Citation Nr: 20052577 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 10-43 036 DATE: August 7, 2020 REMANDED Entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1989 to November 2003. A December 2016 Board decision denied entitlement to an increased rating in excess of 20 percent for the service-connected lymphedema of the left upper extremity for the entire appeal period. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. In a November 2017 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s decision as to the claim for entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity, to include on an extraschedular basis, and remanded the matter to the Board for action consistent with the Joint Motion. Entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity, to include on an extraschedular basis is remanded. In the November 2017 Joint Motion, the parties agreed that the Board did not provide an adequate statement of reasons or bases for denying an increased rating for service-connected lymphedema of the left upper extremity on both a schedular and extraschedular basis. 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 3.321(b)(1). The parties agreed that the Board did not discuss whether, during the course of the appeal, symptoms of painful rashes, erythema, and cellulitis were analogous to stasis pigmentation listed in Diagnostic Code 7121 or whether those symptoms warranted referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). The Veteran has submitted medical evidence which shows hospitalizations and surgery for lymphedema in the upper left extremity. In a May 2020 correspondence, the Veteran stated that she experienced difficulty with activities such as opening jars, zipping a dress, squeezing products from a tube, writing, and typing. The Veteran stated that the appearance of the left arm caused psychological affects as she is “approached on a daily basis by strangers thinking [she] has 3rd degree burns or some other condition.” Service-connected lymphedema in the upper left extremity is currently rated by analogy under 38 C.F.R. 4.104, Diagnostic Code 7121. In the February 2018 Appellant Brief, the Veteran argued that the rating criteria “does not address in any the additional exceptional disabilities” to include numerous hospitalizations, surgery, wearing life-long compression clothing, physical limitations, and psycho-social impact of lymphedema in the upper left extremity. The Board notes the December 2019 VA examination in which the Veteran reported the lymphedema in the upper left extremity resulted in (1) the inability to travel and type for work; (2) trouble squeezing, washing her back, putting on dress with zipper; (3) inability to wear normal clothes due to the swelling; and (4) several daily and weekly treatments for symptoms associated with the disability. The Board notes that November 2017 Court order requires the Board contemplate symptoms of painful rashes, erythema, and cellulitis due to lymphedema in the upper left extremity when considering whether extraschedular is warranted. As a result of the above noted determinations and evidence, the Board finds that remand is required to refer the claim for extraschedular consideration by the Director of Compensation Service. According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225 (1993). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that Diagnostic Code 7121 under which lymphedema in the upper left extremity was rated does not specifically contemplate hospitalizations, surgery, constant treatment and care, functional impact, or psychological impact of the disability. Therefore, the evidence suggests an exceptional disability picture where the available schedular ratings may be inadequate. The Board finds that there is evidence suggesting an exceptional or unusual disability picture, such as marked interference with employment. For example, the Veteran has reported painful rashes, erythema, cellulitis, hospitalizations, surgery, the inability to wear normal clothing, and difficulty with activities of daily living. Specifically, the Veteran reports of the inability to travel and difficulty typing cause a marked interference with employment. The Board finds that the evidence suggests marked interference with employment or frequent hospitalization and referral for the consideration of the assignment of an extraschedular rating is warranted. Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of Compensation Service. As the first two elements were met, remand is required for the claim of entitlement to a rating in excess of 20 percent for lymphedema in the upper left extremity, to be referred to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration. Accordingly, the Board finds that the established schedular criteria may be inadequate to describe the severity and symptoms of the Veteran's service-connected lymphedema in the upper left extremity and remand for a referral to the Under Secretary for Benefits or Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted. The matter is REMANDED for the following action: Refer the claim to the Director of the Compensation Service for consideration of whether the Veteran is entitled to an extraschedular rating for lymphedema in the upper left extremity pursuant to 38 C.F.R. § 3.321(b)(1) at any time during the appeal period. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.