Citation Nr: 18140350 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 13-31 417A DATE: October 3, 2018 ORDER The Board having determined a 100 percent disability rating is warranted for chronic lymphedema throughout the period of the claim, the benefit sought on appeal is granted. FINDING OF FACT Throughout the period of the claim, the Veteran’s chronic lymphedema has manifested as massive board-like edema with constant pain at rest. CONCLUSION OF LAW Throughout the period of the claim, the criteria for a 100 percent rating for chronic lymphedema have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 3.102, 4.3, 4.104, Diagnostic Code (DC) 7121. REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the United States Army from December 1965 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing is of record. General Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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; 38 C.F.R. §§ 3.321(a), 4.1. In 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). 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. 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; 38 C.F.R. §§ 3.102, 4.3; 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. Background and Analysis At the outset, the Board notes it has carefully reviewed the entire record, to include all VA and outpatient treatment notes, which are voluminous. For the reasons discussed below, however, the Board has determined the Veteran’s claim may be granted on the basis of a February 2016 letter by a private physician in combination with the Veteran’s testimony at his July 2018 hearing before the undersigned. The Veteran’s chronic lymphedema is rated under 38 C.F.R. § 4.104, DC 7121. Under DC 7121, a noncompensable rating is warranted for asymptomatic palpable or visible varicose veins. A 100 percent rating is warranted for massive board-like edema with constant pain at rest. In a February 2016 letter, Dr. D.S., a specialist in infectious diseases, stated the Veteran had been under his care for chronic lymphedema of the right upper extremity since February 2003. Dr. D.S. noted he had examined the Veteran in January 2016, at which time the Veteran had massive board-like edema and “consistent pain.” Dr. D.S. stated the Veteran’s swelling involved the pectoralis area, the supraclavicular area, and the right anterior chest, in addition to the right upper extremity. At this juncture, the Board observes that “massive board-like edema” is demonstrated by the medical evidence throughout the period of the claim. For example, in a January 2007 correspondence, Dr. D.S. stated, in pertinent part, that the Veteran had massive board-like edema with constant pain. At his July 2018 hearing, the Veteran testified credibly that his edema had begun to spread from his right upper extremity to his collar-bone and chest at least five years prior. He also testified credibly that his condition had caused constant pain, even at rest, throughout the period of the claim. After having resolved reasonable doubt in favor of the Veteran, the Board finds that throughout the period of the claim, the Veteran’s chronic lymphedema has manifested as massive board-like edema with constant pain at rest, involving the right upper extremity, supraclavicular area, and chest. Accordingly, the Board finds a 100 percent rating is warranted for the Veteran’s condition throughout the period of the claim. The Board briefly notes that in a December 2009 decision, the Board denied a rating higher than 80 percent for the Veteran’s chronic lymphedema. Specifically, although the Board found the Veteran’s symptomatology met the criteria for a 100 percent rating under DC 7121, it noted the Veteran’s symptoms were confined to his right upper extremity, and that a 100 percent rating was, therefore, not warranted because the “amputation rule” precluded assigning a rating higher than that which would be assigned for amputation of the right upper extremity. See 38 C.F.R. § 4.68 (2017). (Continued on the next page)   The Veteran has contended that 38 C.F.R. § 4.68 does not preclude assignment of a 100 percent rating under DC 7121. The Board need not address this issue, however, since the evidence discussed above shows the Veteran’s chronic lymphedema has been present in his chest and supraclavicular in addition to his right upper extremity throughout the period of the claim. Because the disability in question is no longer confined to a single extremity, the amputation rule does not apply. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel