In this regard, the Board notes that the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file. As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record. Id. A review of the Veteran's claims file, while desirable, is not necessary in this case to successfully evaluate the Veteran's claim. Based on the foregoing, the Board finds that entitlement to service connection is not warranted for bilateral hearing loss. The Veteran has not exhibited a hearing loss disability for VA compensation purposes either in service or since separation from active duty. Absent a showing of current disability, service connection is not for application. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds that the VA medical opinion, based as it was on an examination of the Veteran, is most probative in this case. In this regard, the Board notes that the Veteran has contended on his own behalf that he has hearing loss related to his active service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau, 492 F.3d at 1377 (lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Board further finds that questions regarding the diagnosis of a disability and the relationship between such disability and military service are complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such a complex medical question. In summary, the Board concludes that the preponderance of the evidence is against finding that the Veteran has hearing loss that is etiologically related to his military service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. CUE in August 2007 Rating Decision Under 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 131-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.104(a); 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310. 313-14 (1992) (en banc)). The laws and regulations at the time of the August 2007 rating decision provided that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection could also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection could be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally required (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 C.F.R. § 3.303(a). The Veteran alleges that the RO committed CUE in an August 2007 rating decision in denying service connection for GERD. A review of the applicable law and regulations, as well as the facts, as they were known in August 2007, does not demonstrate that the decision contains an obvious error of fact or law. The August 2007 rating decision determined that the Veteran had not provided medical evidence establishing continuity of GERD since discharge from service or evidence of a clinical diagnosis linking this condition to any related condition in service. The medical evidence at the time of the August 2007 rating decision indicated that the Veteran had heartburn and painful stomach, but no nausea or vomiting. The clinical assessment was GERD/abdominal cramping. Post service medical records at the time of the August 2007 rating decision did not indicate a current diagnosis of or treatment for GERD. Denying service connection on the basis of the evidence before the RO in August 2007 was not an undebatable error. Based on the foregoing, the Board finds that the August 2007 rating decision was consistent with, and supported by, the evidence of record; was in accordance with governing law and regulation in effect at that time; and did not involved CUE. ORDER An initial compensable disability rating for service-connected hypertension is denied. Service connection for bilateral hearing loss is denied. The appeal to establish CUE in an August 2007 rating decision, which denied service connection for GERD, is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). First, with respect to the Veteran's claim for an earlier effective date for the grant of service connection for GERD, the RO issued no rating decision with respect to this issue. Rather, the RO issued a Statement of the Case dated in January 2012, and the Veteran filed a substantive appeal in January 2012. The Board finds that the January 2012 Statement of the Case is the first adjudication of this issue by the RO and, therefore, the January 2012 substantive appeal should be viewed as the Veteran's notice of disagreement with this decision. Subsequent to January 2012, the RO has not issued to the Veteran an additional Statement of the Case with respect to this issue. Inasmuch as the RO has not furnished the appellant a Statement of the Case in proper order that addresses this issue, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). With respect to the issue of higher disability ratings for service-connected obstructive sleep apnea and GERD, the Board notes that the last examinations afforded the Veteran in connection with these claims date to October 2009 and May 2010, respectively. Since that time, the Veteran has continued to assert that his conditions warrant a higher disability rating. Because the examinations of the Veteran for his claimed obstructive sleep apnea and GERD are over four and three years old, respectively, and because the Veteran has continued to assert that these conditions are worse than reflected in their current disability ratings, the Board finds that the Veteran should be afforded contemporaneous VA examinations in order to determine the current levels of severity. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). With respect to the issues of entitlement to service connection for a skin disorder and a left knee disorder, the Board notes that during active service, the Veteran was found to have a six month history of enlarging hypopigmented plaques on the dorsum of his hand. There was no improvement with topical steroids or anti-fungals. After service, in June 2006, the Veteran was noted to have complaints of a rash all over his body. He was diagnosed with acute urticaria. With respect to his left knee, a May 2000 treatment note indicated complaints of left knee pain with swelling due to injury playing a game. The Veteran was diagnosed with possible ACL left knee tear with probable left medial meniscus tear. The Veteran was noted to have two months left knee pain due to Frisbee accident. He was diagnosed with hyperextension injury, not resolving, medial collateral ligament strain. In a follow-up appointment in June 2000, the Veteran was diagnosed with probable left medial meniscus tear and partial medial collateral ligament tear and failed conservative therapy. July 2000 treatment records note an injury playing Frisbee football in February 2000 with a diagnosis of medial collateral ligament tear. The Veteran underwent surgery in August 2000. In September 2000, a post-operative left knee scope indicated normal examination. The Veteran's separation examination noted left knee injury, normal diagnostic arthroscopy. Since service, the Veteran's VA treatment records indicate that the Veteran has recently sought treatment for chronic left knee pain. The Veteran was not afforded a VA examination in connection with these claims. Based on the foregoing, the Board finds that a VA examination and opinion are necessary to determine whether the Veteran has a current skin disability or left knee disability, at any time since 2007, that was caused or aggravated by his active service. In this regard, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong of 38 C.F.R. § 3.159(c)(4)(I), which requires that the evidence of record 'indicate' that the claimed disability or symptoms may be associated with service, establishes a low threshold); see also Locklear v. Nicholson, 20 Vet. App. 410 (2006). Upon remand, the RO should afford the Veteran an opportunity to submit additional medical evidence relevant to his claims that may not be associated with the claims file. Updated treatment records from VA should also be obtained. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO shall furnish the Veteran a Statement of the Case regarding the issue of entitlement to an earlier effective date for the grant of service connection for GERD, to include notification of the need, and the appropriate time period, in which to file a substantive appeal to perfect the issue, in accordance with 38 C.F.R. § 19.30. 2. The RO shall take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disabilities. This shall specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 3. The RO shall afford the Veteran a VA examination or examinations in order to assess the current nature and severity of his service-connected obstructive sleep apnea and GERD. The Veteran 's claims file must be made available to the examiner for review in conjunction with the examination. The examiner must state that the examination report that the claims file was reviewed. With respect to obstructive sleep apnea, the examiner shall render findings as to whether the Veteran's disability: (i) is asymptomatic but with documented sleep disorder, (ii) is persistent, with day-time hypersomnolence, (iii) requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine, (iv) manifests chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. With respect to GERD, the examiner shall render findings as to whether the Veteran's disability is productive of: (i) persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and/or productive of considerable impairment of health, or (ii) symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The examiner shall also indicate the effect each disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. The RO shall arrange for an appropriate VA examination for the purpose of determining whether the Veteran has had a diagnosed skin disability or a left knee disability at any time since 2007, and whether such conditions are related to the Veteran's period of active service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Is it at least as likely as not that the Veteran has been diagnosed with a skin disorder or a left knee disorder at any time since 2007? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has been diagnosed with a skin disorder or left knee disorder since 2007, is it at least as likely as not that such disorder had its onset during active service, within one year of separation from active service, or otherwise caused by or aggravated by the Veteran's active service? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records, including records contained in the Veteran's virtual file. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a skin disorder or a left knee disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The rationale for any opinion offered must be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 5. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2013). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs