Citation Nr: 21032159 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-31 227A DATE: May 26, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to October 13, 2012 for idiopathic lymphedema of left lower extremity, and in excess of 20 percent thereafter is denied. Entitlement to a rating in excess of 10 percent prior to October 13, 2012 for idiopathic lymphedema of right lower extremity, and in excess of 20 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to October 12, 2012, the Veteran's idiopathic lymphedema of the left lower extremity was primarily manifested by intermittent edema; thereafter, it was primarily manifested by persistent edema and intermittent cellulitis, cracks, and athlete's foot; it did not result in persistent edema and stasis pigmentation or eczema. 2. Prior to October 12, 2012, the Veteran's idiopathic lymphedema of the right lower extremity was primarily manifested by intermittent edema and cellulitis; thereafter, it was primarily manifested by persistent edema and intermittent cellulitis, cracks, and athlete's foot; it did not result in persistent edema and stasis pigmentation or eczema. 3. The Veteran's service-connected disabilities do not render her unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for idiopathic lymphedema of left lower extremity prior to October 13, 2012, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.2, 4.7, 4.104, Diagnostic Code 7120. 2. The criteria for a rating in excess of 10 percent for idiopathic lymphedema of right lower extremity prior to October 13, 2012, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.2, 4.7, 4.104, Diagnostic Code 7120. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2019. A hearing transcript is of record. In September 2019 and January 2021, the Board remanded the appeal for further development. The January 2021 remand directives have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 10 percent prior to October 13, 2012 for idiopathic lymphedema of left lower extremity, and in excess of 20 percent thereafter is denied. 2. Entitlement to a rating in excess of 10 percent prior to October 13, 2012 for idiopathic lymphedema of right lower extremity, and in excess of 20 percent thereafter is denied. The Veteran's idiopathic lymphedema of the right and left lower extremities is currently rated 10 percent prior to October 13, 2012; and rated 20 percent thereafter pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7120. The Veteran contends that she is entitled to higher ratings. The appeal period before the Board begins on October 13, 2011, one year prior to receipt of the claim for increase. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's idiopathic lymphedema is rated as analogous to varicose veins under 38 C.F.R. § 4.104, Diagnostic Code 7120. Under Diagnostic Code 7120, a 10 percent rating is warranted where there is intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is warranted where there is persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is awarded where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted where there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is awarded for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120. A February 2010 private record from Northwest Lake Forest Hospital (Northwest) showed significant swelling of the Veteran's left lower extremity (about 3+ pitting edema) and some swelling in her right lower extremity (about 1+ pitting edema). A following February 2010 record from Northwest noted clinical history of redness and swelling along the medial mid left thigh. The impression was mildly enlarged lymph node identified in the left medial proximal to mid-thigh. In a July 2010 emergency record from Northwest, a clinical report authored by nurses noted moderate swelling in the right leg and severe swelling in the left leg. There were open areas between web spaces of all 5 digits to left foot. The clinical report of the physician noted mild tenderness and moderate swelling in the anterior aspect of mid left leg. The impression was cellulitis of the left leg and athlete's foot. In a July 2011 emergency record from Northwest, the clinical report of the nurses noted complaint of swelling and redness in the right lower extremity that began the day before. Physical assessment revealed right leg mild tenderness and moderate swelling. There was erythema with warmth. The clinical report of the physician noted erythematous rash was present on the right leg and ankle. There was small healing blister on heel without fluctuance or discharge. The impression was cellulitis of the right leg. The physician's note two days later noted that the Veteran did not have fever or pain, and that redness on the leg was getting smaller. There is no record of follow up visits. The Veteran underwent a VA examination in January 2013. She was diagnosed with idiopathic lymphedema in bilateral lower extremities as of 1983. The Veteran reported she began experiencing swelling in her lower extremities while on her first tour on a ship, and has been a chronic, ongoing problem ever since. She felt that the extent of swelling has increased as she has aged. She stated she will also from time to time develop a cellulitis in her extremities that requires either intravenous or oral antibiotics. The examiner noted that the Veteran did not have varicose veins or post-phlebitic syndrome of any etiology. There was no aortic aneurysm or Raynaud's syndrome. The examiner noted that the extremity girth measurements today versus values measured in 2000 suggested a progression of swelling in the lower extremities. The examiner noted that the Veteran requires work that does not demand extended walking or standing, and allows for frequent breaks from sitting. In a September 2013 VA record, physical examination showed bilateral 1+ pitting pedal edema up to upper legs. Assessment was edema of lower extremity. In a December 2013 VA record, review of system noted swelling of legs. Physical examination revealed bilateral 2+ pitting pedal edema, and the clinical assessment was edema. The clinician discussed about prescription of Lasix. An addendum next day noted the Veteran to continue to use compression stockings for edema. In a January 2014 VA record, the Veteran complained of bilateral ankle edema that was worsening. Physical examination revealed significant non-pitting edema with trace pitting pedal edema. The assessment was ankle edema secondary to lymphedema and venous stasis edema. In the February 2014 notice of disagreement (NOD), the Veteran noted that the lymphedema in her legs has progressed through various stages, and is currently in advanced stage. She stated that the repeated episodes of cellulitis have impacted her quality of life and ability to work. She has broken skin and painful fissure between her toes that contribute to reoccurring athlete's foot and cellulitis. She stated that the connective tissue under her skin has been affected from repeated bouts of cellulitis. She stated the infections have caused scarring which makes the tissue vulnerable to more swelling and infection, and has led to hardening and thickening of her skin, fibrosis, and/or hyperkeratosis. She stated the soles of her feet are scaly and often get blisters or lesions. She stated the tinea pedis symptoms create an opportunity for infection which leads to cellulitis. She reported constant aching, discomfort, and a feeling of heaviness in each leg. She reported there is increasing restriction on the range of motion in both legs, which makes it difficult for her to stand or walk. She stated the swelling has increased and progressed from the foot and ankles to the calf and upper legs. The Veteran underwent a private evaluation for artery and vein conditions in November 2014. The Veteran was diagnosed with bilateral idiopathic lymphedema of lower extremities. She stated that she started having swelling and pain in both legs, and cellulitis, in 1984. She had lymphangiogram twice, but failed. She was given Lasix and Jobst stocking, and was admitted 5-6 times for cellulitis. She has recurring athlete's foot. The clinician noted there was no varicose veins or post-phlebitic syndrome of any etiology. There was no aortic aneurysm or Raynaud's syndrome. Lymphangiogram showed scars on both feet that were not unstable or painful, or greater than 39cm2. Regarding impact on ability to work, the clinician noted that the Veteran is limited in standing or sitting for prolonged periods. A May 2016 VA record noted edema secondary to venous stasis and lymph edema. Prescription of Lasix and compression stocking were noted. A June 2016 VA record noted an assessment of edema secondary to venous stasis and lymph edema. A September 2017 VA record noted swelling of legs. Physical examination revealed bilateral non-pitting pedal edema. The assessment was "edema (majority lymphedema)." In a February 2018 VA record, the clinician noted that the Veteran had edema. A May 2019 private treatment record noted chronic bilateral leg swelling. The assessment was lymphedema. It noted use of support stockings. At the June 2019 Board hearing, the Veteran stated that lifting her feet up did not relieve her symptoms. She stated that her skin cracks when it swells, and that swelling gets hard throughout the day. She reported use of Jobst stockings. An August 2019 private treatment record noted chronic leg edema. In a May 2020 VA record, the Veteran reported that leg swelling has increased and is getting painful. She reported that her compression stockings are too tight, and a larger pair was ordered. A June 2020 VA record noted "leg swelling - needs compression stockings." The Veteran underwent a VA examination in January 2020. The Veteran was diagnosed with idiopathic lymphedema of bilateral lower extremities. She reported bilateral leg pain, tightness, and swelling. Her current medication was daily Maxzide for hypertension and leg swelling. She did not have any varicose veins or post-phlebitic syndrome of any etiology. The examiner noted left foot scar that measured 2cm x 1cm, that was not unstable or painful. The examiner noted that the Veteran's diagnosed condition impacted her ability to work. The Veteran reported she lost 1-2 weeks of work time in the last 12 months due to her condition. She reported that when pain is severe, she calls out of work. She stated that her job requires some walking, which aggravates her leg. In January 2021, the Board remanded the appeal because the January 2020 examination report did not discuss the skin symptoms reported by the Veteran in the January 2014 NOD nor clearly describe the severity of the chronic swelling as it pertains to rating the frequency and severity of edema pursuant to Diagnostic Code 7120. An addendum VA opinion was received in February 2021. The examiner noted that review of the Veteran's c-file showed evidence of recurrent cellulitis over the duration of the appeal since October 2011. The examiner indicated that excerpts of VA treatment records from February 2010 to January 2013 noted cellulitis in the bilateral lower extremities and athlete's foot on the left foot. The examiner noted that c-file did not show recurrent cellulitis beyond 2014. The examiner also noted the c-file did not reveal a diagnosis of sunburn. Regarding blisters, the examiner referred to a July 2011 record that noted history of blisters on her right foot, and a May 2020 record noting reports of blisters on the bottom of her feet. Regarding statis pigmentation, the examiner noted that January 2014 record noted ankle edema secondary to lymphedema and venous stasis edema. Regarding the frequency and severity of edema consistent with Diagnostic Code 7120, the examiner noted that c-file supported chronic bilateral lower extremity edema due to lymphedema, and that the Veteran uses Jobst compression stockings. The examiner noted that the January 2014 assessment was ankle edema secondary to lymphedema and venous stasis edema, and that it supported persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. The examiner noted that eczema, intermittent ulceration, or persistent ulceration related to idiopathic lymphedema was not shown in the c-file. After careful review of the evidence, the Board finds that a higher rating is not warranted for the idiopathic lymphedema of the bilateral lower extremities. As previously noted, the RO increased the rating to 20 percent for each leg effective October 13, 2012, the date the increased rating claim was received. For the appeal period from October 13, 2011 to October 13, 2012, there is no medical record that shows the severity of her bilateral idiopathic lymphedema. The record closest to that timeframe is a July 2011 private record, which shows moderate swelling and redness in the right lower extremity. However, a record two days later notes the redness has subsided, and there were no further records of swelling or redness until the January 2013 examination. The February 2010 and July 2010 private records appear to indicate that the swelling was rather intermittent than persistent. Given the foregoing, the preponderance of the evidence is against the showing of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, required for a 20 percent rating. From October 13, 2012, the preponderance of the evidence is against the finding that a rating higher than 20 percent is warranted. A 40 percent rating requires persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Thus, the Veteran's idiopathic lymphedema has to demonstrate persistent stasis pigmentation or eczema along with persistent edema. The January 2013 VA examination noted that the Veteran will develop from time to time a cellulitis in her extremities that requires intravenous or oral antibiotics. From 2014 and forward, there is no record of complaints or treatment for cellulitis. There are intermittent clinical records of venous stasis, cracks from swelling, or athlete's foot. However, the records mainly show persistent swelling in her bilateral lower extremities and use of compression stockings. The records from October 2012 and forward do not reveal persistent stasis pigmentation or eczema. Further, the VA examiner in February 2021 was asked to specifically opine as to how to best describe the Veteran's disability. He indicated that it was best characterized as 'persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema.' This opinion is probative because the examiner reviewed the claims file and discussed the clinical findings therein in support of his opinion. The Board notes that such description is consistent with a 20 percent rating, but not higher. Therefore, a rating higher than 20 percent is not warranted. Lastly, the Veteran's representative requested the Board to consider a referral for extraschedular consideration. See April 2021 appellate brief at 5. The Board has considered whether such action is warranted and concludes that it is not. The initial consideration for determining whether extraschedular referral is warranted is if the evidence presents such an exceptional disability picture so that the available schedular evaluation is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). During the period on appeal, the Veteran has primarily reported symptoms of pain, edema, swelling, cellulitis, cracks, venous statis, and athlete's foot. The rating criteria applicable to rating varicose veins as set forth at 38 C.F.R. §§ 4.104, Diagnostic Code 7120, contemplate these symptoms as Diagnostic Code 7120 is based on the severity and frequency of symptoms of edema of extremity, aching and fatigue in leg, stasis pigmentation, eczema, and ulceration. Further, Diagnostic Code 7120 considers relief of symptoms from elevating the legs or use of compression hosiery, which are precisely the methods the Veteran has used to treat her idiopathic lymphedema. Given the above, the Board finds that the Veteran's idiopathic lymphedema manifestations are reasonably contemplated by the assigned diagnostic code. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. In sum, the preponderance of the evidence is against a rating in excess of 10 percent prior to October 13, 2012; and a rating in excess of 20 percent thereafter, for idiopathic lymphedema of each lower extremity. The appeal for a higher rating is denied. 3. Entitlement to a TDIU is denied. Entitlement to a TDIU was raised by the Veteran in the January 2014 NOD as part of the increased rating claims for idiopathic lymphedema. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal period mirrors the period on appeal for the increased rating claims, which begins on October 13, 2011. In the January 2021 Remand, the Board requested clarification from the Veteran because she indicated in the December 2019 Form 21-8940 that she was unemployed from October 2012 to October 2014, but also noted that her income for the years "2012-2013" was $98,000. She noted she has been working full-time since October 2014. VA sent a letter to the Veteran on January 14, 2021, seeking a completed Form 21-8940 or clarification regarding her employment from October 2011 to October 2014. VA also requested completed Form 21-4192s for the employers during that period. The Veteran has not responded to the letter to date. While failure to provide the requested forms or information is not fatal to a TDIU claim in and of itself, failure to do so deprives the Board of sufficient information as to the Veteran's employment, education, and income necessary to properly address a claim for TDIU. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). In this case, the Veteran is service-connected for idiopathic lymphedema of bilateral lower extremities (rated 10 percent for each lower extremity effective April 1, 2000, and 20 percent effective October 13, 2012). The Veteran is in receipt of a combined evaluation of 20 percent from April 1, 2000, and 40 percent from October 13, 2012. Thus, the schedular criteria for a TDIU are not met. Nevertheless, entitlement to a TDIU still may be granted on an extraschedular basis under 38 C.F.R. § 4.16(b). This additional subpart of this governing VA regulation indicates "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Turning to the evidence, the Veteran's DD Form 214 shows military occupational specialty of "4716-ship's service telephone system PBX [private branch exchange] repairman" for 13 years, and of "9502-instructor" for 512 years. At the January 2013 VA examination for artery and vein conditions, the examiner noted that the Veteran requires work that does not demand extended walking or standing, and allows for frequent breaks from sitting. In a February 2013 email to a VA personnel member, the Veteran stated that she had been hired for a temporary position at a county college. A September 2013 VA treatment record noted that she just moved to California from Illinois since family is nearby. She stated she was laid off from her job in September 2012 as test administrator at a county college. In the February 2014 NOD, she stated that her idiopathic lymphedema conditions have affected her former employment as an interior communications electrician instructor. She stated she has not been able to teach stand-up instructions because of the amount of pain and swelling, and recurrent cellulitis. She stated she has to take time off at times to control the cellulitis flare-up and swelling. She stated her conditions interfered with required plane travel. She stated that because of her extensive experience as an instructor, she now has to apply for positions in other areas which requires additional training and education. She stated she is currently unemployed because she can no longer work due to the severity of her idiopathic lymphedema. In a November 2014 private evaluation record, a clinician noted that the Veteran is limited in standing or sitting for prolonged periods. On the December 2019 Form 21-8940, the Veteran indicated that she was unemployed from October 2012 to October 2014 due to her service-connected idiopathic lymphedema. She also noted her income received for the years 2012-2013 was $98,000. Regarding employment history, she noted she worked full time at a military branch from October 25, 2014 to May 16, 2017 as an instructional designer, earning $5,782 per month, and at a government agency from May 16, 2017 and forward as an instructional designer, earning $8,100 per month. She noted she earned approximately $110, 204 in the past 12 months. She noted that she attended a master's degree program from 2013 to 2016, and earned a master's degree in instructional design and technology in January 2016. She noted that, "in 2013, I had to change my profession due to unemployability from October 2012 to October 2014. I could no longer teach/stand as a classroom instructor due to pain in legs & back." She also noted, "even though I am sedentary in my current job[,] I still have pain all day every day in the lower back & legs." At the January 2020 examination, the Veteran reported she is an instructor for a government agency. The examiner noted that the Veteran's idiopathic lymphedema impacted her ability to work. The Veteran reported she lost 1-2 weeks of work time in the last 12 months due to her diagnosed condition. She stated that her job requires some walking, which aggravates her leg. She stated she calls out of work when the pain is severe. After careful review of the evidentiary record, the Board finds that there is no basis to refer this matter to the Director of Compensation Service for extraschedular consideration. The Veteran noted on Form 21-8940 that she had to change her profession in 2013 due to unemployability from October 2012 to October 2014, but she also noted that she earned $98,000 for the years 2012-2013. She stated in a February 2013 email to a VA personnel that she has obtained a temporary job at a county college. While it appears that she may have had a brief period of time between October 2012 and October 2014 when she was not working, the evidence is not clear in that regard. The information provided appears to indicate that she held some form of employment during that period because she stated she obtained a temporary job in February 2013, and she also reported income of $98,000 in the years 2012-2013. Most importantly, the Veteran has not responded to the January 2021 request for clarifying employment information from October 2011 to October 2014. Due to the lack of clarification from the Veteran, and conflicting information suggesting employment during the period in question, the Board is unable to determine with any accuracy whether the Veteran was indeed employed between October 2012 and October 2014, and/or whether she had a form of sheltered employment during such time. Due to the lack of cooperation from the Veteran in this respect, and the conflicting information available, the Board is unable to find that the economic component of Ray is met. In other words, there is not probative or compelling evidence that her service-connected disabilities resulted in her earning no more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. The Board further notes that any appeal period during which the Veteran was fully employed would preclude entitlement to a TDIU. But, to the extent that she was not employed, or was marginally employed, the non-economic component as discussed in Ray is also not met. Regarding physical limitations, the evidence shows difficulties due to the Veteran's idiopathic lymphedema. However, it does appear to preclude the types of employment for which she has relevant training and experience. The January 2013 and November 2014 evaluations reveal the Veteran needs to have a job that does not demand extended walking or standing, and allows for frequent breaks from sitting. However, her disability does not appear to preclude her from obtaining an instructor job or a related job that does not require prolonged walking or standing. She could have pursued instructor positions consistent with her education and experience with less movement of the body and with rest breaks, and one that allows use of a chair to provide relief from standing or walking. Further, she could have pursued related positions such as administrative or office positions related to teaching that did not require prolonged walking or standing. Importantly, the Veteran noted on Form 21-8940 that she could no longer teach due to pain in her legs and back. She has not been service connected for a back condition, and it is unclear how much of her unemployability claim is attributable to solely service-connected idiopathic lymphedema. In short, the Board finds that the Veteran could perform employment consistent with her education and experience with less movement of the body, and one that allows accomodation to provide relief to idiopathic lymphedema. Regarding mental limitation, the record did not reveal mental inability to perform gainful employment due to her service-connected disabilities. The Court in Ray held that the appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Based on the Board's review, the evidentiary record fails to demonstrate that the Veteran was unemployable due to her service-connected idiopathic lymphedema. Accordingly, there is no basis to refer this matter to the Director of Compensation Services for extraschedular consideration. In sum, the preponderance of the evidence is against entitlement to a TDIU. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Associate 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.