Citation Nr: 1645977 Decision Date: 12/07/16 Archive Date: 12/20/16 DOCKET NO. 14-13 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for chronic pharyngitis. 2. Entitlement to an evaluation in excess of 30 percent for bronchial asthma. 3. Entitlement to a compensable evaluation for sebaceous cyst of scrotum. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for malaria. 5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected bronchial asthma. 6. Entitlement to service connection for posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for bilateral upper extremity disability, claimed as peripheral neuropathy of the bilateral upper extremities. 8. Whether there was clear and unmistakable error (CUE) in January 2005 and March 2005 rating decisions, which denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities. 9. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bariatric surgery in September 2006, to include a scar. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in May 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issues of entitlement to an evaluation in excess of 10 percent for chronic pharyngitis; entitlement to an evaluation in excess of 30 percent for bronchial asthma; entitlement to a compensable evaluation for sebaceous cyst of scrotum; entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bariatric surgery; and entitlement to a TDIU 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 a June 1970 rating decision, the RO denied the Veteran's claim of entitlement to service connection for malaria. 2. Evidence associated with the claims file since the June 1970 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to unestablished facts necessary to substantiate the claim of service connection for malaria, and does not raise a reasonable possibility of substantiating the claim of service connection for malaria. 3. Sleep apnea was not present in service, was not present until many years after service discharge, and was not shown to be casually related to service, or to be proximately due to or aggravated by service-connected bronchial asthma, including medications taken for that disability. 4. Evidence of record shows that the Veteran has a current diagnosis of PTSD that is associated with an in-service stressor, which is related to fear of hostile military activity. 5. The Veteran had service in Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides. 6. Resolving all reasonable doubt in the Veteran's favor, evidence of record shows that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper extremities that is casually related to his presumed in-service herbicide exposure. 7. The January 2005 and March 2005, unappealed rating decisions, which denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities, did not involve error that would undebatably lead to a different result if such error was corrected, and were supported by the evidence then of record. CONCLUSIONS OF LAW 1. The June 1970 RO rating decision that denied the Veteran's claim of service connection for malaria is final. 38 U.S.C.A. § 7105(b) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. As evidence received since the RO's June 1970 denial is not new and material, the criteria for reopening the Veteran's claim of service connection for malaria are not met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected bronchial asthma, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 4. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015). 5. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 6. The January 2005 and March 2005 rating decisions, which denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities, did not contain clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.105(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As an initial matter, the decision herein grants entitlement to service connection for PTSD and peripheral neuropathy of the bilateral upper extremities. These awards represent a grant of each specific issue on appeal. Therefore, VA's duties to notify and assist as to those issues are rendered moot. Notice under 38 U.S.C.A. § 5103(a) is also not applicable to the CUE issue on appeal. See Livesay v. Principi, 15 Vet. App. 165 (2001); Baldwin v. Principi, 15 Vet. App. 302 (2001). The general underpinning for the holding is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision). In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). With regard to the Veteran's claim to reopen the matter of entitlement to service connection for malaria, the Veteran was provided a notification letter in November 2010 that satisfied the duty to notify provisions prior to the initial adjudication of this matter in May 2011. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). In the November 2010 letter, issued prior to the initial adjudication of the claim of entitlement to service connection for sleep apnea, the RO also informed the Veteran of what evidence was required to substantiate his claim, of his and VA's respective duties for obtaining evidence, and that a disability rating and effective date would be assigned in the event of an award of any benefit sought. As such, the Board finds VA has satisfied the duty to notify provisions required by the VCAA. VA has also satisfied its duty to assist the Veteran with respect to the new and material evidence claim for malaria and the service connection claim for sleep apnea. The Veteran's service treatment records, service personnel records, private treatment records, and VA treatment records, have been associated with the electronic claims file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). In fact, a September 2009 notice letter from SSA stated that the Veteran was to start receiving monthly retirement benefits in January 2010 which coincided with his turning 62. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. He was also provided with a VA examination in conjunction with the service connection claim on appeal in March 2011 to clarify the nature and etiology of his claimed sleep apnea. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The medical examination and medical opinion obtained by VA in March 2011 is adequate, as it was based upon a complete review of the evidence of record as well as consideration of the Veteran's lay assertions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA is not required to provide a medical examination or opinion to a veteran seeking to reopen a previously and finally disallowed claim unless new and material has been presented. Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); cf. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (finding a standard that would require reopening if the newly submitted evidence along with the other evidence of record, combined with VA assistance raises a reasonable possibility of substantiating the claim). The Veteran in this case is not entitled to a VA examination or opinion, as new and material evidence was not submitted and, as discussed further below, evidence submitted does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for malaria even with VA's assistance. Shade, 24 Vet. App. at 116-18. There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence - Service Connection for Malaria Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly received evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The claim of entitlement to service connection for malaria was originally denied by the RO in a June 1970 rating decision. The RO determined that while the Veteran was treated for episodes of fever with sweats, nausea, headaches, and weakness during service in July 1969, malaria was not found on the last examination in May 1970. The Veteran did not initiate a timely appeal for this matter. There is also no indication that additional evidence was received between June 1970 and June 1971, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the June 1970 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 2010, the Veteran sought to reopen the claim of entitlement to service connection for malaria. This appeal arises from the RO's May 2011 rating decision that found no new and material evidence had been received to reopen the Veteran's claim. Regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Evidence of record received since the last prior final June 1970 rating decision includes VA treatment records dated from 1970 to 2016; private treatment records; VA examination reports dated in 1972, 2000, 2005, 2008, 2011, 2015, and 2016; and written statements from the Veteran and his representative. Evidence received since the June 1970 rating decision is "new" in that it was not of record at the time of the June 1970 rating decision. However, the Board concludes that the evidence which was received since the June 1970 rating decision is not "material". Even when presumed credible, the statements of the Veteran, concerning malaria treatment in service and that the parasite remained inside him, are the same as prior assertions which have already been considered by VA. In the April 2016 Appellant's Brief, the Veteran's representative clearly acknowledged that there was no evidence for activity of malaria noted in post-service medical treatment records. Accordingly, the evidence received since the June 1970 rating decision is cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and does not relate to an unestablished fact, nor does it raise a reasonable possibility of substantiating the claim of entitlement to service connection for malaria. 38 C.F.R. § 3.156(a). As new and material evidence has not been received showing or even suggesting a present disability related to malaria, reopening the claim is not warranted in this instance. Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for malaria are not met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As new and material evidence to reopen the finally disallowed claim has not been received for the issue of entitlement to service connection for malaria, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Claims Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as psychoses, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sleep Apnea The Veteran has asserted his claimed sleep apnea was caused by or aggravated by his service-connected bronchial asthma. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2015). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2015). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between, or chronic aggravation by, the service-connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Entitlement to service connection for sleep apnea on a direct or secondary basis is not warranted. In this case, there is no factual basis in the record that the claimed sleep apnea was incurred during service. Service treatment records do not reflect any complaints, findings, or treatment for sleep apnea. Post-service VA treatment records first showed complaints and findings of a sleep disorder in 2004, over 30 years after the Veteran's separation from active service in 1969. Evidence of record also does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran's claimed sleep apnea and his active military service or his service-connected bronchial asthma. In a March 2011 VA examination report, the Veteran discussed a history of sleep symptoms indicating that his sleep apnea onset in the early 2000s. The Veteran reported that his sleep apnea improved after bariatric surgery and voluntary weight loss, mentioning that he slept better but still snored. Sleep study testing revealed findings of mild-moderate obstructive sleep apnea. After examining the Veteran and reviewing the evidence of record, the examiner diagnosed obstructive sleep apnea and opined that sleep apnea was not caused by, a result of, or aggravated by bronchial asthma. In the stated rationale, the examiner highlighted that the Veteran had a history of morbid obesity in the past with severe sleep apnea requiring use of a CPAP machine. It was noted that based on the current examination and interview of the Veteran, there was evidence that his sleep apnea was significantly improved after bariatric surgery. The examiner then acknowledged that the Veteran still had a large tongue as well as elongated uvula and was still overweight. After discussing how obstructive sleep apnea occurs, the examiner added that there was no evidence in medical literature to support a direct etiological relationship between bronchial asthma and the further development of obstructive sleep apnea. The Board considers the medical opinion in the March 2011 VA examination report of great probative value in this appeal. The VA examiner provided a complete rationale for the stated opinion, based on an extensive examination of the Veteran and a detailed review of the evidence of record. Thereafter, the examiner explained his opinion regarding the Veteran's asserted etiology of his sleep apnea, supporting the opinion by utilizing his medical knowledge, citing to evidence included in the record as well as medical literature to support his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Here, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's currently diagnosed sleep apnea disorder was related to his service-connected bronchial asthma weighs against the claim. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Thus, there is no basis upon which to conclude that the Veteran's currently diagnosed sleep apnea was incurred in or related to military service. There is also no basis upon which to conclude that the Veteran's currently diagnosed sleep apnea was proximately caused by or aggravated by his service-connected bronchial asthma, to include any medications used to treat that disability. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. The only other evidence of record which relates the Veteran's claimed sleep disorder to his service-connected bronchial asthma are his own statements. His statements are competent evidence as to observable symptomatology, including difficulty sleeping. See Barr, 21 Vet. App. at 307. However, the Veteran's statements that his present sleep disorder was proximately caused by or aggravated by his service-connected bronchial asthma draw medical conclusions, which the Veteran has not been shown to have the requisite knowledge to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's sleep apnea falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the VA examiner considered the lay assertions of the Veteran when providing the aforementioned VA medical opinion in March 2011. The criteria to award entitlement to service connection for sleep apnea have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). PTSD The Veteran has asserted that he has PTSD as a result of in-service stressors, to include a combat incident in February 1969 where he defended his base camp from intense enemy attack as well as witnessed his best friend from Puerto Rico, a fellow serviceman, killed in action in April 1969. Service connection for PTSD requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2015). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). See 38 C.F.R. § 3.304(f). For cases certified to the Board after August 4, 2014, a diagnosis of PTSD must be in accordance with the DSM-5. 38 C.F.R. § 4.125 (2015). The Veteran filed his claim for service connection in October 2010 and jurisdiction over the present appeal was conferred to the Board in March 2015. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2015). Service treatment records did not reveal any treatment, findings, or diagnosis of a psychiatric disorder. The Veteran's DD Form 214 and additional service personnel records revealed that his military occupational specialty (MOS) was Tank Crewman, that he received an Army Commendation Medal for heroism in connection with military operations against a hostile force in Vietnam in February 1969, and was stationed in Vietnam in 1969 during active service. Post-service VA treatment records dated from 2008 to 2016 showed complaints and findings of depressive disorder and PTSD. In an April 2011 VA PTSD examination report, the VA examiner, a psychiatrist, indicated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria. Instead, after reviewing the claims file and examining the Veteran, the examiner listed an Axis I diagnosis of depressive disorder not otherwise specified (NOS) and an Axis IV diagnosis of past war experiences and chronic medical condition. In a February 2014 Decision Review Officer decision, the RO awarded entitlement to service connection for depressive disorder NOS, assigning an initial evaluation of 30 percent, effective October 6, 2010. A November 2015 VA PTSD Disability Benefits Questionnaire (DBQ) was later associated with the record. The examiner, a VA psychologist, marked that the Veteran did meet the full criteria for PTSD based on PTSD Diagnostic criteria in DSM-5. The examiner diagnosed chronic, severe PTSD and recurrent, moderate major depressive disorder, noting that it was possible to differentiate what symptoms were attributable to each diagnosis. It was noted that the Veteran's reported stressor of watching his friend and fellow serviceman killed in action in Vietnam was adequate to support the diagnosis of PTSD and related to the Veteran's fear of hostile military or terrorist activity. The examiner found that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was noted that major depressive disorder was a separate diagnosis from PTSD and that criteria for PTSD were not met until now. However, the examiner noted that the Veteran's stressor was the primary cause for the depression and PTSD. The examiner remarked that PTSD was approximately 80 percent of the impairment and major depressive disorder was approximately 20 percent of the impairment. The Board has determined that entitlement to service connection for PTSD is warranted. Based on the evidence of record, the Board finds the Veteran's stressor is corroborated by application of 38 C.F.R. § 3.304(f)(3). Here, the Veteran's alleged stressor is related to his fear of hostile