Citation Nr: 1754436 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-15 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for gouty arthritis of the knees and ankles. 2. Entitlement to a disability rating in excess of 10 percent for hiatal hernia with esophageal reflux. 3. Entitlement to a disability rating in excess of 10 percent for chronic low back strain with mild degenerative changes. 4. Entitlement to a separate compensable disability rating for neurological impairment of the bilateral lower extremities associated with the service-connected chronic low back strain with mild degenerative changes. 5. Entitlement to a compensable disability rating for multiple lipomas. 6. Entitlement to service connection for a right fibula fracture. 7. Entitlement to service connection for a skin rash on the back. 8. Entitlement to service connection for a right knee scar. 9. Entitlement to service connection for diabetes mellitus (DM). 10. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran had active service from October 1973 to October 1993. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions dated in June 2011 and April 2014 by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran appeared and provided testimony on the service connection claims identified above before the undersigned Veterans Law Judge (VLJ). Subsequent to the most recent statement of the case, additional evidence was added to the claims file. However, RO review of such evidence was waived during the Board hearing. Also, during the pendency of his appeal, the Veteran raised the issue of entitlement to a TDIU. See, e.g., October 2013 VA Form 9. When a request for a TDIU is made during the pendency of a claim, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the issue of entitlement to a TDIU is before the Board. The issue of entitlement to an increased rating for left fibula fracture has been raised by the record in an October 2013 substantive appeal, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to a separate compensable disability rating for neurological impairment of the bilateral lower extremities associated with the service-connected chronic low back strain with mild degenerative changes, service connection for diabetes mellitus and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. On the record during an August 2017 Board hearing, and prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw his appeals for an increased rating for lipomas and service connection for a right fibula fracture, skin rash on the back, and right knee scar. 2. Resolving reasonable doubt in the Veteran's favor, for the entire period on appeal, his gouty arthritis manifested as an active process that more closely approximates symptom combinations productive of definite impairment of health. 3. Resolving reasonable doubt in the Veteran's favor, for the entire period on appeal, his hiatal hernia with esophageal reflux has resulted in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and was productive of considerable impairment of health. 4. Resolving reasonable doubt in the Veteran's favor, for the entire period on appeal, his low back disability is manifested by flexion to 60 degrees with muscle spasm or guarding severe enough to result in an abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issues of entitlement to a compensable disability rating for multiple lipomas and entitlement to service connection for a right fibula fracture, skin rash on the back, and right knee scar have been met. 38 U.S.C. §§ 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The diagnostic code for gouty arthritis of the knees and ankles is changed to 5017-5002, and the criteria for a 40 percent rating, but no greater, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5017 (2017). 3. The criteria for a 30 percent rating, but no greater, for hiatal hernia with esophageal reflux have been met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.20, 4.21, 4.113, 4.114, Diagnostic Code 7346 (2017). 4. The criteria for a 20 percent rating, but no greater, for chronic low back strain with mild degenerative changes has been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 529, 5003, 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Other than as noted below, neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). At the Board hearing, the representative requested that a new examination be provided for the Veteran's back condition because it "may have gotten worse." The Board declines to do so for the following reasons. First, the Veteran himself did not allege the back condition had worsened since the 2016 examination, and there is no medical evidence suggesting that may be the case. Second, new examinations are not required based simply on the length of time that has passed since a prior exam, and, in any case, the last back examination was done approximately one year ago, so it is not outdated. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In August 2017, the Veteran had a hearing before the undersigned Veterans Law Judge in which he provided testimony and argument on the issues currently on appeal. Neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, on the record during the August 2017 Board hearing, the Veteran stated that he wished to withdraw his appeals for entitlement to a compensable disability rating for multiple lipomas and entitlement to service connection for a right fibula fracture, skin rash on the back, and right knee scar. Therefore, since the Veteran's statement occurred prior to the promulgation of a Board decision and constitutes a formal withdrawal of these appeals, there remains no allegation of error of fact or law for appellate consideration as to these matters. The Board does not have jurisdiction to further review these appeals. Accordingly, these appeals are dismissed. II. Increased Rating Claims The Veteran is seeking increased ratings for his gouty arthritis, hiatal hernia with esophageal reflux, and chronic low back strain with mild degenerative changes. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). 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 disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Gouty Arthritis The Veteran argues that his service-connected gouty arthritis of the knees and ankles is more severe than the rating reflects. Specifically, stating in his August 2017 Board hearing that he has gouty flares sometimes once a year or sometimes four to five times a year. During the flareups he cannot move and episodes occur for at least three days. In this case, the Veteran is in receipt of a 20 percent disability rating under 38 C.F.R. § 4.71, Diagnostic Code 5019-5271 (2017). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Diagnostic Code 5019 refers to bursitis, which is to be rated on limitation of motion of the affected parts, as arthritis, degenerative, except gout, which will be rated under Diagnostic Code 5002. Diagnostic Code 5271 indicates ankle limitation of motion. The Board is mindful that the Veteran's 20 percent rating under Diagnostic Code 5019-5271 has been in effect for more than 20 years, and thus is protected and that a change to a diagnostic code is, in essence, a reduction of that disability rating. See Murray v. Shinseki, 24 Vet. App. 420, 426 (2011); 38 C.F.R. § 3.951, 3.952. However, the Federal Circuit has held that service connection for a 'disability' is not severed simply because the situs of a disability-or the Diagnostic Code associated with it-is corrected to more accurately determine the benefit to which a Veteran may be entitled. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Based on the Veteran's active diagnosis of gout, the Board finds his established diagnosis should be rated under Diagnostic Code 5017, which explicitly contemplates gout. Copeland v McDonald, 27 Vet. App. 333 (2015) (where a condition is listed in the schedule, rating by analogy is not appropriate). The currently assigned diagnostic code of 5019 is inappropriate, as that pertains to bursitis. Diagnostic Code 5017 provides that gout should be rated under Diagnostic Code 5002. This diagnostic code provides that the disability may be rated as an active process or on the basis of chronic residuals. 38 C.F.R. § 4.71a, Diagnostic Codes 5017, 5002 (2017). A 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A rating of 60 percent is warranted with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A rating of 100 percent is warranted with constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. The Veteran has experienced acute flares of gout throughout the claims period and he requires continuous medication to control his gout symptoms. See March 2010 VA examination (noting the Veteran had gout of the bilateral ankles and knees and was prescribed Allopurinol and Indomethacin daily); see also July 2014 VA treatment record (noting the Veteran was diagnosed Allopurinol); see also July 2016 VA treatment record (stating the Veteran was prescribed Indomethacin daily); see also September 2016 VA examinations (finding the Veteran's gouty arthritis of the bilateral knee and ankle was an active process). The Board finds that a 40 percent rating for the Veteran's gout as an active process is warranted for the entire appeal period. Indeed, the Veteran's symptom combination is productive of definite impairment of health. The Veteran testified during his August 2017 Board hearing that he has gouty flares sometimes once a year or sometimes four or five times a year. Each attack severely affects his joints to the point where he cannot move. Sometimes his flares are so incapacitating he cannot go to the doctor and his flareups are unreported because he cannot drive. Instead, he just lies in bed. At his Board hearing, he brought a photograph showing clearly visible swelling of his hand, and he stated this was during an acute flare-up in July 2017. He also reported he was on daily medication, which as noted above, has been corroborated by his medical records. Furthermore, a March 2010 VA examination notes the Veteran's constitutional symptoms included severe pain, swelling, redness and inability to walk during incapacitating episodes. He was also unable to do his daily activities during such flareups. Moreover, a March 2016 VA treatment record notes the Veteran's gout flares were a recurrent problem. Based on the Veteran's credible reports of incapacitating gout exacerbations that affect his ability to move along with his continuous prescription of gout medication and affording the Veteran the benefit of the doubt, the Board finds his symptoms warrant a 40 percent rating. A rating in excess of 40 percent is not warranted as there is no evidence indicating the Veteran experienced anemia or weight loss due to gout. While the Veteran reported weight loss during his August 2017 Board hearing, his representative clarified that his weight loss was the result of his hernia. Moreover, his weight loss has been attributed to his intentional dieting. See March 2016 VA treatment record (noting the Veteran complained of unintentional weight loss, but also reported he changed his diet to decrease carbs). Furthermore, while the Veteran reported he sometimes had gout flares four or five times a year, he also testified that he sometimes had flares once a year. Based on this inconsistency and the herein finding of reasonable doubt in granting the Veteran a 40 percent rating, the Board finds a higher rating is not warranted. The Board has considered the applicability of 38 C.F.R. § 4.40, 4.45, and 4.59 in light of the Veteran's complaints of joint pain, but notes that the criteria for rating gout as an active process contemplate exacerbations of various severity, to include flare-ups of symptoms that result in incapacitation with accompanying pain, loss of motion, and loss of function. The Veteran's complaints of functional loss are therefore considered by the criteria currently used to rate his disability. In the alternative, the Board notes gouty arthritis may also be rated based on its chronic residuals. Diagnostic Code 5002 permits evaluation based on limitation of motion or favorable or unfavorable ankylosis of specific joints affected, consistent with applicable rating criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. Id. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A Note to the Code provides that the rating for active-process gouty arthritis cannot be combined with that for residuals based on limitation of motion or ankylosis; the higher rating is to be assigned. However, the Board finds the evidence of record reveals rating the Veteran's bilateral knees and ankles separately based on limitation of motion would not afford him a higher rating. Disabilities of the knee joint, generally, are rated under Diagnostic Codes 5256 through 5263. See 38 C.F.R. § 4.71a. The Veteran does not have ankylosis. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. The evidence of record reveals the Veteran's bilateral knee disability does not warrant a compensable rating under Diagnostic Codes 5260 and/or 5261. See March 2010 VA examination (finding bilateral knee range of motion to 120 degrees with no pain and extension to zero with no pain even after three repetitions); see also September 2016 VA examination (noting right knee flexion was to 80 degrees with pain, left knee flexion was to 70 degrees with pain, bilateral extension to zero with pain, and the Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion). Therefore, the Veteran's knees do not meet a compensable limitation of motion rating. Disabilities of the ankle are to be rated under Diagnostic Code 5270 through 5274. 38 C.F.R. § 4.71a. Diagnostic Code 5270 affords a compensable rating with evidence of ankylosis. There is no finding of ankylosis in the record. See September 2016 VA examination (finding no ankylosis). Diagnostic Code 5270 applies when there is limited motion of the ankle. A 10 percent evaluation is assigned where the limitation of motion is "moderate." While the word "moderate," is not defined in the Rating Schedule, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Here, the evidence does not establish that the Veteran has limitation of motion that is moderate prior to September 2016. Indeed, normal dorsiflexion of the ankle is to 20 degrees and normal plantar flexion of the ankle is to 45 degrees. A March 2010 VA examination found the Veteran's bilateral ankle range of motion was dorsiflexion to 20 degrees with no pain and plantar flexion to 45 degrees with no pain. There was also no change in range of motion after three repetitions. Therefore the Veteran's bilateral ankle does not warrant a compensable rating during this period. Although a September 2016 VA examination found the Veteran's range of motion was dorsiflexion to 10 degrees with pain and plantar flexion to 30 degrees with pain on the right ankle and dorsiflexion to 15 degrees and plantar flexion to 35 degrees on the left, which would warrant a compensable rating, such rating, even with combination of the bilateral factor, would not afford the Veteran a higher rating than his herein grant of 40 percent under Diagnostic Code 5002 for his active gout. The Board also acknowledges that the Veteran claimed in his August 2017 Board hearing that his gout affected his elbow and moved into his hands; however, the record is void of any finding any complaints or testing of limitation of motion of either joints. Therefore, such joints would also not afford the Veteran a higher rating. Moreover, an April 2017 VA examiner reviewed the record to include x-rays and opined that it was less likely that limitation, pain and degenerative arthritis of the bilateral knees and ankles were due to gout. The examiner explained that degeneration is part of a natural aging progression. Furthermore, a July 2017 private treatment record notes x-rays of the Veteran's hands and feet revealed changes of degenerative arthritis; however there was no evidence of erosion of gout. "You have two separate diseases. Degenerative arthritis is the most common form of arthritis we see. If you do not control your gout, you will eventually get erosive changes of your bones from gout." Therefore even if the Veteran had met the compensable rating for limitation of motion of the bilateral knees and ankles for the entire appeals period, the evidence reflects such limitation of motion is not due to gout. Based on the foregoing and affording all benefit of the doubt to the Veteran, a rating not to exceed 40 percent for service-connected gouty arthritis of the knees and ankles is granted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Hiatal Hernia with Esophageal Reflux The Veteran claims his service-connected hiatal hernia with esophageal reflux is more severe than what is reflected by the currently assigned rating, contending during his August 2017 Board hearing that he had weight loss since service, has constant diarrhea and when he eats or takes medicine stuff gets stuck in his throat and his food feels like it will come back up. He also reports arm and shoulder pain. The Veteran's hiatal hernia with esophageal reflux is currently assigned a 10 percent rating under Diagnostic Code 7346. The regulations relevant to this appeal can be found at 38 C.F.R. §§ 4.21, 4.114 and were provided to the Veteran in the December 2015 statement of the case and will not be repeated here. The Board finds that the rating criteria applied by the RO are appropriate. Pernorio v. Derwinski, 2 Vet. App. 625 (1992); 38 C.F.R. §§ 4.20, 4.21 (2017). The Board can identify no more appropriate diagnostic codes and the Veteran has not identified any. Butts v. Brown, 5 Vet. App. 532 (1993). Accordingly, the Board will proceed with an analysis of the Veteran's disability under Diagnostic Code 7346. Resolving reasonable doubt in the Veteran's favor, the Board finds the evidence reflects that the criteria for a higher rating not to exceed 30 percent is warranted. Indeed, the evidence of record demonstrates that the Veteran's disability is productive of considerable impairment of health as contemplated by the higher 30 percent disability rating under Diagnostic Code 7346. The Veteran has consistently reported reflux, regurgitation, difficulty swallowing, episodic discomfort despite medication, and substernal or arm or shoulder pain. See March 2013 VA treatment record (noting complaints of heartburn and regurgitation with an acid/burning taste); see also February 2014 VA treatment record (noting reports of difficulty swallowing); see also March 2016 VA treatment record (finding a diagnosis of dysphagia). Also, the April 2014 VA examiner found the Veteran had daily symptoms of persistently recurrent epigastric distress, pyrosis, reflux, substernal pain, and sleep disturbance caused by esophageal reflux. The Board finds the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's hiatal hernia with esophageal reflux. Although the Veteran reported material weight loss during his August 2017 Board hearing, there is no finding that the Veteran's service-connected hiatal hernia resulted in vomiting, moderate anemia, or other symptoms indicative of severe impairment of health. On the contrary, the Veteran has continuously reported no symptoms of vomiting, there has been no finding of anemia, and a March 2016 VA treatment record notes while the Veteran complained of unintentional weight loss, he also reported he changed his diet to decrease carbs. It also appears that he has not had quite as large a weight loss he believes. He stated at his Board hearing that he was 198 when he separated from service and currently weighed 145. His separation exam actually shows he weighed 175 pounds in 1993, and his VA records show a weight of 151 in March 2017. Taking a historical look at his weight, he was 169 (VA examination March 1994); 173 (April 2001); 156 (July 2010); 161 (February 2012); 160 (April 2013); and 150 (July 2016). Therefore, it is clear between 2001 and 2010 he lost approximately 20 pounds. If we use his weight of 175 pounds at separation from service as his baseline, this means he has lost slightly more than 10 percent of his weight. Under VA's regulations, that would be considered minor weight loss. 38 C.F.R. § 4.112. The Board is cognizant of and sympathetic to the Veteran's complaints of discomfort and acknowledges that he requires regular prescription medication for control of his symptoms. It is for these reasons that he has been assigned a 30 percent disability rating. However, absent the greater symptomatology reflecting more severe impairment related to his hiatal hernia with esophageal reflux, the preponderance of the evidence is against the claim for any higher disability rating. Based on the foregoing, affording all benefit of the doubt to the Veteran, a rating not to exceed 30 percent for service-connected hiatal hernia with esophageal reflux is granted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Chronic Low Back Strain with Mild Degenerative Changes The Veteran contends that he is entitled to a higher rating, stating in his October 2013 substantive appeal that he has constant pain and muscle spasms, and requested a 20 percent rating for his symptoms. He elaborated in his August 2017 Board hearing that he could only drive a car for more than one hour without a back brace. The Veteran is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5295-5003. As noted above, hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. The Board notes that Diagnostic Code 5003 addresses degenerative arthritis generally. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Note 1 of Diagnostic Code 5003 states that the degenerative arthritis ratings will not be combined with ratings based on limitation of motion. Also, there must be X-ray evidence of involvement of two or more major or minor joint groups. Id; see also 38 C.F.R. § 4.45. The lumbar vertebrae are considered a group of minor joints ratable on parity with a major joint. 38 C.F.R. § 4.45. The lumbar spine may only be rated as one major joint. Accordingly, the evidence does not support a rating in excess of 10 percent for the service-connected low back disability under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5295 pertains to lumbar strain. Since the Veteran has degenerative changes, he could also be rated under Diagnostic Code 5242. Regardless, both are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula a rating of 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Resolving reasonable doubt in the Veteran's favor, the Board finds that a disability rating of 20 percent for limitation of motion should be assigned for the entire appeals period. In this regard, the Board acknowledges a September 2016 VA examination found flexion to 70 degrees with pain and no muscle spasms or guarding. However, other medical evidence indicates differently. A May 2012 VA treatment record notes "back nt spine, mod severe right parlaumbar muscle spasm about latis doris neg slr. gait midly antalgic [sic]." Moreover, an April 2013 VA treatment record notes the Veteran suffered from paralumbar spasm and was prescribed medication, an April 2014 VA treatment record revealed muscle spasms, a May 2014 VA treatment record notes a magnetic resonance imaging (MRI) revealed mild levocurvature of the lumbar spine, a May 2015 VA treatment record revealed muscle spasms, and a July 2015 VA treatment record revealed mild to moderate paralumbar spasm. Furthermore, a March 2010 VA examination found flexion to 60 degrees with moderate pain and diagnosed the Veteran with degenerative joint disease of the lumbar spine. Therefore, the Board finds the Veteran's service-connected spine disability warrants a 20 percent rating for the entire period on appeal. The Board has also considered whether a higher 40 or 50 percent rating would be appropriate for any time period on appeal. However, the weight of the competent and credible evidence does not establish favorable or unfavorable ankylosis of the lumbar spine. In considering these rating criteria, the Board has considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). As noted above, the Board has increased the Veteran's service-connected low back disability to 20 percent based on painful limitation of motion to 60 degrees and muscle spasm or guarding severe enough to result in an abnormal spinal contour. Thus, the Veteran's symptoms are contemplated by the 20 percent rating now assigned for the entire appeals period. Also, the Veteran's spine disability has not been shown to have resulted in incapacitating episodes (requiring bedrest/treatment prescribed by a physician) having a total duration of at least 4 weeks but less than 6 weeks during the past twelve months and the Veteran has not contended such. The Board has also considered whether separate ratings are warranted for any additional neurological impairment attributed to the Veteran's low back for the entire period on appeal. The Board notes that other than the neurological abnormalities that will be discussed in the remand portion of this decision below, the evidence of record is absent any evidence of other neurological symptoms related to the spine during the pendency of the entire appeal. Accordingly, additional separate ratings for neurological abnormalities are not warranted. Therefore, the Board finds the evidence of record warrants a 20 percent rating, and no greater, for the entire appeals period. As the preponderance of the evidence is against assignment of any higher ratings for any time period, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER The appeal on the issue of entitlement to a compensable disability rating for multiple lipomas is dismissed. The appeal on the issue of entitlement to service connection for a right fibula fracture is dismissed. The appeal on the issue of entitlement to service connection for a skin rash on the back is dismissed. The appeal on the issue of entitlement to service connection for a right knee scar is dismissed. The diagnostic code for gouty arthritis of the knees and ankles is changed to 5017-5002, and entitlement to a 40 percent disability rating, and no greater, is granted, subject to the laws and regulations governing monetary awards. Entitlement to a 30 percent disability rating, and no greater, for service-connected hiatal hernia with esophageal reflux is granted, subject to the laws and regulations governing monetary awards. Entitlement to a 20 percent disability rating, and no greater, for a chronic low back strain with mild degenerative changes is granted, subject to the laws and regulations governing monetary awards. REMAND The General Rating Formula provides for the assignment of separate disability evaluations under appropriate Diagnostic Codes for any objective neurologic abnormalities associated with a disease or injury of the spine. General Rating Formula, Note (1). Here, the evidence of record reveals the Veteran has consistently complained of lower back pain radiating into his lower extremities. See March 2011 VA treatment record (revealing the Veteran report lower back pain radiating to the legs); see also March 2014 VA treatment record (noting the Veteran reported radicular pain down his right leg); see also April 2014 VA treatment record (noting the Veteran reported chronic low back pain radiating from his back down to his posterior knee); see also May 2014 VA treatment record (stating a MRI of the lumbar spine revealed impingement on the right L4 and L5 nerve root); see also May 2015 VA treatment record (revealing the Veteran reported pain in his back radiating down the left leg). Although a September 2014 VA treatment record notes the Veteran had a "[l]ongstanding history of chronic low back pain w frequent flares of sciatica symptoms/radiculopathy," a subsequent September 2014 VA treatment record found the Veteran's complaints of toe pain on the right foot and sharp tingling pain at night was secondary to DM as well as chronic sciatica, a January 2016 VA treatment record found that while the Veteran complained of low back pain with radiation to the left knee, his nerves were "grossly intact," and the September 2016 VA examination found no radiculopathy. Since the above evidence gives conflicting evidence as the whether the Veteran has a neurological abnormality related to his service connected chronic low back strain with mild degenerative change or how such neurological abnormalities may be rated, the Board finds a VA examination is necessary. The Veteran also claims service connection for DM. Specifically, testifying during his August 2017 Board hearing that prior to his official diagnosis of DM in 1997, he had blurred vision, excessive thirst, and was light headed when hungry. The Board notes a September 1997 record from Chevron states the Veteran was diagnosed with diabetes two months ago by Dr. Othman. In April 2010, the Veteran submitted a request for records from Dr. Othman from February 1994 to December 1998 in support of his DM claim. However, the claims file indicates that only treatment records from 1997 have been associated with the claims file. Since such records could deal directly with the issue on appeal, the Board finds a remand is necessary to associate these missing records with the claims file. Additionally, in December 2015, the Veteran submitted a release for documents from Brookside hospital from 1997 to 2005. In June 2016, the RO informed the Veteran that Brookside required a special release form for copies of medical treatment records. The Veteran filled out and submitted the special release in July 2016. However, only an October 1997 record from Brookside has been associated with the claims file. As it is clear not all Brookside hospital records have been obtained, the RO should also attempt to associate these records with the file. Also, in December 2015, the Veteran also submitted a release for documents from Healthnet from 1994 to 2002, but there is no indication such records have been associated with the claims file. Therefore, the RO should also attempt to associate these records with the claims file. Finally, as noted above, with regard to the claim for TDIU, the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. See Rice, supra. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Here, in his October 2013 substantive appeal the Veteran raised the issue of TDIU. However, the issue of entitlement to TDIU has not been developed nor considered by the RO in the first instance. Therefore, the Board remands the TDIU issue to the RO for development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter, pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the criteria needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. 2. Ask the Veteran to again complete release forms so the RO can request his records from Dr. Othman, Brookside hospital, and Healthnet and any other physician that has treated him for DM since service. If he does so, make all efforts to obtain private records. 3. ONLY AFTER obtaining as many of the above referenced private treatment records as are available, then provide the Veteran's file to a VA examiner for an opinion as to whether it is as likely as not his diabetes mellitus began during service. See glucose level of 191 at separation exam. 4. Thereafter, afford the Veteran an opportunity to attend an appropriate VA examination and opinion to determine whether any neurological abnormalities are associated with the Veteran's service-connected chronic low back strain with mild degenerative change. The claims file must be reviewed by the examiner. A rationale for all medical opinions shall be provided 5. After completing the above and any other development deemed necessary, readjudicate the remanded issues to include TDIU. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs