Citation Nr: 1629897 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 10-22 462A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the reduction of the evaluation for the Veteran's carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, effective October 1, 2008, was proper. 2. Entitlement to a rating in excess of 40 percent for residuals of carcinoma of the right breast, status post lumpectomy, from October 1, 2008, to March 2, 2012. 3. Propriety of the assignment of a separate rating for bilateral mastectomies associated with residuals of carcinoma of the right breast, status post lumpectomy, evaluated 50 percent disabling as of March 2, 2012. 4. Propriety of the assignment of a separate rating for right arm lymphedema evaluated as 40 percent disabling as of October 1, 2008. 5. Propriety of the assignment of a separate rating for acute cystitis evaluated as noncompensably disabling as of October 1, 2008. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active service from November 1975 to April 1976 and February 1977 to October 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which reduced the Veteran's rating for carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, effective October 1, 2008. Thereafter, the Veteran perfected an appeal as to the propriety of the reduction as well as a claim for increase. In June 2015, the Board remanded the case for additional development and it now returns for appellate review. While on remand, in a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a separate ratings for each of the following disabilities, finding each a residual of carcinoma of the right breast: acute cystitis, noncompensably disabling, effective October 1, 2008; right arm lymphedema, 40 percent disabling, effective October 1, 2008; and bilateral mastectomies, 50 percent disabling, effective March 2, 2012. The AOJ also increased the rating for the Veteran's right breast, status post lumpectomy, to 40 percent, effective from October 1, 2008, to March 2, 2012. While the Veteran did not appeal the January 2016 rating decision with respect to the propriety of the newly assigned ratings or effective dates, such issues are part and parcel of her claim of entitlement to a higher rating for residuals of carcinoma of the right breast. Therefore, the Board has jurisdiction over such issues and they have been included on the title page of this decision. Additionally, as the increased rating for residuals of carcinoma of the right breast, status post lumpectomy, did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of the propriety of the assignment of a separate rating for bilateral mastectomies associated with residuals of carcinoma of the right breast, status post lumpectomy, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran was diagnosed with carcinoma of the right breast in 2003 and underwent chemotherapy and radiation therapy until November 2003. 2. In a December 2006 rating decision, the RO proposed to reduce the disability rating for the Veteran's carcinoma of the right breast from 100 percent to 30 percent; the RO promulgated the reduction in a July 2008 rating decision and the Veteran's rating was decreased to 30 percent effective October 1, 2008. 3. The reduction of the Veteran's rating for carcinoma of the right breast from 100 to 30 percent as of October 1, 2008, was supported by the evidence contained in the record at the time of the reduction and was made in compliance with applicable due process laws and regulations. 4. From October 1, 2008, to March 2, 2012, residuals of carcinoma of the right breast, status post lumpectomy, more nearly approximated simple mastectomy or wide local excision with significant alteration of size or form of both breasts. 5. For the entire period on appeal, the Veteran's right arm lymphedema manifested pain, swelling, tingling, and discomfort as well as edema, ranging from not present or slight to moderate, impairing her ability to write and draw toward the end of the day. 6. For the entire period on appeal, the Veteran's acute cystitis has manifested, at worst, with voiding five or more times per night. CONCLUSIONS OF LAW 1. The reduction of the rating assigned for carcinoma of the right breast from 100 to 30 percent, effective October 1, 2008, was proper. 38 U.S.C.A. งง 1155, 5107 (West 2014); 38 C.F.R. งง 3.105, 3.344, 4.117, Diagnostic Code 7627 (2015). 2. The criteria for a 50 percent rating for residuals of carcinoma of the right breast, status post lumpectomy, from October 1, 2008, to March 2, 2012, have been met. 38 U.S.C.A. งง 1155, 5107 (West 2014); 38 C.F.R. งง 3.321, 4.1, 4.3, 4.7, 4.10, 4.116, Diagnostic Code 7626 (2015). 3. The criteria for a rating in excess of 40 percent for right arm lymphedema have not been met. 38 U.S.C.A. งง 1155, 5107 (West 2014); 38 C.F.R. งง 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.104, Diagnostic Code 7121 (2015). 4. The criteria for a 40 percent for acute cystitis have been met. 38 U.S.C.A. งง 1155, 5107 (West 2014); 38 C.F.R. งง 3.321, 4.1, 4.3, 4.7, 4.10, 4.115, 4.115a, 4.115b, Diagnostic Code 7512 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. งง 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R งง 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. ง 5103(a); 38 C.F.R. ง 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. ง 5103(a) and 38 C.F.R. ง 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. ง 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). As to the issue of entitlement to an increased rating for residuals of carcinoma of the right breast, status post lumpectomy, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an February 2009 letter, sent after the initial unfavorable decision issued in July 2008, advised the Veteran of the evidence and information necessary to substantiate her increased rating claim as well as her and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised her of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Although the notice was provided after the initial decision on the claim, the claim was properly readjudicated after the notice most recently in an October 2015 supplemental statement of the case, which cured any timing-of-notice defect The issues regarding the propriety of the initially assigned ratings for right arm lymphedema and acute cystitis stem from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, ง 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claims for service connection were granted and an initial ratings were assigned in the January 2016 rating decision. Therefore, no additional 38 U.S.C.A. ง 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Additionally, certain notice considerations apply when reduction in the evaluation of a service-connected disability is contemplated. If the contemplated lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and must be given 60 days to present additional evidence to show that compensation payments should be continued at the present level. See 38 C.F.R. ง 3.105(e). After completing the predetermination procedures specified in 38 C.F.R. ง 3.105(e), the RO must send the Veteran written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. Id. Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. ง 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. Id. In the instant case, a December 2006 notice letter sent in connection with the rating decision proposing to reduce the rating for carcinoma of the right breast, status post lumpectomy, provided the Veteran with notice of the proposed reduction and informed her that she could submit medical or other evidence to show why the reduction should not be made. She was also notified that she could request a personal hearing so that she could provide testimony on this matter. She was further informed that, if she did not request a hearing or submit additional evidence within 60 days, the RO would make a decision based on the evidence of record. Thereafter, the Veteran submitted additional evidence regarding the severity of residuals of her carcinoma of the right breast, status post lumpectomy. Subsequently, in an July 2008 rating decision, after waiting the requisite time period, the RO executed the reduction in the Veteran's rating for carcinoma of the right breast, status post lumpectomy from 100 percent to 30 percent effective October 1, 2008, i.e., greater than 60 days from the date of the notice of action, and provided the reasons for the action and the evidence upon which the action was based. Therefore, the Board finds that the RO followed the proper notice procedures for the reduction of the Veteran's rating. Relevant to the duty to assist, the Veteran's service treatment records and post-service treatment records have been obtained and considered. In November 2015, she reported that she underwent additional reconstructive breast surgery on October 15, 2015. Records of such are relevant to the issue of entitlement to an increased rating for bilateral mastectomies, which has been in effect since March 2, 2012. However, the Veteran does not assert and the evidence does not suggest that such records may be relevant to the issues decided herein, that is, the severity of residuals of carcinoma of the right breast, status post lumpectomy, from October 1, 2008, to March 2, 2012, or the propriety of the assignment of separate ratings for right arm lymphedema and acute cystitis. Accordingly, she has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was afforded VA examinations in July 2004, January 2006, May 2009, and June 2014. Neither the Veteran nor her representative has alleged that such are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the issues decided herein as they include an interview with the Veteran, a review of the record, and a full examination, addressing the relevant rating criteria. As indicated previously, in June 2015, the Board remanded the case to allow the AOJ to readjudicate the appeal based on the entirety of the evidence, which the AOJ completed in the October 2015 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the June 2015 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Propriety of Reduction The Veteran asserts that the reduction of the evaluation for carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, effective October 1, 2008, was improper. The RO originally granted service connection for the disability, which was then characterized as fibrocystic breast disease, by way of a June 1996 rating decision. In an October 2003 rating decision, the RO granted an increase to 100 percent under Diagnostic Code 7627 based on occurrence of carcinoma, effective March 24, 2003, the date carcinoma was confirmed. Under Diagnostic Code 7627, a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of ง 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. ง 4.116, Note. In April 2003, the Veteran underwent right breast lumpectomy and axillary node dissection. The carcinoma was subsequently treated with radiation and chemotherapy until November 2003. In July 2004, the Veteran was scheduled for a mandatory VA examination, which along with all subsequent evidence of record, was negative for any recurrence. In December 2006, VA proposed to reduce the Veteran's rating for carcinoma of the right breast, status post lumpectomy. In July 2008, VA reduced the rating for carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, under Diagnostic Code 7626, based on breast surgery, effective October 1, 2008. In January 2016, the AOJ increased the rating for residuals of carcinoma of the right breast, status post lumpectomy, to 40 percent, effective from October 1, 2008, to March 2, 2012. Based on the evidence of record, the Board finds that the reduction of the evaluation for the Veteran's carcinoma of the right breast, status post lumpectomy, was proper. First, as discussed above, the reduction was procedurally in accordance with the provisions of 38 C.F.R. ง 3.105. Second, the RO afforded the Veteran a VA examination in July 2004, which was more than six months after discontinuance of radiation and chemotherapy in November 2003, and thus, in accordance with the provisions of 38 C.F.R. ง 4.116, Diagnostic Code 7627, Note. Additionally, there is no evidence of recurrence or metastasis since the November 2003 treatment. Third, the July 2004 VA examination provided a sufficient evidentiary basis for the reduction. Ratings that have been in effect for five years or more are governed by ง 3.344(a) and (b), which provide that any rating reduction is valid only if, after a review of the entire record of examinations and the medical-industrial history, it is based upon an examination that is at least as complete as the examination that formed the basis for the original rating. See Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). Ratings that have been continued for less than five years are governed by ง 3.344(c), which provides that a reexamination disclosing improvement is sufficient to warrant a reduction in rating. Here, as the 100 percent rating was in effect from March 24, 2003, through September 31, 2008, which is more than five years, ง 3.344(a) and (b) govern the propriety of the reduction. The primary basis for the award of a 100 percent rating was the September 2003 VA examination report that confirmed carcinoma of the right breast with lumpectomy with sentinel node removal from the right axilla. The primary basis for the reduction to 30 percent was the July 2004 VA examination report, which confirmed the completion of carcinoma treatment and its non-recurrence. The report was based on a review of the record and an examination that was at least as complete as the examination that formed the basis for the 100 percent rating. See Kitchens, 7 Vet. App. at 324. Significantly, the Board finds that the eradication of carcinoma demonstrates clear evidence of material improvement. Therefore, the Board finds that a reduction from 100 to 30 percent was proper under 38 C.F.R. ง 3.344(a) and (b). In sum, the Board finds that the reduction of the evaluation for the Veteran's carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, effective October 1, 2008, was proper. III. Increased Rating Claims a. Applicable Legal Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. ง 1155; 38 C.F.R. งง 4.1, 4.2, 4.10. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. ง 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. ง 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. ง 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. ง 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. ง 4.10. b. Residuals of Carcinoma of the Right Breast, Status Post Lumpectomy The Veteran seeks a rating in excess of 40 percent for residuals of carcinoma of the right breast, status post lumpectomy, from October 1, 2008, to March 2, 2012. The disability is currently rated under Diagnostic Code 7626, on the basis of breast surgery, which, as discussed below, is the predominant residual of her carcinoma. Under Diagnostic Code 7626, wide local excision without significant alteration of size or form of one or both breasts warrants a noncompensable rating. A 30 percent rating is warranted for simple mastectomy or wide local excision with significant alteration of size or form of one breast. A 40 percent rating is warranted for modified radical mastectomy of one breast. A 50 percent rating is warranted for simple mastectomy or wide local excision with significant alteration of size or form of both breasts or radical mastectomy of one breast. A 60 percent rating is warranted for modified radical mastectomy of both breasts. An 80 percent rating is warranted for radical mastectomy of both breasts. A radical mastectomy means removal of the entire breast, underlying pectoral muscles, and regional lymph nodes up to the coracoclavicular ligament. Modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast). Pectoral muscles are left intact. Simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but lymph nodes and muscles are left intact. Wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. 38 C.F.R. ง 4.116, Diagnostic Code 7626, Notes 1-4. Historically, the Veteran was diagnosed with right breast carcinoma in 2003. In April 2003, she underwent right breast axillary node dissection and lumpectomy with wide local incision, which resulted in an 18% reduction in size of the right breast as compared to the left. See, e.g., VA examination (January 2006). The carcinoma was subsequently treated with radiation and chemotherapy until November 2003. See, e.g., VA examination (July 2004). In August 2007, the Veteran underwent surgical revision of the right breast lumpectomy and left breast lift, to create symmetry between breasts. See, e.g., Dr. Wang (December 10, 2007). The Veteran subsequently developed a right breast deformity secondary to seroma contracture. In November 2010, she underwent right breast simple mastectomy with abdominal TRAM flap. Treatment records show that the nipple and underlying muscle remained intact. See, e.g., University Health System (November 2, 2010). In August 2011, the Veteran underwent right breast reconstruction, including nipple reconstruction, to make the right breast symmetrical with the left. See Baptist Health System (August 26, 2011). In March 2012, the Veteran underwent right breast revision with excision of fat necrosis and left breast scar revision and steroid injection. See, e.g., Baptist Health System (March 2, 2012). After resolving any reasonable doubt in favor of the Veteran, the Board finds that from October 1, 2008, to March 2, 2012, residuals of carcinoma of the right breast, status post lumpectomy, more nearly approximated simple mastectomy or wide local excision with significant alteration of size or form of both breasts. The Board notes that the August 2007 left breast lift is a residual of carcinoma of the right breast because the left breast would not have had to undergo lift but for carcinoma and required right breast lumpectomy. Additionally, the record reflects that the Veteran has undergone multiple surgical procedures on both breasts. Given the significant alteration of size of the left and right breasts as a result of the multiple surgical procedures, the Board finds that a 50 percent rating is warranted. The Board finds that from October 1, 2008, to March 2, 2012, the residuals of carcinoma of the right breast, status post lumpectomy, did not more nearly approximate modified radical mastectomy of both breasts, which warrants a 60 percent rating, or radical mastectomy of both breasts, which warrants an 80 percent rating. Modified radical mastectomy means removal of the entire breast and axillary lymph nodes (in continuity with the breast). During this period of the appeal, the Veteran's left breast was lifted for cosmetic purposes (November 2010). There is no evidence that the entire breast and axillary lymph nodes were removed. As such, the next higher rating, a 60 percent, is not warranted on the basis of modified radical mastectomy of both breasts. Additionally, the Veteran's right pectoralis muscles have remained intact, see, e.g., University Health System (November 2, 2010), and the evidence does not indicate that her regional lymph nodes were removed to the coracoclavicular ligament. As such, an 80 percent rating is not warranted. In sum, a 50 percent rating, but no higher, for the residuals of carcinoma of the right breast, status post lumpectomy, is warranted from October 1, 2008, to March 2, 2012. c. Right Arm Lymphedema The Board has also considered whether a rating in excess of 40 percent is warranted for right arm lymphedema. In determining the appropriate rating criteria for the Veteran's right arm lymphedema, the Board notes at the outset that there is no diagnostic code specifically for this condition. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. ง 4.20 (2015). The RO has rated the Veteran's lymphedema by analogy under 38 C.F.R. ง 4.104, Diagnostic Code 7115, for thrombo-angiitis obliterans. However, as discussed below, the Board finds Diagnostic Code 7121, for post-phlebitic syndrome of any etiology, to be the most appropriate Code by which to evaluate the Veteran's lymphedema. Under Diagnostic Code 7115, a 20 percent rating is warranted for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A 40 percent rating is warranted for claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A 60 percent rating is warranted for claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 C.F.R. ง 4.104, Diagnostic Code 7115. Under Diagnostic Code 7121, a 0 percent rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted for 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 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. ง 4.104, Diagnostic Code 7121. Any rating assigned may not exceed 80 percent, that is, the rating that would be assigned for amputation of the right, major upper extremity below the deltoid. See 38 C.F.R. งง 4.68, 4.71a, Diagnostic Code 5122 (evaluating upper extremity amputation) (2015). The medical evidence shows that the Veteran's right arm lymphedema is a residual of the service-connected carcinoma of the right breast, status post lumpectomy. See, e.g., VA treatment record (June 20, 2005). Throughout the pendency of the appeal, the Veteran has described pain, swelling, tingling, and discomfort in right arm, which has been treated with a compression sleeve and physical therapy. See, e.g., Statement (February 19, 2009). The Veteran's reported symptoms are consistent with medical treatment records and VA examination reports. See, e.g., VA examinations (January 2006, May 2009); VA treatment record (August 19, 2008). As to swelling, VA and private treatment providers have noted slight edema, occasionally noting no edema. See VA treatment records (August 25, 2008; October 11, 2008) (noting no edema); Dr. Wang (October 26, 2009) (noting slight edema). In May 2009, a VA examiner explained that the Veteran experienced increased swelling and discomfort upon use throughout the day, causing difficulty with writing and drawing. The Board finds that the Veteran's right arm lymphedema has manifested by feelings of pain, swelling, tingling, and discomfort as well as edema that had ranged from not present or slight to more moderate, resulting in difficulty writing and drawing toward the end of the day. As such, Diagnostic Code 7121 provides more appropriate criteria for evaluating the Veteran's right arm lymphedema than Diagnostic Code 7115. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). As to anatomical localization, the rating criteria of Diagnostic Code 7115 contemplate vein/artery dysfunction of the lower extremities, while Diagnostic Code 7121 provides broader criteria to evaluate vein/artery dysfunction of any etiology. As to symptomatology and functions affected, the Veteran's symptoms of lymphedema, a condition of localized fluid retention and tissue swelling, parallel the criteria of Diagnostic Code 7121, namely, edema, aching, fatigue after prolonged use, and use of compression hosiery. However, the Veteran's symptoms do not parallel the criteria of Diagnostic Code 7115, namely, diminished peripheral pulses, trophic changes, persistent coldness, and ischemic ulcers. For these reasons, the Board finds that the Veteran's right arm lymphedema is appropriately rated under Diagnostic Code 7121. As discussed above, under Diagnostic Code 7121, the next higher rating, 60 percent, is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. The Board finds that the Veteran's symptoms do not more nearly approximate the criteria for the 60 percent disability ratings. The medical evidence of record shows that the Veteran has not had persistent edema or swelling. See VA treatment record (August 25, 2008; October 11, 2008) (noting no edema). Moreover, when present, swelling and edema have varied in severity, from slight to causing discomfort following prolonged use. Similarly, the Veteran's symptoms of pain and tingling also vary in severity, increasing with use throughout the day, at worst handicapping her ability to right and draw at the end of the day. The Board finds that symptoms of such variable nature are not analogous to the persistent symptoms required for the 60 percent disability ratings. This is particularly as a 70 or 80 percent rating is warranted for amputation of an upper extremity up to the deltoid. For these reasons, the Board finds that the next higher rating, a 60 percent, for right arm lymphedema is not warranted. d. Acute Cystitis The Board has also considered whether a rating in excess of 0 percent is warranted for acute cystitis, which has been evaluated under Diagnostic Code 7512. Under Diagnostic Code 7512, cystitis is rated as voiding dysfunction. 38 C.F.R. ง 4.115b. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. ง 4.115a. For continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is warranted when the wearing of absorbent materials that must be changed less than two times per day is required; a 40 percent rating is warranted when the wearing of absorbent materials that must be changed two to four times per day is required; and a 60 percent rating is warranted when the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. Urinary frequency is rated 10 percent with daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating is warranted for a daytime voiding interval less than one hour, or; awakening to void five or more times per night. Obstructed voiding warrants a maximum schedular rating of 30 percent for urinary retention requiring intermittent or continuous catheterization. A 10 percent rating is warranted for less severe symptoms. In 2007 and 2008, treatment records are negative for voiding dysfunction, showing that the Veteran denied change in urinary frequency, feelings of urinary urgency, difficulty emptying the bladder, and loss of bladder control. See VA treatment record (December 21, 2007; February 2, 2008). In February 2009, the Veteran reported voiding several times during day and three to four times per night. See Statement (February 19, 2009). During the May 2009 VA examination, the Veteran reported voiding every one to two hours during the day and five or more times per night. She also reported wearing of absorbent material that must be changed less than two times per day. The examiner noted that the Veteran was unemployed and opined that her incontinence and residuals of right breast carcinoma have a severe impact on many of her daily activities. The Board finds that the Veteran's acute cystitis has manifested, at worst, with voiding five or more times per night. This was reported during the May 2009 VA examination and is consistent with the Veteran's February 2009 report of nighttime voiding. The Board has no reason to doubt the Veteran's credibility in reporting these symptoms. Accordingly, a 40 percent rating for acute cystitis is warranted under the criteria for urinary frequency. This is the highest schedular rating available for urinary frequency. The only higher rating available for voiding dysfunction is a 60 percent rating. The 60 percent rating is warranted when the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is required. The Board finds these criteria have not been met because the evidence shows that the Veteran does not use an appliance and that she reported changing absorbent materials, at most, less than two times per day. See VA examination (May 2009). Thus, a 60 percent rating is not warranted. In sum, a 40 percent rating, but no higher, for the acute cystitis is warranted. e. Other Considerations The Board has considered whether staged ratings are appropriate for the Veteran's service-connected residuals of carcinoma of the right breast, right arm lymphedema, and acute cystitis; however, the Board finds that her symptomatology has been stable throughout the appeal or the assigned stages. Therefore, assigning staged ratings or further staged ratings for such disabilities are not warranted. The Board has also considered whether these claims should be referred for consideration for an extra-schedular rating. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. ง 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. ง 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under ง 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the first Thun element is not satisfied here for any of the Veteran's disabilities. First, her service-connected residuals of carcinoma of the right breast has resulted in breast surgery, lymphedema, chemotherapy induced menopause, partial hysterectomy, scars, carpal tunnel syndrome, and acute cystitis. Breast surgery is the predominant residual of the Veteran's carcinoma of the right breast; however, she is in receipt of separate disability ratings for the other mentioned residuals (lymphedema, chemotherapy induced menopause, partial hysterectomy, scars, carpal tunnel syndrome, and acute cystitis). Breast surgery has resulted in simple mastectomy or wide local excision with significant alteration of size or form of both breasts, which is explicitly contemplated by the rating schedule under Diagnostic Code 7626, which contemplates even more severe symptoms not present. Second, lymphedema has resulted in pain, swelling, tingling, and discomfort as well as edema that had ranged from not present or slight to more moderate, which has impaired her ability to write and draw toward the end of the day. These signs and symptoms and their resulting impairments are reasonably contemplated by the rating schedule under Diagnostic Code 7121, which contemplates edema, aching, fatigue after prolonged use, and use of compression hosiery as well as more severe symptoms not present. Third, acute cystitis resulted in urinary leakage and increased urinary frequency, requiring voiding five or more times per night. These signs and symptoms and their resulting impairments are reasonably contemplated by the rating schedule under Diagnostic Code 7512, which contemplates even more severe symptoms not present. In sum, there is nothing exceptional or unusual about the Veteran's residuals of carcinoma of the right breast (during the period from October 1, 2008, to March 2, 2012), right arm lymphedema, and acute cystitis. Moreover, there is no indication that these disabilities result in any additional symptomatology for which a separate rating has not been assigned. Furthermore, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt, there is no additional impairment that has not been attributed to a specific, rated disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for her service-connected disabilities. Consequently, the rating schedule is adequate to evaluate the Veteran's disability picture. Furthermore, neither the Veteran nor the record has raised the issue of whether referral for extra-schedular consideration based on the impact of the disabilities on appeal alone, or in combination with her other service-connected disabilities, is warranted. Yancy v. McDonald, 27 Vet. App. 484 (2016). Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER The reduction of the evaluation for the Veteran's carcinoma of the right breast, status post lumpectomy, from 100 percent to 30 percent, effective October 1, 2008, was proper. A 50 percent rating, but no higher, for residuals of carcinoma of the right breast, status post lumpectomy, from October 1, 2008, to March 2, 2012, is granted, subject to the laws and regulations governing payment of monetary benefits. A 40 percent rating, but no higher, for acute cystitis is granted, subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 40 percent for right arm lymphedema is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. ง 5103A; 38 C.F.R. ง 3.159. Further development is needed to decide the issue of entitlement to a rating in excess of 50 percent for bilateral mastectomies associated with residuals of carcinoma of the right breast, status post lumpectomy, effective March 2, 2012. In March 2012, the Veteran underwent right breast revision with excision of fat necrosis and left breast scar revision and steroid injection. See, e.g., Baptist Health System (March 2, 2012). In a January 2016 rating decision, the AOJ assigned a separate disability rating for bilateral mastectomies, 50 percent disabling, effective March 2, 2012. In November 2015, the Veteran reported that she underwent additional reconstructive surgery on October 15, 2015. See Statement (November 21, 2015). VA and private medical records are only current through June 2015. As records of the Veteran's October 2015 breast surgery are directly relevant to the current severity of her service-connected bilateral mastectomies, which are rated on the basis of breast surgery under Diagnostic Code 7626, the Veteran's records from June 2015 to present must be obtained. The Board notes that the Veteran was most recently afforded a VA examination to determine the severity of residuals of carcinoma of the right breast in June 2014. Therefore, after receiving any updated treatment records referable to such disability, the AOJ should review the record and conduct any additionally indicated development, to include affording the Veteran a contemporaneous VA examination, if deemed necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal, specifically those documenting the reported October 2015 breast surgery. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records from June 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. ง 5103A(b)(2) and 38 C.F.R. ง 3.159(e). 2. After receiving any updated treatment records referable to the Veteran's bilateral mastectomies associated with residuals of carcinoma of the right breast, status post lumpectomy, the AOJ should review the record and conduct any additionally indicated development, to include affording the Veteran a contemporaneous VA examination, if deemed necessary to decide the claim. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. งง 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs