Citation Nr: 21009637 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-43 036 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left upper extremity lymphedema, to include on an extraschedular basis, is denied. FINDINGS OF FACTS 1. The preponderance of the evidence of does not show an exceptional disability picture that makes application of the schedular rating criteria inadequate. 2. Left upper extremity lymphedema is manifested by intermittent edema without stasis pigmentation, eczema, or ulceration. CONCLUSIONS OF LAW 1. The criteria for a higher rating for left upper extremity lymphedema on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14; 4.85, Diagnostic Code 7121. 2. The criteria for entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.104, Diagnostic Code 7121. REASONS FOR REMAND The Veteran served on active duty from July 1989 to November 2003. A December 2016 Board decision denied entitlement to an increased rating in excess of 20 percent for service-connected lymphedema of the left upper extremity for the entire appeal period. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. In a November 2017 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s decision as to the claim for entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity, to include on an extraschedular basis, and remanded the matter to the Board for action consistent with the Joint Motion. In August 2020, the Board remanded this case for referral of the issue of extraschedular rating to the Executive Director of Compensation Service. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's lymphedema of the left upper extremity has been rated by analogy under 38 C.F.R. § 4.104, Diagnostic Code 7121, which pertains to post-phlebitic syndrome of any etiology. Under Diagnostic Code 7121, a 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation, or eczema, and persistent ulceration. A 100 percent rating is warranted for massive board-like edema, with constant pain at rest. 38 C.F.R. § 4.104. Entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity on a schedular basis In a February 2018 statement, the Veteran, through the representative, stated that a rating in excess of 20 percent for left upper extremity lymphedema was warranted as symptoms included “recurrent rashes, redness, skin discoloration that appear[ed] as burns, fibrotic changes and erythema,” which were “analogous to stasis pigmentation.” In May 2020, the Veteran stated that symptoms of lymphedema included “stasis pigmentation or eczema and or rashes, and pitting.” The Veteran stated that “rashes often occur due to prolonged use of day and night garments.” An August 2007 record shows left upper extremity painful erythema and edema. Left upper extremity erythema was diagnosed again in August 2010. VA medical records from November 2015 to July 2020 show that the Veteran denied erythema and rashes, and doctors noted that there were no visible skin rashes. During the January 2016 VA examination, the Veteran reported persistent edema which was not relieved “despite aggressive management and compliance with prevention measures,” fair range of motion, and no pain. The Veteran reported that she “typically [wore] sleeveless tops and/or a sweater…[and was] constantly asked by strangers if she has had severe burns to her left arm.” The examiner noted that an “examination of both upper extremities [was] negative for stasis pigmentation, eczema, persistent ulceration, subcutaneous induration or board-like edema.” The Board finds that a rating higher than 20 percent is not warranted. The evidence shows that left upper extremity lymphedema is not manifested by persistent stasis pigmentation or eczema. Although the Veteran and representative argue that rashes, redness, skin discoloration, fibrotic changes, and erythema were analogous to stasis pigmentation, they have not submitted any competent medical evidence to support that contention. The January 2016 VA examiner noted the Veteran’s reports of skin discoloration, examined the Veteran’s left upper extremity, and concluded that the left upper extremity did not manifest stasis pigmentation or eczema. The Veteran has not submitted any competent medical evidence to the contrary. The Board finds that any rashes, redness, skin discoloration, fibrotic changes and erythema were not shown to be persistent or equate to stasis pigmentation or eczema. To the extent that the Veteran argues that rashes, redness, skin discoloration, fibrotic changes, and erythema were analogous to stasis pigmentation, the Board finds that the symptoms more nearly approximate the severity and frequency of beginning stasis pigmentation or eczema which is already contemplated in the 20 percent rating assigned. Therefore, a 40 percent rating is not warranted. The Board also finds that the opinion of the VA examiner that stasis pigmentation was not present is more persuasive because of the medical training of the examiner. There is no evidence and the Veteran does not assert that lymphedema symptoms include persistent ulceration, or massive board-like edema, with constant pain at rest. Therefore, a higher rating is not warranted. Accordingly, as the preponderance of the evidence weighs against assignment of a higher rating, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity on an extraschedular basis In the November 2017 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases for denying an increased rating for service-connected lymphedema of the left upper extremity on both a schedular and extraschedular basis. 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 3.321(b)(1). The parties agreed that the Board did not discuss whether, during the course of the appeal, symptoms of painful rashes, erythema, and cellulitis were analogous to stasis pigmentation listed in Diagnostic Code 7121 or whether those symptoms warranted referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). In August 2020, the Board remanded this matter for referral of the issue of extraschedular rating to the Executive Director of Compensation Service. In December 2020, the Executive Director of Compensation Service determined that “no unusual or exceptional disability pattern ha[d] been demonstrated that would render application of the regular rating criteria as impractical.” It was noted that “extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical.” Accordingly, an extraschedular rating for left upper extremity lymphedema was denied. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is assigning an extraschedular rating. The Veteran reported that service-connected left upper extremity lymphedema interfered with her job-required travel, typing, and writing. The Board notes that the schedular rating itself contemplates some interference with employment. However, in order to assign an extraschedular rating, there must be marked interference with employment. The Board finds that the level of employment interference shown is less than marked. A November 2017 medical record shows that the Veteran reported that she had been hospitalized with cellulitis four times in the 14 years, with the last occurrence in 2007. Therefore, the Board finds that the preponderance of the evidence is against a finding of marked interference with employment or frequent periods of hospitalization and the assignment of an extraschedular rating is not warranted. Accordingly, the preponderance of the evidence is against the assignment of an extraschedular rating for left upper extremity lymphedema as the evidence does not show marked interference with employment or frequent hospitalization. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.