Citation Nr: 20004696 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-28 744 DATE: January 21, 2020 ORDER The appeal as to the claim of entitlement to service connection for radiculopathy of the right lower extremity is denied. The appeal as to the claim of entitlement to service connection for radiculopathy of the left lower extremity is denied. The appeal as to the claim of entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity due to diabetes mellitus, type II, is denied. The appeal as to the claim of entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity due to diabetes mellitus, type II, is denied. The appeal as to the claim of entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity due to diabetes mellitus, type II, is denied. The appeal as to the claim of entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity due to diabetes mellitus, type II, is denied. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent prior to June 4, 2018, for service-connected lumbar spine disorder, is denied. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent from June 4, 2018, for service-connected lumbar spine disorder, is granted. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for lumbar spine disorder, is denied. REMANDED The appeal as to the claim of entitlement to service connection for a sinus disorder is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 30 percent for service-connected lipoma disorder is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity ilio-inguinal nerve, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity ilio-inguinal nerve, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity obturator nerve, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity obturator nerve, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity external cutaneous nerve, is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity external cutaneous nerve, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, right lower extremity femoral nerve, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, left lower extremity femoral nerve, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, right lower extremity sciatic nerve, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, left lower extremity sciatic nerve, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected Dercum's disease, right upper extremity disorder, is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected Dercum's disease, left upper extremity disorder, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity ilio-inguinal nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity ilio-inguinal nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity obturator nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity obturator nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity external cutaneous nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity external cutaneous nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity femoral nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity femoral nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity sciatic nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity sciatic nerve, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right upper extremity, incomplete paralysis, is remanded. The appeal as to the claim of entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left upper extremity, incomplete paralysis, is remanded. The appeal as to the claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran does not have a right lower extremity radiculopathy disorder. 2. The Veteran does not have a left lower extremity radiculopathy disorder. 3. The Veteran’s current diabetic peripheral neuropathy of the right upper extremity is due to diabetes mellitus, type II; it is not due to active service or a service-connected disability. 4. The Veteran’s current diabetic peripheral neuropathy of the left upper extremity is due to diabetes mellitus, type II; it is not due to active service or a service-connected disability. 5. The Veteran’s current diabetic peripheral neuropathy of the right lower extremity is due to diabetes mellitus, type II; it is not due to active service or a service-connected disability. 6. The Veteran’s current diabetic peripheral neuropathy of the left lower extremity is due to diabetes mellitus, type II; it is not due to active service or a service-connected disability. 7. The Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for lumbar spine disorder on March 3, 2014, and prior to that time, there was no formal or informal claim, or written intent to file a claim of entitlement to service connection for lumbar spine disorder following the January 2004 denial. The Veteran appealed the January 2004 rating decision. 8. A June 2005 Board decision declined to reopen the claim of entitlement to service connection for lumbar spine disorder; the Veteran did not appeal the decision to the Court, and it became final. 9. Prior to June 4, 2018, the Veteran’s lumbar spine disability is manifested by flexion limited to 80 degrees and combined range of motion to 215 degrees; there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and there was no evidence of ankylosis. 10. Since June 4, 2018, the Veteran’s lumbar spine disability has been manifested by flexion limited to 10 degrees and combined range of motion to 75 degrees; there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and there was no evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a right lower extremity radiculopathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for establishing entitlement to service connection for a left lower extremity radiculopathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for establishing entitlement to service connection for right upper extremity diabetic peripheral neuropathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 4. The criteria for establishing entitlement to service connection for left upper extremity diabetic peripheral neuropathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 5. The criteria for establishing entitlement to service connection for right lower extremity diabetic peripheral neuropathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 6. The criteria for establishing entitlement to service connection for left lower extremity diabetic peripheral neuropathy disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 7. The June 2005 Board decision denying the Veteran’s claim of entitlement to service connection for lumbar spine disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). 8. The criteria for an effective date prior to March 3, 2014, for the grant of service connection for lumbar spine, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 9. The criteria for a rating in excess of 10 percent prior to June 4, 2018, for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2019). 10. The criteria for a rating of 40 percent, but no higher, since June 4, 2018, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1978 to June 1979. His service was under honorable conditions. These matters are on appeal from September 2014, July 2016, and December 2016 rating decisions. Service Connection – Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for radiculopathy of the right lower extremity. See argument Below at 2 2. Entitlement to service connection for radiculopathy of the left lower extremity. The Veteran contends that his current bilateral lower extremity radiculopathy disorder is related to active service. Service treatment records are negative for complaints of, treatment for, or diagnoses of a right and/or left upper extremity radiculopathy disorder. Post-service VA and private treatment records are negative for treatment for, or diagnoses of a right and/or left upper extremity radiculopathy disorders. The Veteran underwent a VA examination in July 2016, during which he denied experiencing any radicular pain. Sensory, reflex, and straight leg examinations were normal, bilaterally. The examiner concluded that there were no signs or symptoms of right or left lower extremity radicular pain. The Veteran underwent a second VA examination in June 2018, during which he reported flare-ups, to include bilateral foot numbness. Sensory, reflex, and straight leg examinations were normal, bilaterally. The examiner noted mild bilateral involvement of the sciatic and femoral nerves; however, such nerve involvement was attributed to the service-connected bilateral lower extremity peripheral neuropathy disorders, which include mild sciatic and femoral nerve involvement. The Veteran underwent a third VA examination in April 2019, during which he denied experiencing any radicular pain. Sensory, reflex, and straight leg examinations were normal, bilaterally. The examiner concluded that there were no signs or symptoms of right or left lower extremity radicular pain or disorder. The Board recognizes that the Veteran might sincerely believe that he has a bilateral lower extremity radiculopathy disability that is related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In any event, the Veteran's lay opinion is clearly of less probative value than the VA medical opinions against the claim. According to April through July 2016, VA treatment notes, the Veteran had been suffering from right and left lower extremity pain, respectively. There is no evidence that this was associated with a chronic disability. The Board recognizes that under Saunders v. Wilkie, 886 F.3d 1356 (2018), pain with functional impairment alone is sufficient to show the presence of a current disability. However, in the present case, the Veteran’s pain has been shown to exist for acute periods of time without evidence of chronic functional impairment. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1131; see also Brammer, 3 Vet. App. at 225 (1992). As above the evidence does not show that the Veteran has a right and/or left upper extremity radiculopathy disorder, nor have such diagnoses been present at any time during the period of the appeal. Accordingly, the Board finds that the probative evidence is against finding that the Veteran has a right or left upper extremity radiculopathy disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990) 3. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity claimed as due to diabetes mellitus, type II. See argument Below at 6 4. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity claimed as due to diabetes mellitus, type II. See argument Below at 6 5. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity claimed as due to diabetes mellitus, type II. See argument Below at 6 6. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity claimed as due to diabetes mellitus, type II. The Veteran contends that he has current bilateral upper and lower extremity peripheral neuropathy disorders that are causally related to his diabetes mellitus, type II disability. The Board notes that although the Veteran has claimed secondary service connection, the Veteran is not currently in receipt of service connection for diabetes mellitus, type II. In order for a disability to be service connected on a secondary basis, the Veteran must first be in receipt of service connection for a disability. In this regard, while the Veteran is in receipt of service connection for lipomatosis and associated Dercum’s disease, and a lumbar strain, he does not contend, nor does the record demonstrate that his claimed bilateral upper and lower extremity peripheral neuropathy disorders were caused or aggravated by such service-connected disabilities. Therefore, the Board finds that entitlement to service connection on a secondary basis is denied. The Board must still consider whether service connection is warranted on a direct basis. The Board acknowledges that the Veteran has diagnoses of bilateral upper and lower extremity peripheral neuropathy disorders as a result of his diabetes mellitus, type II disorder. Specifically, post-service Social Security Administration (SSA) records indicate these diagnoses in March 2015. However, service treatment records are negative for complaints of, treatment for, or a diagnosis of upper or lower extremity peripheral neuropathy. Moreover, the Veteran does not contend that his claimed disorders are related to his active service. In sum, the Board notes that the Veteran's bilateral upper and lower extremity diabetic peripheral neuropathy manifested after separation from service. Neither the Veteran nor the relevant medical evidence of record has related the Veteran's bilateral upper and/or lower extremity diabetic peripheral neuropathy to the Veteran's active service. As above, the Veteran has asserted that his bilateral upper and lower extremity diabetic peripheral neuropathy disorders are related to his current diabetes disability; however, diabetes is not a service-connected disability. The record contains no evidence that the Veteran's bilateral upper and/or lower extremity diabetic peripheral neuropathy disorders manifested during active service or are causally related to his active service. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for diabetic peripheral neuropathy disabilities of the upper and lower extremities. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Earlier Effective Date 7. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for lumbar spine disorder. The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for lumbar spine disorder. Generally, the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). By way of background, the Board notes that the Veteran initiated his original claim for entitlement to service connection for lumbar spine in July 1979. In a July 1979 rating decision, service connection for lumbar spine disorder was denied. The Veteran did not appeal the decision and it became final. He did not file a notice of disagreement with that rating decision, and no new and material evidence was received within one year of the notice. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.156 (b), 20.202, 20.1103 (2019). In March 1993, the Veteran filed a claim to reopen the claim of entitlement to service connection for a lumbar spine disorder. In a November 1993 rating decision, the claim was denied. The Veteran did not appeal the decision and it became final. In January 1995, the Veteran filed a claim to reopen the issue. In February 1995 and August 1996 rating decisions, the RO confirmed the previous denial, and the Veteran perfected an appeal to the Board. In a March 1997 Board decision, the Board declined to reopen the claim of entitlement to service connection for lumbar spine disorder, as new and material evidence had not been presented. In an April 1998 memorandum decision, the United States Court of Veterans Appeals (Court) affirmed the Board’s decision. In July 2000 and August 2001 rating decisions, the RO confirmed the previous denial. In January 2002, the Veteran filed a claim to reopen the previously denied claim. In a May 2002 rating decision, the claim was denied, and the Veteran perfected an appeal to the Board. In a January 2004 decision, the Board remanded the issue for additional development. In a June 2005 decision, the Board declined to reopen the claim, as new and material evidence had not been received. He did not file a notice of disagreement with that rating decision, and no new and material evidence was received within one year of the notice. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.156 (b), 20.202, 20.1103. On March 3, 2014, the Veteran filed a claim to reopen the previously denied claim of entitlement to service connection for lumbar spine. In a September 2014 rating decision, the RO continued the previous denial of service connection for lumbar spine disorder. In December 2014, the Veteran filed a notice of disagreement. In May 2017, perfected the current appeal. As noted above, generally, the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this regard, the Veteran’s claim to reopen was most recently denied in June 2005, and after the expiration of the appeal period, the earliest evidence of a claim to reopen was submitted on March 3, 2014. Under this fact pattern, in the absence of clear and unmistakable error (CUE), an effective date earlier than March 3, 2014, is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Here, the Veteran is not claiming CUE. Based on the foregoing, the Board concludes the earliest possible effective date for the grant of service connection for the Veteran's lumbar spine disorder is the assigned effective date of March 3, 2014. Accordingly, the claim must be denied. Increased Rating – Legal Criteria Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and subsequent increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify regarding the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2019). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2019). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather pain, may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2019). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2019). In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 8. Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbar spine disorder. The Veteran also contends that his service-connected lumbar spine disability is more severe than his current 10 percent rating. The Veteran’s lumbar spine disability is rated under Diagnostic Code 5237 for a strain of the lumbar spine, which utilizes the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent rating is warranted 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motions for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Intervertebral disc syndrome (IVDS) will be evaluated under the General Rating Formula or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2019). For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note 1. The Veteran underwent a VA examination in July 2016, during which he reported symptoms of low back pain since active service. He denied flare-ups. He denied functional loss and functional impairment of the thoracolumbar spine. Physical examination demonstrated no tenderness to palpation. Range of motion testing revealed all normal range of motion, to include forward flexion of the lumbar spine to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was evidence of pain during extension. There was no evidence of pain with weight bearing. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of function or range of motion or functional loss of the lumbar spine. With repeated use over time, pain limited functional ability, as evidenced by the Veteran’s forward flexion, which was limited to 80 degrees, and extension limited to 15 degrees. There was no evidence of muscle spasm, weakness, or tenderness. There was no evidence of ankylosis. Muscle strength testing was normal and there was no muscle atrophy. Sensory examination was normal. Reflex examination was normal. Straight leg test was negative. There was no evidence of IVDS of the lumbar spine. There was no evidence of radiculopathy. The diagnosis was lumbar spine strain. The Veteran underwent a second VA examination in June 2018, during which he reported symptoms of low back pain since active service. He reported flare-ups, to include bilateral foot numbness. The Veteran reported functional loss; specifically, when he experienced a flare-up, that he could not walk. Physical examination demonstrated tenderness to palpation. Range of motion testing revealed abnormal range of motion of the lumbar spine, to include forward flexion to 15 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. There was evidence of pain on examination that caused functional loss, as well as evidence of pain with weight bearing. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of function or range of motion or functional loss of the lumbar spine. With repeated use over time, pain and weakness limited functional ability, as evidenced by the Veteran’s forward flexion, which was limited to 10 degrees. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. There was no evidence of muscle spasm, weakness, or tenderness. There was no evidence of ankylosis. Muscle strength testing was normal and there was no muscle atrophy. Sensory examination was normal. Reflex examination was normal. Straight leg test was negative. The examiner noted bilateral mild sciatic and femoral nerve involvement; however, such nerve involvement was attributed to the Veteran’s service-connected bilateral lower extremity peripheral neuropathy disorders, which include mild sciatic and femoral nerve involvement. The diagnosis was lumbar spine strain. Prior to June 4, 2018 Upon review of the record, the Board finds that the Veteran's lumbar spine disability prior to June 4, 2018, does not warrant an initial rating in excess of 10 percent. The above evidence shows the Veteran's range of motion as normal prior to the June 2018 VA examination. In addition, there is no evidence of record of additional limitation of range of motion or functional impairment upon repetitive motion testing. 38 C.F.R. §§ 4.71a, 4.40, 4.45, 4.59; see Mitchell, 25 Vet. App. at 32; Deluca, 8 Vet. App. at 202. On examination in July 2016, range of motion testing revealed all normal range of motion, to include forward flexion of the lumbar spine to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran performed repetitive-use testing with three repetitions and there was no additional loss of function or range of motion or functional loss of the lumbar spine. With repeated use over time, pain limited functional ability, as evidenced by the Veteran’s forward flexion, which was limited to 80 degrees. In this regard, an initial 10 percent evaluation is warranted prior to June 4, 2018, as forward flexion of the lumbar spine is greater than 60 degrees, but not greater than 85 degrees. There is no evidence of forward flexion to 30 degrees but not greater than 60 degrees; or the combined range of motion of the lumbar 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; thus, a 20 percent rating is not warranted. Likewise, a 40 percent rating is not warranted, as there is no evidence of forward flexion to 30 degrees or less, or, favorable ankylosis of the entire lumbar spine. In addition, a 50 or 100 percent rating is not warranted, as there is no evidence of unfavorable ankylosis of the lumbar spine. Since June 4, 2018 The Board finds that since June 4, 2018, the Veteran’s lumbar spine disability warrants an initial rating of 40 percent, but no higher. On examination in June 2018, range of motion testing revealed forward flexion to 15 degrees. With repeated use over time, pain and weakness limited functional ability, as evidenced by the Veteran’s forward flexion, which was limited to 10 degrees. A 50 or 100 percent rating is not warranted, as there is no evidence of unfavorable ankylosis of the lumbar spine. Additionally, throughout the period of the appeal, the Veteran denied incapacitating episodes and he was not diagnosed with IVDS. Finally, the Veteran does not report, nor does the evidence demonstrate any neurological manifestations (other than the separately service-connected right and left lower extremity peripheral neuropathy) associated with the service-connected Dercum’s disease. Further, the Board has considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. In this regard, the Board acknowledges the Veteran's consistent report of pain, stiffness, and difficulty walking. However, even affording the lay statements full competence and credibility, the evidence simply does not show entitlement to a higher evaluation under any applicable diagnostic code. For these reasons, the Board finds that an initial rating in excess of 10 percent prior to June 4, 2018, and an initial rating in excess of 40 percent since June 4, 2018, for the service-connected lumbar spine disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a sinus disorder. The Veteran contends that his current sinus disorder began during active service; specifically, he experienced bleeding from his nose, infection, and congestion. He also asserts that his symptoms of bleeding and congestion have progressively worsened since their initial onset. Service treatment records are negative for complaints of, treatment for, or diagnosis of a sinus disorder. Contemporaneous VA treatment records note the Veteran’s reports of congestion and occasional sinus infection. VA treatment records dated in 2012 through 2016 also demonstrate diagnoses of sinusitis. Given the above, the Veteran must be scheduled for a VA examination and opinion to determine whether any previously or currently diagnosed sinus disorder is related to his active service. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to an evaluation in excess of 30 percent for service-connected lipoma disorder. The Veteran is seeking a rating in excess of 30 percent for his skin disability, characterized as lipomatosis under Diagnostic Codes 7819-7806. 38 C.F.R. § 4.118. In order to warrant a rating in excess of 30 percent for lipomatosis, the evidence must show: visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement (50 percent under Diagnostic Code 7800); deep and nonlinear and an area or areas of at least 144 sq. in. (929 sq. cm) or greater (40 percent under Diagnostic Code 7801); more than 40 percent of the entire body, or more than 40 percent of exposed areas, or; requires the use of constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs (60 percent under Diagnostic Code 7806). See 38 C.F.R. § 4.118. The Veteran underwent VA skin examinations in April 2014 and July 2016. The Veteran also underwent a VA scar examination in June 2018. The examinations dated in July 2016 and June 2018 do not address the percentage of exposed areas affected, or; whether the Veteran is required to take constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Therefore, another examination is required to address the Veteran’s current symptoms. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity ilio-inguinal nerve. See argument Below at 14 4. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity ilio-inguinal nerve. See argument Below at 14 5. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity obturator nerve. See argument Below at 14 6. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity obturator nerve. See argument Below at 14 7. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, right lower extremity external cutaneous nerve. See argument Below at 14 8. Entitlement to an initial compensable evaluation for service-connected Dercum's disease, left lower extremity external cutaneous nerve. See argument Below at 14 9. Entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, right lower extremity femoral nerve. See argument Below at 14 10. Entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, left lower extremity femoral nerve. See argument Below at 14 11. Entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, right lower extremity sciatic nerve. See argument Below at 14 12. Entitlement to an initial evaluation in excess of 10 percent for service-connected Dercum's disease, left lower extremity sciatic nerve. See argument Below at 14 13. Entitlement to an initial evaluation in excess of 20 percent for service-connected Dercum's disease, right upper extremity, incomplete paralysis. See argument Below at 14 14. Entitlement to an initial evaluation in excess of 20 percent for service-connected Dercum's disease, left upper extremity, incomplete paralysis. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected bilateral lower extremity ilio-inguinal nerve, obturator nerve, external cutaneous nerve, femoral nerve, and sciatic nerve disabilities, and bilateral upper extremity incomplete paralysis disability, in June 2018, approximately two years ago. In multiple statements dated in November 2018 and July 2019, the Veteran asserted that his bilateral upper and lower peripheral neuropathy disabilities worsened; specifically, that he experienced increased weakness in his arms and legs, difficulty maintaining balance, and pain, suggesting that his symptoms may have increased in severity since the June 2018 VA examination. In light of the foregoing, more contemporaneous examinations are warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected bilateral lower extremity ilio-inguinal nerve, obturator nerve, external cutaneous nerve, femoral nerve, and sciatic nerve disabilities, and bilateral upper extremity incomplete paralysis disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 15. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity ilio-inguinal nerve. See argument Below at 27 16. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity ilio-inguinal nerve. See argument Below at 27 17. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity obturator nerve. See argument Below at 27 18. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity obturator nerve. See argument Below at 27 19. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity external cutaneous nerve. See argument Below at 27 20. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity external cutaneous nerve. See argument Below at 27 21. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity femoral nerve. See argument Below at 27 22. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity femoral nerve. See argument Below at 27 23. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right lower extremity sciatic nerve. See argument Below at 27 24. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left lower extremity sciatic nerve. See argument Below at 27 25. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, right upper extremity disorder. See argument Below at 27 26. Entitlement to an effective date earlier than March 3, 2014, for the grant of service connection for Dercum's disease, left upper extremity disorder. See argument Below at 27 27. Entitlement to a TDIU due to service-connected disabilities. Finally, since the Veteran’s claim for increased ratings and his claim of entitlement to a TDIU, relies in part on his disability ratings, these issues cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). Further, development to obtain any outstanding medical records pertinent to the Veteran’s claims should be completed. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records dated from October 2019, to the present, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any current sinus disorder present during the period on appeal. The examiner must review the record, to include service treatment records, VA and private treatment records, lay statements and the Veteran’s statements. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current sinus disorder, manifested during, or as a result of, active military service. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms of congestion and bleeding began during active service. The examiner must also discuss the contemporaneous VA treatment records that note diagnoses of sinusitis. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected lipomatosis disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the lipomastosis disability, as well as information required for rating purposes. Specifically, the examiner must address whether the Veteran as the following: visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement; deep and nonlinear and an area or areas of at least 144 sq. in. (929 sq. cm) or greater; more than 40 percent of the entire body, or more than 40 percent of exposed areas, or; requires the use of constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected bilateral lower extremity ilio-inguinal nerve, obturator nerve, external cutaneous nerve, femoral nerve, and sciatic nerve disabilities, and bilateral upper extremity incomplete paralysis disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the bilateral lower extremity ilio-inguinal nerve, obturator nerve, external cutaneous nerve, femoral nerve, and sciatic nerve disabilities, and bilateral upper extremity incomplete paralysis disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 6. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.