Citation Nr: 23041004 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 10-43 036 DATE: July 26, 2023 REMANDED Entitlement to a rating in excess of 20 percent for left upper extremity lymphedema, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to November 2003. This appeal originates from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). After several Board remands, a February 2021 Board decision denied entitlement to a rating in excess of 20 percent for left upper extremity lymphedema, to include on an extraschedular basis. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. In December 2021, the Court granted a Joint Motion for Remand, vacating the February 2021 Board decision and remanded the matter for further development. A May 2022 Board decision remanded the claim consistent with the Joint Motion. This matter returns to the Board following an October 2022 Board of Veterans' Appeals (Board) remand for further development. The Board finds that there has not been substantial compliance with the remand requests. Therefore, this claim must again be remanded. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a July 2015 hearing before a Veterans Law Judge who is no longer with the Board. In July 2018, the Veteran testified at hearing before the undersigned Veterans Law Judge. The transcripts of both hearings are of record. Entitlement to a rating in excess of 20 percent for left upper extremity lymphedema, to include on an extraschedular basis, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to a rating in excess of 20 percent for left upper extremity lymphedema. In response to the December 2021 Joint Motion, a May 2022 Board decision remanded the claim to obtain a current VA examination and medical opinion for the service-connected left upper extremity lymphedema. The Board requested an examination by a medical doctor to determine the current severity of service-connected lymphedema of the left upper extremity. The RO scheduled the Veteran for an August 2022 VA examination. However, the examination was inadequate, as the examination and opinion were provided by a nurse practitioner and not a medical doctor, as requested by the Board. In October 2022, the Board remanded the claim to obtain a current examination and medical opinion from a medical doctor to determine the current severity of the service-connected left upper extremity lymphedema. The examiner was instructed to (1) determine the current severity of service connected lymphedema of the left upper extremity (2) provide a full description of the disability and report all signs and symptoms, with particular attention to edema, stasis pigmentation, eczema, and ulceration (3) note any discoloration, rashes, and cellulitis (4) discuss the November 2017 treatment notes and November 2019 VA examination that showed the Veteran's arm circumference measurements (5) identify any symptoms and functional impairments due to lymphedema in the left upper extremity alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living (6) discuss any treatment and hospitalizations related to the lymphedema. The request noted that the examiner must review the claims file and should note that review in the report. All indicated tests and studies were to be accomplished with all clinical findings reported in detail. In response to the October 2022 Board remand request, the RO scheduled the Veteran for a December 2022 VA examination with a medical doctor. In a December 2022 VA examination, the examiner opined that the Veteran's lymphedema was not a vein or artery disease, but rather it was a condition of the lymph nodes and lymphatic channels. The examiner stated the circumference measurements of the Veteran's left upper extremity were not pertinent to edema, as the condition was not muscle atrophy. On examination, the examiner noted that cellulitis, rashes, or discoloration were not present, and the pulse distal arteries were indicated as normal. The report documented that no testing was needed and noted that an ABI test for arterial disease was not performed. No additional information was noted regarding other tests or studies. The report noted mild impairment related to the daily activity of dressing, due to the size of the left arm in relation to certain types of clothing. The report also noted moderate left arm impairment related to housework, dressing, and hygiene. A negative functional impact was indicated regarding the Veteran's ability to work and documented that 0 to 1 week of work time was lost in the past 12 months. Additional notes indicated that the lymphedema impaired writing, typing, and gripping with the left hand. The report stated "see notes below" for additional comments related to treatment and hospitalizations. However, the additional notes were not located in that section of the report as indicated by the examiner's comment. The Board finds that the December 2022 medical opinion is incomplete and inadequate. The examination report and the medical opinion do not clearly identify the current symptoms experienced by the Veteran upon examination. The Board's remand request stated that all indicated tests and studies were to be accomplished with all clinical findings reported in detail. The examiner reported that no tests were necessary, but a rationale was not provided for that opinion. The examiner's opinion did not fully discuss or reconcile the November 2017 treatment notes and November 2019 examination report. The opinion noted the Veteran's left arm circumference measurements were not pertinent to edema, but the report did not provide a rationale for that opinion. The opinion did not discuss all relevant evidence of record, to include the Veteran's recent July 2021 hospitalization. The opinion was generally unresponsive to the Board's remand requests and did not provide the Board with sufficient information to properly adjudicate the claim. The Board notes that the VA has a statutory duty to assist the Veteran that includes the duty to conduct a thorough and contemporaneous examination, so that the rating of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate or incomplete VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). After a review of the December 2022 medical opinion, the Board finds that the opinion does not comply with the remand requests. An adequate examination and opinion must be obtained to assist the Board in assessing the possibility of worsening symptoms for the period on appeal. The Board finds that there has not been substantial compliance with the Board's remand requests and remand is again required for an adequate examination and opinion. It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, if needed, without good cause, may include denial of the claim. 38 C.F.R. § 3.655. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file, to specifically include any hospitalization records related to treatment for lymphedema of the left upper extremity. All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 2. Schedule the Veteran for an examination by a medical doctor in the field of vascular medicine, who has not previously examined the Veteran or provided an opinion in conjunction with this claim, to determine the current severity of service-connected lymphedema of the left upper extremity. The examiner must review the claims file, to include all Board remands, and should note that review in the report. The examiner is reminded that the February 2021 Board decision was vacated. The examiner should: (a.) Confirm that the examiner is a medical doctor in the field of vascular medicine, who has not previously examined the Veteran or provided an opinion in conjunction with this claim. (b.) Provide a full description of the disability and report all signs and symptoms, with particular attention to edema, stasis pigmentation, eczema, and ulceration. Any discoloration, rashes, and cellulitis must be noted. (c.) The examiner must discuss and reconcile the November 2017 treatment notes and November 2019 VA examination showing the Veteran's arm circumference measurements. (d.) Identify any symptoms and functional impairments due to lymphedema in the left upper extremity. The examiner must document whether the Veteran is left hand dominant. (e.) Discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. (f.) The examiner should elicit a full medical history from the Veteran, to include dates and locations of any hospitalizations for the lymphedema of the left upper extremity. (g.) The examiner must identify and discuss details of any treatment and details of hospitalizations related to lymphedema of the left upper extremity. (h.) Specifically address and reconcile the opinion with the findings and conclusions in all prior VA examinations of record for the Veteran's lymphedema disability. (i.) The examiner is advised that the Veteran is competent to report symptoms. The examiner must consider and address the Veteran's lay statements regarding worsening symptoms, to include statements made in prior VA examinations and the July 2015 and July 2018 hearing testimony. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Malec, Jennifer L. 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.