military activity as defined above. The Veteran has asserted that he experienced, witnessed, or was confronted with an event or circumstance that involved a threat to the physical integrity of himself as well as another fellow serviceman. The Board further acknowledges that the Veteran has a current medical diagnosis of PTSD based on that stressor, as shown in the November 2015 VA PTSD DBQ report. In that examination report, the VA examiner diagnosed chronic, severe PTSD, in accordance with the DSM-5, and attributed the diagnosis to the Veteran's reported in-service stressor of watching his friend and fellow serviceman killed in action in Vietnam. The Board is cognizant that the April 2011 VA examiner found that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria. However, the November 2015 VA examiner did diagnose PTSD, clearly noting review of findings in the April 2011 VA examination report and specifically indicating that the Veteran had not met the criteria for PTSD until that time. Under the benefit of the doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall prevail upon the issue. Based on the foregoing discussion and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bilateral Upper Extremity Disability The Veteran has asserted that he has been diagnosed with bilateral upper extremity peripheral neuropathy during the appeal period that is presumptively related to his in-service herbicide exposure while stationed in Vietnam during active service in 1969. A veteran who served in Vietnam is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including early-onset peripheral neuropathy, are deemed service-connected. 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy must be manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and removing the note stating that the term "acute and subacute peripheral neuropathy" meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 54,763 (Sept. 6, 2013). It was further noted that the amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it was noted it does not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after a veteran's last in-service exposure in order to qualify for the presumption of service connection. In addition, regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Based on the Veteran's active duty service in the Republic of Vietnam in 1969 during active service, as documented in his service personnel records, he is presumed to have been exposed to herbicides. While service treatment records are void of any findings or diagnoses of peripheral neuropathy, post-service VA treatment records dated from 1994 to 2016 showed findings of mixed sensory polyneuropathy, rule out carpal tunnel syndrome, bilateral severe upper median nerve entrapment at wrist (carpal tunnel syndrome) with superimposed peripheral neuropathy, idiopathic peripheral neuropathy, peripheral neuropathy disease, and bilateral, severe carpal tunnel syndrome. In a May 2011 VA peripheral nerves examination report, the Veteran complained of pain in his palms. Sensory examination findings of each upper extremity revealed normal pinprick, vibration, and light touch with no dysesthesias. After examining the Veteran and reviewing the record, the examiner diagnosed sensorimotor peripheral neuropathy, axonal and demyelinating. The examiner then opined that "whether or not the peripheral neuropathy is related to the service is as least as likely as not (50/50 probability) caused by or a result of Agent Orange Exposure". In the cited rationale, the examiner, a neurologist, indicated that there was no easy explanation regarding the etiology of the peripheral neuropathy in the non-diabetic Veteran. It was noted that the Veteran's medications for asthma cannot explain the diagnosis. However, the examiner indicated that like all veterans that spent time in Vietnam, the Veteran was directly or indirectly exposed to the dioxins containing the defoliant Agent Orange. The examiner then noted that with such a prolonged half-life, dioxins constituted a threat to humans across time and space. Based on the foregoing, the Board notes that early-onset peripheral neuropathy, a disability that is presumed to be related to in-service herbicide exposure, has not been shown by the evidence of record. However, in view of the totality of the evidence, including the presumed in-service herbicide exposure, the documented findings of bilateral upper extremity peripheral neuropathy during the appeal period, the somewhat general yet ultimately favorable medical opinion provided by the May 2011 VA examiner, and the holding in Combee, the Board has determined that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper extremities that was found to be casually related to his in-service herbicide exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral upper extremity peripheral neuropathy is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CUE RO decisions that are final and binding are accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a); 38 U.S.C.A. § 5109A. The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed and evaluated; or that the statutory or regulatory provisions existing at that 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. Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of error. CUE is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel, 6 Vet. App. at 245 (holding that a valid CUE claim requires that the veteran assert more than a disagreement as to how the facts were weighed or evaluated). Simply claiming CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never satisfy the stringent definition of CUE. Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. 310. Similarly, neither are too broad, general, and unspecified allegations of error based on the failure to follow regulations, failure to give due process, failure to accord benefit of the doubt, failure of duty to assist, and any other general, non-specific claim of "error." Id. If a claimant wishes to reasonably raise a CUE claim, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant also must give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Id. There is a presumption of validity to otherwise final decisions, and the presumption is even stronger where the decision is being collaterally attacked as in a CUE claim. Id. The determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Evidence that was not of record at the time of the decision cannot be used to determine if CUE occurred. See Porter v. Brown, 5 Vet. App. 233 (1993). In a January 2005 rating decision, the RO denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities. Thereafter, the Veteran appeared to file a new claim for the same disability and submitted additional medical evidence, such as February 2005 VA nerve conduction study findings. If new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim." See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). VA is required to provide a "directly responsive" determination as to whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. See Mitchell v. McDonald, 27 Vet. App. 431, 437 (2015); see also Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). Here, in a March 2005 rating decision, the RO again denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities. The Veteran was notified of each decision and did not appeal. Consequently each of those decisions became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this case, the Veteran has not explicitly identified any specific error in either the January 2005 or March 2005 rating decisions in this case that, had it not been made, it would have manifestly changed the outcome. In his October 2010 claim, the Veteran has simply just continued to assert that CUE was committed in denying his claim in a 2005 rating decision, as peripheral neuropathy is a disability warranting service connection on a presumptive basis based upon his in-service herbicide exposure. In the April 2016 Appellant's Brief, the Veteran's representative has also asserted CUE, citing to case law, such as Combee v. Brown, 34 F.3d 1039 (1994), and findings contained in a May 2011 VA peripheral nerves examination report. General and unspecified allegations of error in a "2005" rating decision do not rise to the stringent definition of CUE. In addition, a determination regarding CUE must be made based on the record and the law that existed at the time the decision was made. Evidence, such as the May 2011 VA peripheral nerves examination report, was not of record at the time of the January 2005 and March 2005 rating decisions, and clearly cannot be used to determine if CUE occurred in the January 2005 and March 2005 rating decisions. Moreover, simply claiming CUE on the basis that the previous adjudications had improperly weighed the evidence can never rise to the stringent definition of CUE. Based on the foregoing discussion, the Board finds that the record does not reflect that either the January 2005 or March 2005 rating decision in this case contained CUE regarding the determination made as to entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities. Finally, with regard to CUE motions, the benefit-of-the-doubt doctrine is inapplicable. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313)(it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involve more than a disagreement as to how the facts were weighed or evaluated). ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for malaria; the appeal is denied. Entitlement to service connection for sleep apnea, to include as secondary to service-connected bronchial asthma, is denied. Entitlement to service connection for PTSD is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is granted. The January 2005 and March 2005 rating decisions, which denied entitlement to service connection for idiopathic peripheral neuropathy of the bilateral lower extremities, did not contain CUE; the appeal is denied. REMAND The Board's review of the electronic claims file reveals that further development is warranted for the matters of entitlement to an evaluation in excess of 10 percent for chronic pharyngitis; entitlement to an evaluation in excess of 30 percent for bronchial asthma; entitlement to a compensable evaluation for sebaceous cyst of scrotum; entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bariatric surgery in September 2006; and entitlement to a TDIU on appeal. As an initial matter, following the issuance of the February 2014 statement of the case (SOC), additional evidence, to include a November 2015 VA respiratory conditions examination report, was developed by VA after the certification of the record to the Board in March 2015. Neither the Veteran nor his representative waived review of this evidence. See 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c) (2015). Thus, a remand is required so a supplemental statement of the case (SSOC) may be issued with consideration of all the evidence of record with regard to the increased rating claim for bronchial asthma on appeal. Pursuant to Veteran and his representative's assertions of increased pharyngitis and scrotum sebaceous cyst symptomatology since he was last provided a VA examinations in March 2011, the Board finds that a remand is required in order to afford the Veteran adequate VA examinations. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The issue of entitlement to a TDIU is inextricably intertwined with the remanded increased rating issues and; therefore, adjudication of that matter must be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Furthermore, based on a cumulative review of the record, the Board finds that the evidence of record contains insufficient information to make an adequate determination as to whether the Veteran's service-connected disabilities, alone or in aggregate, prevent him from obtaining and retaining substantially gainful employment. As such, the Board finds that a remand is warranted in order to afford the Veteran an additional VA examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the record before the Board contains insufficient medical information for evaluation purposes). In addition, the record only contains assorted San Juan VAMC and Mayaguez VAOPC treatment records dated from 1970 to 2016. Therefore, on remand, updated VA treatment records, from San Juan VAMC, to include all associated outpatient clinics, should be obtained and associated with the electronic claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Finally, the Board also finds it necessary to remand the matter of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of bariatric surgery in September 2006 for further development. Evidence of record is not clear as to whether the Veteran underwent bariatric surgery at a VA facility or a private facility in September 2006. In a February 2007 VA treatment record, the Veteran came in with private fee basis referral for follow up after bariatric surgery. In an addendum, the Veteran was noted to have recent history of bariatric surgery and was followed by bariatric surgery, presenting with right upper quadrant pain after surgery. It was noted that the Veteran needed renewal of fee basis for bariatric surgeon. Thereafter, in the March 2011 VA general medical examination report, the Veteran indicated that he had bariatric surgery in September 2006 and reconstructive plastic surgery in 2008 at Hospital Menonita in Cayey, Puerto Rico. The AOJ should contact the Veteran to obtain clarification of where the September 2006 bariatric surgery was performed and whether it was a fee-based procedure paid for by VA. Thereafter, obtain any available treatment records for the Veteran's September 2006 bariatric surgery from the identified source. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records, from San Juan VAMC, to include all associated outpatient clinics, dated from September 2005 to September 2006 and from October 2010 to the present, and associate these records with the electronic claims file. All attempts to obtain these records must be documented in the electronic claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Contact the Veteran to obtain clarification of where the September 2006 bariatric surgery was performed and whether it was a fee-based procedure paid for by VA. Thereafter, obtain any available treatment records for the Veteran's September 2006 bariatric surgery and associate these records with the electronic claims file. All attempts to obtain these records must be documented in the electronic claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Obtain a clinical opinion addressing the section 1151 claim, based on review of the claims file. Arrange for the Veteran to undergo VA examination if, in the judgment of the designated physician, one is needed to provide the requested opinion. The contents of the entire, electronic claims file (in VBMS and/or Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the opinion/examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should identify all additional residual disabilities of bariatric surgery in September 2006, to include a scar, and follow-up treatment. Provide an opinion consistent with sound medical judgment, as to whether it is at least as likely as not that identified additional disabilities due to bariatric surgery in September 2006 was due to (a) carelessness, negligence, or lack of proper skill, error in judgement, or similar instance of fault on the part of VA, OR (b) an event not reasonably foreseeable from the VA treatment. The examiner must provide an opinion regarding both (a) and (b). All examination findings (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. Thereafter, schedule the Veteran for a VA medical examination to determine the current nature and severity of his service-connected chronic pharyngitis. The electronic claims file must be made available to the examiner for review and the examiner must note that the claims file was reviewed. Any indicated tests and studies must be completed. Rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA medical examination to determine the current nature and severity of his service-connected scrotum sebaceous cyst disability. The electronic claims file must be made available to the examiner for review and the examiner must note that the claims file was reviewed. Any indicated tests and studies must be completed. Rationale for all opinions expressed must be provided. 6. Thereafter, a VA medical examination must be obtained to determine whether the functional effects of the Veteran's service-connected disabilities, alone or acting in concert, preclude him from securing and following substantially gainful employment, consistent with his education and occupational expertise. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must also elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the functional effects of the Veteran's service-connected disabilities, acting alone or in concert, prevent him from obtaining or retaining employment consistent with his education and occupational experience, irrespective of his age and any nonservice-connected disorders, at any time during the time period from October 2010 to the present. The VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. The examiner must furnish a full description of the effects of the service-connected disabilities on the Veteran's ordinary activities, which include employment. This description may include an opinion on such questions as whether the Veteran's service-connected disabilities preclude standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should acknowledge and discuss the functional impact findings contained in the March 2011, May 2011, November 2015, and January 2016 VA examination reports of record. Rationale for all opinions expressed must be provided. 7. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). 8. After undertaking any other development deemed appropriate, readjudicate the issues on appeal in consideration of all evidence since the issuance of the February 2014 SOC. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs