Citation Nr: 19123733 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 15-14 716 DATE: April 2, 2019 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for Hepatitis C is denied Entitlement to a disability rating in excess of 10 percent for diabetes mellitus type II is denied. Entitlement to a disability rating in excess of 30 percent for left brachial plexus injury is denied. REMANDED Entitlement to service connection for bilateral knee conditions is remanded. Entitlement to service connection for a lower spine condition, to include as secondary to service connected left brachial plexus injury is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service connect left brachia plexus injury and non-service connected lower spine condition is remanded. Entitlement to service connect for special monthly pension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s current hypertension is etiologically-related to his active service. 2. The preponderance of the evidence is against a finding that the Veteran’s claimed Hepatitis C is etiologically-related to his active service. 3. Throughout the rating period on appeal, the Veteran’s diabetes has resulted in oral medication, but has not required a restricted diet. 4. The Veteran’s left brachial plexus injury is manifested by no more than moderate incomplete paralysis of all radicular groups. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for Hepatitis C have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. The criteria for an initial disability rating in excess of 10 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.21, 4.119, Diagnostic Code 7913 (2018). 4. The criteria for an initial rating in excess of 30 percent for left brachial plexus injury have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8513 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 t0 February 1969. In his substantive appeal (VA Form 9), the Veteran requested the opportunity to testify at a video conference hearing before a Veterans Law Judge. The requested hearing was scheduled for November 2, 2018, and a letter was mailed to the Veteran notifying him of the date and time of the hearing. The Veteran did not appear for the hearing. Moreover, despite submitting a November 20, 2018 Informal Hearing Presentation, neither the Veteran nor his representative has asked that the hearing be rescheduled or suggested that there is good cause to reschedule the hearing. When an appellant receives notice of a Board hearing and then fails to appear for the scheduled hearing, the case is processed as though his hearing request had been withdrawn. See 38 C.F.R. § 20.702 (b), (d) (2017). Accordingly, this case may proceed without a hearing. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303 (a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Additionally, for the chronic diseases listed in 38 C.F.R. § 3.309 (a), if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in 38 U.S.C. § 1101 § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period”). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). 1. Entitlement to service connection for hypertension The Veteran has asserted that service connection is warranted for hypertension, as generally related to his active service. A review of the Veteran’s service treatment records (STR), including multiple examinations while in service, are otherwise silent for any complaints, treatment, or diagnosis related to hypertension. Specifically, during the Veteran’s January 1967 entrance examination and January 1969 separation examination, it was determined that the Veteran did not have shortness of breath, pain or pressure in chest, palpitation or pounding heart, high or low blood pressure, cramps in his legs or frequent indigestion. During his January 1967 enlistment examination his heart was also found to be normal. A May 1978 examination also found his heart to be normal. A review of the Veteran’s claims files and post-service treatment records shows that he was first diagnosed with hypertension in 2001, over 30 years after his separation from active duty service. As hypertension was not initially manifested within one year of his discharge from active service, service connection is not warranted on a presumptive basis. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 708 F.3d 1335 -37. With regard to nexus, there is no competent evidence of record establishing a relationship between any of the Veteran’s claimed condition and his period of active service. Holton, 557 F.3d at 1366; see also 38 C.F.R. § 3.303 (a), (d). The Board acknowledges that no medical examination has been conducted and that no medical opinion has been obtained with respect to the Veteran’s service connection claim for hypertension. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). While the Board has considered the Veteran’s lay assertions, the standards of McLendon are not met in this case. There is no allegation of treatment for or symptoms of any of the claimed conditions during the Veteran’s active service. Thus, there is no in-service disease, injury, or event to which the Veteran’s currently diagnosed hypertension could be related. Although the Veteran is service connected for diabetes mellitus, type II, during an October 2015 VA diabetes examination, it was determined that the Veteran did not have hypertension that was at least as likely as not (at least 50 percent probability) due to diabetes mellitus. In essence, there is no probative or credible evidence of an in-service disease or injury for the claimed issue, and no credible evidence of persistent/recurrent symptoms since service. Therefore, a VA examination and opinion is not warranted for his hypertension claim. Absent such medical evidence of a nexus, service connection is not in order for the Veteran’s hypertension. Regarding lay evidence of a nexus between his current hypertension and his military service, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran’s general allegations that this claimed condition is related to military service are unsupported by the evidence of record. The weight of the evidence does not show that the Veteran’s hypertension was either incurred in or caused by his military service. Thus, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for hypertension and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran’s claim for service connection for hypertension is denied. 2. Entitlement to service connection for Hepatitis C The Veteran has asserted that service connection is warranted for Hepatitis C, as generally related to his active service. A review of the Veteran’s STRs, including multiple examinations while in service, are otherwise silent for any complaints, treatment, or diagnosis related to Hepatitis C. Specifically, during the Veteran’s January 1967 entrance examination and January 1969 separation examination, it was determined that the Veteran did not have swollen or painful joints, jaundice, stomach or liver trouble, or a drug or narcotic habit. During his January 1967 enlistment examination his abdomen and viscera were also found to be normal. A May 1978 examination also found his abdomen and viscera to be normal. His claimed Hepatitis C is not enumerated in the relevant statutes as VA-defined chronic diseases. Accordingly, the Veteran is not entitled to service connection for Hepatitis C on a presumptive basis. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 708 F.3d 1335 -37. A review of the Veteran’s claims files and post-service treatment records shows that in May 2004 he denied a history or Hepatitis. However, in May 2006, a VA treatment record noted a history of hepatitis corantibody positive in the past. He was tested for Hepatitis-A, Hepatitis-B, and Hepatitis-C panels. His liver enzymes were normal. In March 2018 a VA treatment record found an evaluation for other causes of liver disease including alpha 1 anti-trypsin, hemochromatosis, autoimmune hepatitis, primary biliary cirrhosis and viral hepatitis were unremarkable. The Veteran’s Hepatitis B tests suggested he had exposure to Hepatitis B in the past but fought off the virus successfully With regard to nexus, there is no probative medical evidence of record establishing a relationship between the Veteran’s claimed condition and his period of active service. Holton, 557 F.3d at 1366; see also 38 C.F.R. § 3.303 (a), (d). The Board acknowledges that no medical examination has been conducted and that no medical opinion has been obtained with respect to the Veteran’s service connection claim for Hepatitis C. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). While the Board has considered the Veteran’s lay assertions, the standards of McLendon are not met in this case. There is no allegation of treatment for or symptoms of any of the claimed conditions during the Veteran’s active service. Thus, there is no in-service disease, injury, or event to which the Veteran’s claimed Hepatitis C could be related. In essence, there is no probative or credible evidence of an in-service disease or injury for the claimed issue, and no credible evidence of persistent/recurrent symptoms since service. Therefore, a VA examination and opinion is not warranted for his Hepatitis C claim. Absent such medical evidence of a nexus, service connection is not in order for the Veteran’s claimed Hepatitis C. Regarding lay evidence of a nexus between his claimed Hepatitis C and his military service, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran’s general allegations that this claimed condition is related to military service are unsupported by the evidence of record. The weight of the evidence does not show that the Veteran’s claimed Hepatitis C was either incurred in or caused by his military service. Thus, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for Hepatitis C and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran’s claim for service connection for Hepatitis C is denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 3. Entitlement to a disability rating in excess of 10 percent for diabetes mellitus type II Throughout the period on appeal, the Veteran has been afforded an initial disability rating of 10 percent for his service connected diabetes mellitus, type II, under Diagnostic Code (DC) 7913. Under DC 7913, a rating of 10 percent is assigned for diabetes that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted when the diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is warranted if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, n. 1. The Court has held that, in order to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). Also, the Board observes that the rating criteria contained in DC 7913 are “successive.” That is, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth. Accordingly, under this and other diagnostic codes that are successive, consideration of 38 C.F.R. § 4.7 is not required. See Camacho, 21 Vet. App. at 366. In fact, the Federal Circuit has held that if disability rating criteria are written in the conjunctive and are successive, “a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation,” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In the instant case, each separate element (insulin and restricted diet) must be met for the Veteran to meet the criteria for the next rating step, 20 percent. See Middleton, 727 F.3d 1172; see also 38 C.F.R. § 4.119, DC 7913. The Veteran has plainly stated that he is entitled to a 20 percent disability rating for his service connected diabetes mellitus, type II. In a March 2008 Statement in Support of Claim, the Veteran wrote that he took oral medication and was on a restricted diet. Prior to this Statement in Support of Claim, a June 2007 VA treatment record noted that the Veteran reported following dietary restrictions in relation to his diabetes mellitus. However, it was also noted that the Veteran had not seen diabetic education. In October 2015 the Veteran underwent a VA diabetes mellitus examination and was diagnosed with diabetes mellitus, type II. Treatment for his diabetes mellitus, type II included only prescribed oral hypoglycemic agent(s). Although given the option, the examiner did not note that the Veteran’s condition was managed by a restricted diet. Furthermore, it was specifically noted that his diabetes mellitus, types II did not require the regulation of activities. The frequency of his diabetic care was less than two times per month and he had not been hospitalized in the past 12 months for ketoacidosis or hypoglycemia. He also did not experience loss of strength and weight. It was determined that the Veteran had erectile dysfunction attributable to his diabetes. However, the Veteran has been afforded a separate disability rating for this condition. The examiner also determined that the Veteran’s diabetes mellitus, type II, did not have a functional impact on his ability to work. In light of the foregoing, the Board concludes that the criteria for an initial disability rating in excess of 10 percent are not met, as the weight of the evidence does not show that his diabetes resulted in the need for a restricted diet as contemplated by a higher rating. As noted earlier, a 20 percent rating is warranted when insulin and a restricted diet are prescribed by a medical professional. The Board has also considered the Veteran’s lay statements that his disability is worse than it is currently evaluated. The Veteran is competent to testify what symptoms he is experiencing. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). But, he cannot offer a lay opinion as to the specific level of disability of this disorder according to the appropriate diagnostic codes. Id. There is no evidence of record that a doctor has prescribed or suggested a restricted diet, which is a necessary element of the criteria for the next, 20 percent rating. 38 C.F.R. § 4.119, DC 7913. Furthermore, lay assertions would not be legally competent for identification of proper treatment, including a restricted diet, for diabetes mellitus, type II. See Camacho, 21 Vet. App. at 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1733, n.4 (lay persons not competent to diagnose cancer). Accordingly, the Board concludes that a disability rating of 20 percent is not warranted for the Veteran’s diabetes. In the absence of evidence of a restricted diet, the criteria for the next, 20 percent rating have not been met at any time during the appeal period. 38 C.F.R. § 4.119, DC 7913. Ultimately, the weight of the evidence clearly establishes that the Veteran is entitled to a disability rating of 10 percent for his diabetes under DC 7913, throughout the entire period on appeal. 4. Entitlement to a disability rating in excess of 30 percent for left brachial plexus injury The Veteran filed a claim for a disability rating in excess of 30 percent for his service connected left brachial plexus injury in June 2005. He was previously denied an increased disability rating in a February 2002 rating decision, but the Veteran did not file a notice of disagree or new and material evidence within one year of that decision, and therefore it became final. His 30 percent disability rating is effective May 8, 2000. It must also be noted that the Veteran is also in receipt of a separate 10 percent rating for his service connected left shoulder degenerative joint disease with left brachial plexus injury under DC 5013. However, that condition is not current before the Board. The Veteran is currently assigned a 30 percent rating for his service-connected left brachial plexus injury according to 38 C.F.R. § 4.124a, Diagnostic Code 8513 under the General Rating Formula for Neurological Conditions and Convulsive Disorders, using the minor side ratings. In determining the degree of functional impairment caused by an upper extremity disability, an adjudicator must focus on whether the disability at issue involves the major or minor extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. The medical evidence in this case indicate that the Veteran is right-handed. Diagnostic Code 8512 provides the rating criteria for paralysis of the lower radicular group, and therefore, neuritis and neuralgia of the lower radicular group. 38 C.F.R. § 4.124a. Under Diagnostic Code 8512, a 30 percent rating is warranted for moderate incomplete paralysis of the lower radicular group of the minor extremity and a 40 percent rating is warranted for moderate incomplete paralysis of the lower radicular group of the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the lower radicular group of the minor extremity and a 50 percent rating is warranted for severe incomplete paralysis of the lower radicular group of the major extremity. When there is complete paralysis of the lower radicular group, involving all intrinsic muscles of the hand, and some or all flexors of the wrist and fingers, wherein the paralysis results in the substantial loss of use of the extremity, a maximum 60 percent disability rating is warranted for the minor extremity, and a maximum 70 percent rating is warranted for the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Diagnostic Code 8513 provides the rating criteria for paralysis of all the radicular groups, and therefore, neuritis and neuralgia of all the radicular groups. 38 C.F.R. § 4.124a. Under Diagnostic Code 8513, a 30 percent rating is warranted for moderate incomplete paralysis of all the radicular groups of the minor extremity and a 40 percent rating is warranted for moderate incomplete paralysis of all the radicular groups of the major extremity. A 60 percent rating is warranted for severe incomplete paralysis of all the radicular groups of the minor extremity and a 70 percent rating is warranted for severe incomplete paralysis of all the radicular groups of the major extremity. A maximum 80 percent disability rating is warranted for complete paralysis of all the radicular groups of the minor extremity and a maximum 90 percent rating is warranted for complete paralysis of all the radicular groups of the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Diagnostic Codes 8514, 8515, and 8516, contemplate impairment of the radial nerve, median nerve, and ulnar nerve, respectively and do not provide for higher ratings for the disability at issue than that provided by Diagnostic Code 8513. See 38 C.F.R. § 4.124a. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. 38 C.F.R. § 4.124a, note following Diagnostic Code 8719. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild degree, or at most, the moderate degree. Id. The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Based on the evidence, the Board finds that the Veteran is entitled to a disability rating of 30 percent throughout the appellate period for his left brachial plexus injury symptoms, as there is no indication of complete or severe, incomplete paralysis. In October 2006 the Veteran underwent a private left brachial plexus examination. He was noted as right hand dominate (major). The Veteran complained of tingling and numbness, constant pain, weakness, loss of sensation, and paralysis of the affective parts. He was unable to hold objects using his left hand or arm. His pain was located in the neck, shoulder and left leg. Pain characteristics were aching, burning, sharp, oppressing and cramping and was noted as 10/10. Pain was elicited with physical activity and stress. It was relieved with medication. Left shoulder flexion was 20 degrees, abduction to 20 degrees, and external and internal rotations to 20 degrees. Range of motion of the left shoulder was additionally limited secondary to pain, weakness and lack of endurance. However, it was not limited secondary to fatigue or incoordination. The examiner noted that general appearance of the bilateral wrists was within normal limits. Range of motion of the right wrist dorsiflexion was 70 degrees, palmar flexion was 80 degrees, radial deviation was 20 degrees, and ulnar deviation was 45 degrees. Left wrist dorsiflexion was 60 degrees, palmar flexion is 60 degrees, and radial deviation and ulnar deviations were 20 and 40 degrees. Range of motion of the wrists was limited secondary to pain. In regard to his hands and fingers, the Veteran was able to tie shoelaces, fasten buttons, and pick up a piece of paper and tear it with both hands with difficulty. His hands strength was moderately reduced on the left. Range of motion of the right-side thumb was as follows: Radial abduction was 70 degrees, palmar abduction was 70 degrees, MP flexion and IP flexion were 60 degrees. Range of motion of the right-side index finger, middle finger, ring finger, and little finger were as follows: PIP flexion was 110 degrees, MP flexion was 90 degrees, and DIP flexion was 70 degrees. Range of motion of the right-side fingers were not additionally limited secondary to pain, fatigue, weakness, lack of endurance, or incoordination. Range of motion of the left side thumb was as follows: Radial abduction was 60 degrees, palmar abduction was 60 degrees, MP flexion was 20 degrees, and IP flexion was 30 degrees. Range of motion of the left side index finger, middle finger, ring finger, and little finger were as follows: PIP flexion is 20 degrees and DIP flexion is 20 degrees. Range of motion of the right-side thumb, index finger, middle finger, ring finger, and little finger are additionally limited secondary to pain, weakness, and fatigue after repetitive movement at the degrees mentioned above. However, they were not limited secondary to lack of endurance or incoordination. Neurological testing showed that motor function on the left was abnormal and rated as 3/5. Sensory function was abnormal with decreased monofilament sensory testing. Reflexes of the bilateral biceps and triceps were 1+ on the right and 0 on the left. An x-ray of the left shoulder showed mild degenerative changes. An October 2006 left shoulder imaging study found normal bones, but mild moderate degenerative changes of the acromioclavicular joint. The glenohumeral joint appeared to be relatively well preserved. There was a very small marginal osteophyte projecting off the medial articular margin of the humeral head. Soft tissues were normal. It was concluded that there were mild-moderate degenerative changes involving the acromioclavicular and glenohumeral joints. In August 2017 the Veteran underwent a VA shoulder and arm condition examination. The Veteran was diagnosed with left brachial plexus injury, left glenohumeral joint osteoarthritis and left acromioclavicular joint osteoarthritis. He continued to be considered right hand dominant. During the examination the Veteran stated that he experienced loss of strength and function in the left upper extremity. He also had numbness of the left arm. He also had pain in the shoulder with flare ups of pain that impaired the function of the shoulder. Current symptoms included weakness and numbness of the left upper extremity, and also left shoulder pain and stiffness. Flare ups also impacted the function of his left shoulder or arm. The Veteran described the flare ups as causing pain and reduced range of motion that impaired his ability to lift, carry, or raise the arm above the head. His functional loss was described in the same manner. Initial left shoulder range of motion testing showed flexion from 0 to 90 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 20 degrees and internal rotation from 0 to 50 degrees. His abnormal range of motion impaired his ability to lift, carry, or raise the arm above his head. There was also pain noted on abduction, external rotation and internal rotation. However, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion. The examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s ability with repeated use over time, because the disturbance of function was intermittent and estimates of additional functional loss with be speculative. Muscle strength testing showed 3/5, active movement against gravity, on forward flexion and abduction. The reduction in muscle strength was entirely due to his claimed condition. There was no muscle atrophy. There was no ankylosis found. It was noted in conclusion that the impact of the Veteran’s shoulder/arm condition on his ability to work was such that the Veteran was not able to work in an occupation that required lifting, carrying, or raising of his arms above the head. He was able to work an occupation that did not require those activities. In August 2017 the Veteran also underwent a VA peripheral nerve condition examination. He was diagnosed with left brachial plexus injury. he Veteran stated that he experienced loss of strength and function in the left upper extremity. He also had numbness of the left arm. He also had pain in the shoulder with flare ups of pain that impair the function of the shoulder. Symptoms attributable to a peripheral nerve condition included moderate numbness of the left upper extremity. Muscle strength testing revealed 3/5 strength, active movement against gravity, on left wrist flexion and extension, left grip and left thumb and index finger pinch. There was no muscle atrophy found. Reflex testing found normal reflexes in the bilateral biceps, triceps, brachioradialis, knees and ankles. Sensory examination found decreased light touch in the left shoulder area (C5), left inner/outer forearm (C6/T1) and left hand/fingers (C6-8). There were no trophic changes and the Veteran’s gait was normal. Special tests were performed for the median nerve and showed negative results for Phalen’s sign and Tinel’s sign bilaterally. The examiner found that the nerves affected were the bilateral radial nerves, bilateral median nerves, bilateral ulnar nerves, bilateral musculocutaneous nerves, bilateral circumflex nerves, bilateral long thoracic nerves, bilateral upper radicular groups, bilateral middle radicular groups, and bilateral lower radicular groups. All of the nerves and groups were found to result in moderate incomplete paralysis. The Veteran did not use any assistive devices. It was noted in conclusion that the impact of the Veteran’s shoulder/arm condition on his ability to work was such that the Veteran was not able to work in an occupation that required lifting, carrying, or raising of his arms above the head. He was able to work an occupation that did not require those activities. The Board finds no other diagnostic code provides for a higher rating for the Veteran’s left brachial plexus injury. As previously discussed, Diagnostic Code 8513 provides for higher ratings than any of the other potentially applicable diagnostic codes, including Diagnostic Code 8512, 8515, and 8516. Further, a separate rating is not warranted under Diagnostic Code 8512, 8515 or 8516 in addition to Diagnostic Code 8513. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. The rating of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disabilities; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Although the Veteran endorsed symptoms of tingling and numbness, constant pain, weakness, loss of sensation, and paralysis during the October 2006 examination, the examiner more consistently characterized the Veteran’s disability as moderate. He maintained dexterity in his hand as shown his ability to tie shoelaces, fasten buttons, and pick up a piece of paper and tear it with both hands. His hand strength was described as moderately reduced on the left. Neurological testing also showed moderate symptomology. Motor function on the left was abnormal but rated as 3/5. Reflexes of the bilateral biceps and triceps were moderate and described as 1+ on the right and 0 on the left. As shown above, the August 2017 examiner’s findings also support this conclusion. Symptoms attributable to a peripheral nerve condition were described as moderate numbness of the left upper extremity. Muscle strength testing revealed 3/5 strength, which the Board determines to be moderate. There was no muscle atrophy found. Reflex testing also found normal reflexes in the bilateral biceps, triceps, brachioradialis, knees and ankles. The examiner also found that all of the affected nerves showed moderate incomplete paralysis. Although the Veteran contends that he is entitled to a disability rating associated with severe incomplete paralysis, the weight of the medical evidence throughout the entire period on appeal consistent describes moderate incomplete paralysis of all radicular groups. A separate rating for the lower radicular group, the ulnar nerve, or the median nerve, would doubly compensate the Veteran for the same symptomatology and thus result in pyramiding. Id., Esteban, supra. The symptom cluster, anatomical location, and effects of the disabilities overlap and do not constitute separate and distinct manifestations of disability warranting separate ratings under Diagnostic Codes 8512, 8515 or 8516. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 30 percent for his service-connected left brachial plexus injury, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.124a., Diagnostic Code 8513; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s left brachial plexus injury have more nearly approximated the criteria for a 30 percent rating, but not higher, for the entire period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for bilateral knee conditions The Veteran seeks service connection for bilateral knee conditions. His post-service treatment records show that he has been treated for right knee degenerative joint disease and left knee osteoarthritis. As discussed below, the Veteran should be afforded a VA examination for his claim for service connection for a lower spine condition. The Veteran’s post-service treatment records, including an October 2017 VA treatment record, suggest that his lower spine conditions are playing a significant role in his lower extremity pain. Considering the low threshold for affording the Veteran a VA examination, and the fact that no VA knee examination has been conducted, the Board finds that the Veteran should be afforded a VA knee examination to determine the nature and etiology of his bilateral knee conditions. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). 2. Entitlement to service connection for a lower spine condition, to include as secondary to service connected left brachial plexus injury is remanded. A review of the record reveals that the Veteran has not been afforded a VA examination for his claim for service connection for a lower spine condition. In a March 2008 Statement in Support of Claim, the Veteran contended his spinal condition was secondary to his left brachial plexus nerve injury. The Veteran’s post-service treatment records show that he has been diagnosed with lumbar spine degenerative disc disease. Furthermore, the Veteran’s January 1969 separation examination noted in-service treatment for a mild lumbar muscle strain. Considering the low threshold for affording the Veteran a VA examination, and the fact that no VA examination has been conducted, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his lower spine conditions. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service connect left brachia plexus injury and non-service connected low back condition is remanded. In a June 2007 Statement in Support of Claim, the Veteran claimed that he experienced numbness in both lower extremities. He related this numbness to his service connected left brachia plexus injury and non-service connection low back condition. The Veteran was afforded a VA peripheral nerves examination in August 2017. It was found that the Veteran had moderate incomplete paralysis of the lower extremities. However, the examiner did not offer an opinion regarding the etiology of the Veteran lower extremity paralysis. Furthermore, a July 2018 MRI of the Veteran’s back showed arthritis and worn out discs and joints. Portions were fused together, and this was pinching the nerves going to his legs. The examiner noted that this was significantly contributing to the weakness in the Veteran’s legs. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his bilateral lower extremity incomplete paralysis. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). 4. Entitlement to service connect for special monthly pension (SMP) is remanded. The AOJ issued a supplemental statement of the case (SSOC) in August 2018 that included discussion of the denial of special monthly pension (SMP). The AOJ observed that the Veteran had filed a claim for SMP in June 2005 that was denied in a March 2006 rating decision. The Veteran perfected a timely notice of disagreement (NOD) to this decision in May 2006. While a statement of the case (SOC) was issued in March 2015 addressing other issues, the issue of entitlement to SMP was not addressed in that SOC. In this case no SOC has been issued addressing the SMP issue. In this regard, under VA regulations, “[i]n no case will a Supplemental Statement of the Case be used to announce decision by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case.” 38 C.F.R. § 19.31 (a). Rather, the AOJ “will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case” by issuing a Statement of the Case. See 38 C.F.R. §§ 19.29, 19.30, and 19.31(a). In light of the foregoing, the issue of entitlement to special monthly pension must be remanded for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also 38 C.F.R. § 20.201 (in effect since March 24, 2015). In this regard, it is noteworthy that the issue of entitlement to SMP is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board’s actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. The matters are REMANDED for the following action: 1. Issue the Veteran an SOC with respect to the claims for entitlement to special monthly pension (SMP). This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on this issue. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302 (b). Then, only if the appeal is timely perfected, the issue of entitlement to SMP should be returned to the Board for further appellate consideration. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, as well as any recent or additional treatment records related to the claimed disabilities. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Then, schedule the Veteran for a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s claimed low back, bilateral knees and bilateral lower extremity nerve disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion with respect to: (a) Whether any diagnosed low back disability was at least as likely as not (a 50 percent probability or greater) incurred in or aggravated by the Veteran’s active service, or is otherwise etiologically related to his active service, and Whether any diagnosed low back disability was at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability or disabilities. (b) Whether any diagnosed low back disability was at least as likely as not (a 50 percent probability or greater) incurred in or aggravated by the Veteran’s active service, or is otherwise etiologically related to his active service, and Whether any diagnosed right and/or left knee disability was at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability or disabilities. The examiner should also discuss whether any diagnosed right and/or left knee condition is (1) proximately due to a low back condition, or (2) aggravated beyond its natural progression by a low back condition. (c) Whether any diagnosed bilateral lower extremity peripheral nerve condition was at least as likely as not (a 50 percent probability or greater) incurred in or aggravated by the Veteran’s active service, or is otherwise etiologically related to his active service, and Whether any diagnosed bilateral lower extremity peripheral nerve condition was at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability or disabilities. The examiner should also discuss whether any diagnosed bilateral lower extremity peripheral nerve condition is (1) proximately due to a low back condition, or (2) aggravated beyond its natural progression by a low back condition. For the purposes of this opinion, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel