Citation Nr: 18160496
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 10-26 306
DATE:	December 27, 2018
ORDER
Entitlement to an initial increased rating in excess of 40 percent for lymphedema of the left lower extremity is denied.
Entitlement to an initial increased rating in excess of 40 percent for lymphedema of the right lower extremity is denied.
FINDINGS OF FACT
1. For the entire appeal period, the Veteran’s lymphedema of the left lower extremity is manifested by, at most, persistent edema and stasis pigmentation, without ulceration and without subcutaneous induration. His symptoms of pain, aching, and fatigue are relieved by elevation of the left lower extremity and use of compression hosiery.
2. For the entire appeal period, the Veteran’s lymphedema of the right lower extremity is manifested by, at most, persistent edema and stasis pigmentation, without ulceration and without subcutaneous induration. His symptoms of pain, aching, and fatigue are relieved by elevation of the right lower extremity and use of compression hosiery.
CONCLUSIONS OF LAW
1. For the entire appeal period, the criteria for entitlement to an increased rating in excess of 40 percent for lymphedema of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.3, 4.7, 4.9-4.14, 4.104, Diagnostic Code 7121.
2. For the entire appeal period, the criteria for entitlement to an increased rating in excess of 40 percent for lymphedema of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.3, 4.7, 4.9-4.14, 4.104, Diagnostic Code 7121.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the Navy from May 1980 to May 1984 and from September 1986 to March 2009. 
This matter is on appeal before the Board of Veterans’ Appeals (Board) from a rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) dated April 2009. The rating decision, in pertinent part, granted service connection for compartment syndrome and lymphedema of lower extremities with a noncompensable rating. The Veteran perfected his appeal. In June 2018, after two Board remands (May 2015 and January 2017), the AOJ increased the rating and granted the Veteran two separate ratings for his disability: 40 percent for lymphedema of the left lower extremity under Diagnostic Code 7121 for the entire appeal period, and 40 percent for lymphedema of the right lower extremity under Diagnostic Code 7121 for the entire appeal period. These issues have been returned to the Board for reconsideration.
Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Thus, any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions.
As the Veteran has lymphedema in both lower extremities, and the medical evidence for each claim is identical, the Board will analyze the evidence regarding the two claims together. However, the Veteran will still receive a separate rating for each lower extremity. 
Increased rating in excess of 40 percent for lymphedema of the left lower extremity, increased rating in excess of 40 percent for lymphedema of the right lower extremity. 
The Veteran’s left lower extremity lymphedema and right lower extremity lymphedema, which were previously diagnosed as compartment syndrome with left lower extremity fasciotomy and right lower extremity fasciotomy, respectively, are evaluated under Diagnostic Code 7121 pertaining to post-phlebitic syndrome (which refers to the long-term complications of deep vein thrombosis (DVT)) of any etiology. 38 C.F.R. § 4.104. Under such rating criteria, a 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. 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 indurations, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7121. These criteria are successive and cumulative. As such, to establish entitlement to a higher rating, the Veteran must have all of the symptoms listed for the rating criteria. See Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013) (holding that the use of the conjunctive “and” means that all successive and cumulative elements of a higher rating must be met in order to warrant that rating).
First and foremost, the Board concludes that Diagnostic Code 7121 is appropriate in this case. As noted, Diagnostic Code 7121 is assigned to post-phlebitic syndrome of any kind, and the rating is based on findings attributed to venous disease. The medical records are clear that the Veteran’s symptoms are attributable to a venous disease, and that he has a history of DVT. Therefore, this Diagnostic Code is applicable to both the right and left lower extremities. 
The medical evidence of record related to the claim for an initial increased rating consists of a November 2008 VA examination, a December 2009 VA examination, a June 2012 VA examination, a March 2017 VA examination, and a November 2017 addendum opinion, as well as the Veteran’s VA treatment records dated throughout the appeal period. Also of record are the Veteran’s lay statements describing his symptoms. Each is summarized below.
At a VA examination in November 2008, the examiner noted that the Veteran wore compression stockings. The Veteran reported symptoms of swelling in both legs, and pain following long standing or long sitting. He reported being easily fatigued. The examiner observed edema in both legs, slight tenderness, and discoloration in the lower leg medial areas. In November 2008, there was no mention of constant pain, board-like edema, subcutaneous induration, eczema, or ulceration. 
At an examination in December 2009, the Veteran reported symptoms of fatigue, bilateral lower extremity swelling, and bilateral leg pain. The pain was a burning, squeezing, and aching sensation, and occurred almost daily with activity. Both compression stockings and elevation of the extremities diminished the intensity of the pain. On physical examination, no edema was noted around the Veteran’s bilateral lower extremity surgical scars, but lymphedema was observed. There was no mention of constant pain, board-like edema, discoloration or stasis pigmentation, subcutaneous induration, eczema, or ulceration.
At a VA examination in June 2012, the Veteran endorsed the following symptoms in both legs related to his lymphedema: aching and fatigue after prolonged standing or walking, and intermittent edema. The Veteran reported that his symptoms were relieved by elevation of the extremities and by compression hosiery. The examiner did not find evidence of the following: incipient or persistent stasis pigmentation or eczema; intermittent or persistent ulceration; persistent edema; persistent subcutaneous induration; massive board-like edema; or constant pain at rest. In June 2012, the examiner concluded that the Veteran’s vascular condition impaired his ambulation. 
The Veteran underwent another VA examination in March 2017. The Veteran endorsed the following symptoms: aching in both legs after prolonged standing and walking; and fatigue in both legs after prolonged walking and standing. The examiner made findings of persistent stasis pigmentation and intermittent edema of both extremities. The examiner did not find evidence of the following: beginning or persistent eczema; intermittent or persistent ulceration; persistent edema or persistent edema that is incompletely relieved by elevation of extremity; persistent subcutaneous induration; massive board-like edema; or constant pain at rest. The examiner noted that the Veteran had intermittent swelling of both lower extremities with standing and walking, as well as fatigue. She found that the Veteran’s lymphedema was “well-controlled” with stockings and with keeping the lower extremities elevated. However, she also noted that the Veteran’s chronic lymphedema was “partially relieved” by elevation and wearing of compression stockings. After reviewing the VA outpatient treatment records, the examiner found that the Veteran had developed stasis dermatitis of both lower extremities in 2014, and also noted stasis dermatitis during the examination. Finally, the examiner concluded that the Veteran’s lymphedema of both lower extremities was quiescent. 
The November 2017 VA addendum opinion clarified the frequency and degree of severity of the Veteran’s symptoms. The examiner noted that lymphedema is different from pitting edema; the latter could be intermittent, but the Veteran’s condition is chronic and persistent. In concluding that his edema is persistent, the examiner observed that the Veteran experienced chronic swelling, primarily in the lower extremities, fatigue, and severe impairment of daily activities. 
As noted, the Veteran has received outpatient treatment through VA for his left lower extremity lymphedema and right lower extremity lymphedema. The records reflect that the Veteran complained of edema and/or pain in the bilateral lower extremities at doctor visits in the following months: June 2009; August 2009; November 2009; December 2009; February 2010; September 2010; February 2011; November 2011; March 2012; June 2012; November 2012; April 2013; June 2013; October 2013; December 2013; February 2014; March 2014; April 2014; October 2014; December 2014; May 2015; and April 2017. The records also reflect that the Veteran developed venous stasis or stasis dermatitis as early as March 2014, and these symptoms were again noted in October 2014. The records consistently reflect that the bilateral lower extremity pain and swelling are alleviated by stockings and foot elevation. There is no mention in the Veteran’s outpatient records of any eczema, ulcers, subcutaneous induration, massive board-like edema, or constant pain at rest in either lower extremity.
The Veteran explained that his lymphedema significantly affects his daily life. He is unable to stand, sit, or walk for long periods without fatigue. In his Form 9, received in May 2010, he said that he experienced constant pain and burning sensation in his legs. The Veteran explained that his legs swell within 2 to 3 hours of waking, and he needs to elevate them for relief, and that he does this 3 to 4 times daily. The Veteran also explained that he wears stockings to help with the swelling. 
On his behalf, the Veteran’s representative filed an appellate brief each time these issues were before the Board. The March 2015 brief argues that another VA examination was required, as the Veteran experienced flare-ups, and an examination was required during the active stage or outbreak of a disability. Ardison v. Brown, 6 Veteran. App. 405 (1994); Bowers v. Derwinski, 2 Veteran. App. 675 (1992). When the brief was filed in March 2015, it had been almost 2 years since the most recent VA examination, and as a result, the representative argued for a more contemporaneous evaluation of the Veteran’s disability. The two subsequent briefs from July 2016 and October 2018 do not advance any additional arguments or evidence for consideration.
After conducting a de novo review of the evidence, the Board concludes that an increase to a rating in excess of 40 percent for left lower extremity lymphedema is not warranted. The Board also concludes that an increase to a rating in excess of 40 percent for right lower extremity lymphedema is not warranted.
As noted above, under Diagnostic Code 7121, the Veteran can receive a 60 percent rating for persistent edema or subcutaneous indurations, stasis pigmentation or eczema, and persistent ulceration. A maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. 
An increased rating of 60 percent is not warranted in this case. The VA examinations in November 2008, a December 2009, June 2012, and March 2017 all noted that the Veteran did not have any ulceration in either of his lower extremities. All the VA outpatient records similarly show no ulceration. Since a rating of 60 percent requires persistent ulceration, and there is no evidence in the record of ulceration, the Veteran does not qualify for a 60 percent rating. It is not sufficient to have persistent edema, which the Board notes the Veteran has, as the Diagnostic Code requires both persistent edema and persistent ulceration. Moreover, the Veteran’s persistent edema is contemplated by his current 40 percent rating.
Similarly, an increased rating to 100 percent is not warranted in this case. The VA opinion from March 2017 found that the Veteran had persistent edema, but not massive board-like edema. The VA examinations show that the Veteran did not have constant pain at rest, as his pain appears to be caused by walking and standing, and is alleviated by elevating his lower extremities and by wearing compression hosiery. The outpatient records similarly show no constant pain at rest. However, in May 2010, the Veteran reported constant pain and burning in his legs, which he is competent to report. The Board finds this report of pain credible, but gives it little weight as it conflicts with the voluminous medical records. Moreover, constant pain alone would not warrant an increased rating. Since a 100 percent rating requires both massive board-like edema and constant pain at rest, and the medical records show neither, the Veteran does not qualify for a 100 percent rating.
The preponderance of the evidence is against the claim for a rating of the left lower extremity lymphedema in excess of 40 percent. The preponderance of the evidence is against the claim for a rating of the right lower extremity lymphedema in excess of 40 percent. The benefit-of-the-doubt rule does not apply and entitlement to an increased initial rating in excess of 40 percent is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



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Finally, regarding the arguments in the appellate brief, the Board notes that a new VA examination was requested in 2015, and one was provided after Board remand in 2017. At this stage, another examination is not required. The Board has relied on the November 2017 addendum opinion in concluding that the Veteran’s condition is chronic and persistent. Because it is, by definition, persistent in nature, there are no flare ups requiring a new examination. 
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Smith, Associate Counsel 

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