Citation Nr: 1302345 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-21 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating greater than 10 percent for right knee chondromalacia patella for substitution or accrued benefit purposes. 2. Entitlement to an increased rating greater than 10 percent for left knee chondromalacia patella for substitution or accrued benefit purposes. 3. Entitlement to compensation for lymphedema of the bilateral lower extremities (BLEs) for substitution or accrued benefit purposes under the provisions of 38 U.S.C.A. § 1151, claimed due to VA medical care received on May 18, 2007, or, in the alternative, under the provisions of service connection, claimed secondary to service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to March 1977. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, where the Veteran was denied benefits sought. The Veteran then perfected an appeal of these claims to the Board during his lifetime. The Veteran died in August 2010 prior to final adjudication of his claims. In May 2011, the appellant timely requested that she be substituted for the Veteran as his surviving spouse. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2011)). Such request must be filed not later than one year after the date of the veteran's death. Id. As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a)...." Id. The RO has allowed the appellant's substitution in the Veteran's case that was on appeal. Therefore, the Veteran's surviving spouse has been substituted for the Veteran. The appellant retains the Veteran's docket number before the Board. The appellant had a hearing before the Board in October 2012, and the transcript is of record. With regard to the lymphedema claim, the issue requires clarification. The Veteran originally sought compensation for an infection of his BLEs that he believed occurred due to a pinprick test done by a VA examiner in May 2007 with non-sterile equipment. The RO adjudicated this claim as a claim seeking compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) (i.e., for additional disability or death due to VA hospital or medical care). Id. Upon review of the record, however, the Board finds evidence that reasonably raises an alternative theory of compensation. That is, there is some medical evidence suggesting a possible causal relationship between the Veteran's service-connected bilateral knee disabilities and his lymphedema of the BLEs. Service connection is warranted where a disability is proximately due to or aggravated by a service connected disability. 38 C.F.R. § 3.310 (2012). When determining eligibility for compensation, all theories of entitlement must be considered. See, e.g., Szemraj v. Principi 357 F. 3d 1370, 1373 (holding that when determining service connection, all theories of entitlement, direct and secondary must be considered); cf. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding where a presumption is found inapplicable, a claimant is not precluded from establishing service connection for disability due to proof of direct causation). For these reasons, the Board finds the issue is not merely confined to the provisions of 38 U.S.C.A. § 1151 alone, but rather compensation must be considered in light of all arguably applicable theories of entitlement. The issue has been appropriately recharacterized above. The issue of entitlement to compensation for lymphedema of the BLEs for accrued benefit purposes, under the provisions of 38 U.S.C.A. § 1151 regarding VA medical care received on May 18, 2007, or, in the alternative, claimed secondary to service-connected bilateral knee disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The service-connected chondromalacia patella of the right knee was manifested by limitation of motion, pain, swelling, and tenderness, but with no objective evidence of instability, arthritis, locking, dislocation, or subluxation. 2. The service-connected chondromalacia patella of the left knee was manifested by limitation of motion, pain, swelling, and tenderness, but with no objective evidence of instability, arthritis, locking, dislocation, or subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating greater than 10 percent for right knee chondromalacia patella (rated for limited extension) for substitution or accrued benefit purposes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5261 (2012). 2. The criteria for a separate 20 percent for limited flexion caused by right knee chondromalacia patella for substitution or accrued benefit purposes have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260 (2012). 3. The criteria for entitlement to an increased rating greater than 10 percent for left knee chondromalacia patella for substitution or accrued benefit purposes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, prior to the Veteran's death in August 2010, pre-decisional notice letters in May 2007 and September 2007 satisfied VA's duty to notify. Because the appellant has been substituted for the Veteran, issuance of another notice letter is not required. See Veterans Benefits Administration, Fast Letter 10-30 (Aug. 10, 2010). Even so, a letter was provided to the appellant in October 2011 and, thereafter, the claims were readjudicated in a March 2012 Supplemental Statement of the Case (SSOC). The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. VA examinations with respect to the knees were obtained in May 2007 and July 2010. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record and the statements of the Veteran (during his lifetime) and the appellant, and the examiners provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board may proceed adjudicating the claims on appeal. Increased Ratings (Knees) Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for initial rating and increased-rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As discussed below, staged ratings are not warranted in this case as the Veteran's knees were manifested by consistent symptoms throughout the appeal period. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. While the Board must consider the functional impairment resulting from orthopedic disabilities, such as the Veteran's loss of motion, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings such as Diagnostic Code 5257 (for instability or recurrent subluxation) because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. at 12 (1996). The Veteran's bilateral knee disabilities were rated 10 percent disabling under Diagnostic Code 5261 for limited extension. See 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. Separate ratings may be assigned for limitation of flexion and limitation of extension under DCs 5260 and 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The Veteran filed an increased rating claim for his bilateral knee disabilities in May 2007 essentially claiming increased pain in his knees since a September 2006 back injury. Prior to that time, the Veteran received virtually no treatment for his knees only complaining of pain and some limited motion. Since the 2006 back injury, the Veteran claimed his knee pain became more severe further limiting his mobility and overall functional ability. Prior to his death in August 2010, the Veteran was afforded VA examinations related to his knee claims in May 2007 and July 2010. In May 2007, the examiner noted the Veteran reported with complaints of pain, stiffness, giving out, weakness, crepitus, decreased endurance, and increased fatigability. The Veteran denied locking at that time. The examiner noted the Veteran's contentions that his knee pain was relatively stable with no treatment until he suffered osteomyelitis in the L2 to L3 vertebrae of the spine in September 2006. This required IV antibiotics for three months and three months of bed rest. After that, the Veteran complained of a steady increase in knee pain. The Veteran further complained of difficulty climbing stairs and ambulating without a cane. The examination was complicated because the Veteran clearly had functional limitations, but the examiner noted this was mainly due to back pain and resulting edema of the BLEs. Indeed, there was 3+ edema noted in the BLEs with an open weepy wound on the right side. The examiner attributed the Veteran's complaints of pain to the BLEs mainly to his low back. On examination, the Veteran had an antalgic gait, but with no deformity other than edema. Range of motion testing revealed the right knee moved from 0 degrees extension to 130 degrees flexion. The left knee moved from 0 degrees extension to 135 degrees flexion. On repetition, however, the Veteran had pain in the last 10 to 20 degrees of flexion bilaterally. Despite the Veteran's complaints of weakness and giving out, diagnostic tests were normal showing no signs of instability. The examiner noted the Veteran still received no specific treatment for his knees, but rather was mainly seeking treatment for unrelated back pain. The Veteran was diagnosed with chondromalacia of the bilateral patella. Private treatment records indicate "severe" knee pain, with physical therapy and oral medications but with no surgeries to the knees. The treatment records also consistently show the Veteran's treatment mainly focused on other unrelated disorders. The Veteran was most recently afforded a VA examination in July 2010. At that time, the Veteran complained of knee pain, swelling, the right worse than the left, limited mobility, weakness, stiffness, giving out, and locking. The Veteran denied knee dislocations. The examiner noted the increase in pain and swelling was in conjunction with diagnosed lymphedema and cellulitis. The Veteran indicated he used a cane and could not walk more than two blocks at a time. As for treatment, the Veteran underwent physical therapy, shots, and oral medications but otherwise did not have ongoing treatment for his knees. The Veteran noted working as a systems analyst for over 20 years. He stopped working there in 2003 because the company laid him off. Thereafter he was a part-time financial consultant until 2008, working 20 hours a week, and thereafter was self-employed working 10 hours per week. X-rays did not show arthritis. On examination, the examiner noted pain, slow/guarded movements, moderate edema of the BLE, swelling, tenderness, and limited motion. Diagnostic testing revealed intact ligaments bilaterally. Range of motion testing was noted as painful. The right knee was limited to 12 degrees extension to 115 degrees flexion, with pain "beyond one third of the range of motion." The left knee was limited to 10 degrees extension and 125 degrees flexion with no change on repetition and pain only at the end of the range of motion. The examiner diagnosed the Veteran with bilateral chondromalacia patella. In short, medical evidence indicates the Veteran's bilateral knee disabilities were manifested by bilateral chondromalacia patella, pain, and decreased range of motion. Although the Veteran complained of weakness, locking, and instability, diagnostic tests could not confirm any such findings. Range of motion testing results do not support an increased rating under DC 5261 for limitation of extension for either knee. That is, the Veteran's right knee extension was never worse than 12 degrees and the Veteran's left knee extension was never worse than 10 degrees, which does not support a rating greater than 10 percent under DC 5261. See 38 C.F.R. § 4.71a, DC 5261. Functional loss was considered in accordance with 38 C.F.R. §§ 4.40, 4.45. See also DeLuca, 8 Vet. App. 202. After three repetitions of motion, no examiner found the Veteran's extension worsened on either knee. Range of motion testing for flexion showed the Veteran's right knee flexion was never measured worse than 115 degrees and his left knee flexion was never measured worse than 125 degrees. These measurements are non-compensable under DC 5260. See 38 C.F.R. § 4.71a, DC 5260. The Board finds noteworthy, however, that the July 2010 VA examiner noted the Veteran's right knee flexion was painful beyond one-third of the entire range of motion. This is similar to the private treatment records noting severe right knee pain. Taking functional loss into consideration, the Board finds an additional 10 percent rating, but no higher, for limitation of right knee flexion is warranted. No medical professional ever found the Veteran's right knee flexion limited to 30 degrees or worse. Evaluation of the left knee, moreover, did not show painful range of motion to that degree. Rather, pain is merely noted at the end of the range of motion, more specifically at 125 degrees flexion. This is not compensable under DC 5261 even taken into consideration functional loss due to pain on movement, weakness, fatigability, or incoordination. Indeed, the medical evidence consistently notes the Veteran's right knee as the more afflicted joint with more pain, tenderness, weakness and swelling compared to the left knee joint. For these reasons, the Board finds the medical evidence supports a separate 10 percent rating for limited flexion of the right knee, but not for the left knee. There are other Diagnostic Codes relating to knee, but the Board finds these alternative diagnostic codes inapplicable here. For example, arthritis is rated under Diagnostic Code 5003, but this Code is inapplicable here because x-rays specifically ruled out arthritis. Additionally, Diagnostic Code 5003 is only applicable where limitation of motion of the specific joint or joints involved are otherwise noncompensable under the appropriate diagnostic codes. That is not the case here. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5257 provides for higher or, in some cases, separate ratings for the knee where there is evidence of recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, DC 5257. This Diagnostic Code is inapplicable here because, as explained above, despite the Veteran's complaints of weakness and giving out, diagnostic tests were always within normal limits. Ligaments specifically were always found to be intact. There are other Diagnostic Codes related to the knees that are equally inapplicable here, to include Diagnostic Code 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5259 (removal of semilunar cartilage, symptomatic), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The Veteran's knees were never found to be ankylosed. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran was able to move his knees, albeit with some limitation, and so they were clearly not ankylosed. The Veteran's knees were also not affected by nonunion or malunion of the tibia and fibula or by genu recurvatum. In short, chondromalacia patella of the bilateral knees was manifested by pain, swelling, and limited motion. As explained above, his limited motion, taken into consideration with functional limitations, warrants a separate 10 percent rating for limited flexion of the right knee, but otherwise, does not warrant a disruption in the ratings already assigned prior to his death. The Veteran was also not entitled to a higher or additional separate rating under any other potentially applicable diagnostic code. Extraschedular Considerations As noted above, the Veteran worked full time up until 2008 and worked part-time thereafter. The records, however, do not establish that the rating criteria are inadequate for rating the Veteran's service- connected knee disabilities. The competent medical evidence of record shows that his knee disabilities are primarily manifested by pain, tenderness and limitation of motion. Many of the applicable diagnostic codes used to rate the Veteran's disabilities provide for ratings based on limitation of motion. See 38 C.F.R. §4.71a, Diagnostic Codes 5260, 5261. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU The Board notes that a claim seeking a total disability rating based on individual unemployability (TDIU) is inferred in increased rating claims where the Veteran claims his disability affects his employability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, at the time of the Veteran's death there was no evidence of unemployability due to his knees. In fact, while private treatment records noted the Veteran's knee pain, the majority of his medical treatment was for other significant, unrelated disabilities. The Veteran indicated he worked full time until 2008, at which point he was laid off. Thereafter, he worked part-time. It is clear from private medical statements within the file that his pain was severe, but the Veteran himself conceded his knees did not require much ongoing treatment. For these reasons, the Board concludes further consideration of TDIU is not warranted. ORDER Entitlement to an increased rating greater than 10 percent for right knee chondromalacia patella (rated based on limited extension) for substitution or accrued benefit purposes is denied. A separate 20 percent rating for right knee chondromalacia patella based on limited flexion for substitution or accrued benefit purposes is granted, subject to the laws and regulations governing monetary awards. Entitlement to an increased rating greater than 10 percent for left knee chondromalacia patella for substitution or accrued benefit purposes is denied. REMAND The claim regarding compensation for lymphedema of the BLEs must be remanded for further development. Initially, the Board notes that this claim stems from the appellant's request and grant for substitution and not merely a claim for accrued benefits. Although it may appear that, because the appellant's claim is now before the Board, it does not make a difference whether it is adjudicated as an accrued benefits claim or as a request for substitution, there is, however, a significant difference. When adjudicating the former, only the evidence of record at the time of the Veteran's death may be considered as the basis for a determination on the merits of the claim. By contrast, when a properly qualified substitute claimant "continues the pending claim in the footsteps of the veteran" after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. In other words, a substitute claimant may submit additional evidence in support of the claim and, similarly, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Thus, it is to the appellant's advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C.A. § 5121A, rather than as they were originally adjudicated. For these reasons, the Board concludes evidentiary development is not only necessary with respect to this claim, but also permissible in light of the appellant's "substitute claimant" status. The Veteran originally sought compensation under the provisions of 38 U.S.C.A. § 1151 for an infection he claimed he incurred during a May 2007 VA examination. Specifically, the Veteran was afforded a VA examination on May 18, 2007, to ascertain the current severity of his service-connected bilateral knee disabilities. The Veteran claimed a pinprick test was part of the examination, which he believes was done with dirty or otherwise non-sterile equipment. Shortly after the examination, the Veteran was hospitalized from May 24, 2007, to June 1, 2007, with an infection, namely cellulitis, of the right leg. According to hospital and private treatment records, his cellulitis thereafter resolved. The appellant continued the Veteran's appeal after his death further claiming the Veteran's infection was caused by VA medical treatment, namely the pinprick test. The claim is complicated by the fact that prior to the May 2007 VA examination, the Veteran had a lengthy history of recurrent cellulitis as well as lumbar spine osteomyelitis. His lymphedema of the BLEs also pre-existed the May 2007 VA examination. In fact, the examiner associated the Veteran's bilateral lower extremity pain with his non-service connected osteomyelitis of the lumbar spine. The May 2007 VA examination report, moreover, indicates the Veteran presented to the examination with already existing 3+edema of the BLEs with "open weepy wound on the right side." During the Veteran's lifetime, he submitted a private medical opinion dated July 2007 from Dr. Altmann indicating in pertinent part that the Veteran's admission to the hospital with severe, necrotizing cellulitis was just days after the May 18, 2007, VA examination, which included a pinprick evaluation. Dr. Altmann further indicated, "the relationship between being pricked with what [the Veteran] described to me as an unsterile pin suggests a causal relationship." Dr. Altmann did not clarify or otherwise indicate whether the Veteran, at that time, still had cellulitis or any other chronic disorder resulting from the infection. The Veteran was afforded additional VA examinations in December 2007 and July 2010. At the December 2007 examination the examiner opined that the pinprick testing of his lower extremities did not cause lymphedema. The examiner further noted the Veteran's history of lymphedema and recurrent cellulitis, which pre-existed the May 2007 VA examination. Under 38 U.S.C.A. § 1151, entitlement to benefits are warranted where there is evidence of an additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. Id. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, it must be shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See 38 C.F.R. § 3.361(d). Here, the December 2007 examiner did not opine whether the Veteran's bout of cellulitis shortly after the May 2007 VA examination was caused by the May 2007 pinprick testing and, if so, whether the infection caused an additional permanent, chronic disability. The examiner further did not reach the question of reasonable degree of care. The Veteran was also afforded a VA examination in July 2010, which dealt mainly with the manifestations of his service-connected bilateral knee disabilities. Within the examination report, however, the examiner diagnosed the Veteran with bilateral chondromalacia patella and "[a]ssociated condition of back pain, cellulitis of the lower extremities and lymphedema of the lower extremities, right side worse than the left." It is unclear from the wording of the report whether the examiner was associating the Veteran's lymphedema with his back pain (not service-connected) or with his bilateral chondromalacia patella (service-connected). In short, the medical evidence in this case is ambiguous and leaves many unanswered questions necessary for the adjudication of the claim. To the extent the May 2007 VA pinprick evaluation caused the Veteran to incur an infection of the BLEs, to include cellulitis, it is unclear whether the infection resolved without residual or whether the infection caused or otherwise aggravated any additional disability of the BLEs. Aside from the May 2007 bout of cellulitis, at the time of the Veteran's death, he clearly had a long-standing diagnosis of lymphedema of the BLEs. The medical evidence is ambiguous as to whether the Veteran's service-connected bilateral knee disabilities caused or aggravated this condition. A condition that is proximately due to or aggravated by another service-connected disability will be service-connected. See 38 C.F.R. § 3.310(a). This aspect of the claim has not been developed by the RO. Corrective action is required, to include providing the appellant adequate notice, and obtaining a medical opinion to clarify the ambiguous medical evidence. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant notice of the laws, regulations, and evidence necessary to substantiate her claim seeking entitlement to compensation for lymphedema of the BLEs for substitution or accrued benefit purposes under the provisions of 38 U.S.C.A. § 1151 or, in the alternative, under the provisions of 38 C.F.R. § 3.310, for consideration of lymphedema as secondary to the Veteran's service-connected chondromalacia patella of the bilateral knees. 2. After completing the above, obtain an appropriate VA medical opinion to determine the nature and likely etiology of any diagnosed BLE disability prior to the Veteran's death. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to address the following: (a) Prior to the Veteran's death, did he have any disabilities affecting the bilateral lower extremities, to include cellulitis and lymphedema? If so, identify the specific diagnoses. (b) If the answer to (a) is yes, answer the following: (i) is it at least as likely as not (50 percent probability) that any diagnosed disability of the BLEs was incurred in or is otherwise directly related to service? (ii) If the answer to (i) is no, is it at least as likely as not (50 percent probability) that the Veteran's service-connected chondromalacia patella of the bilateral knees caused or aggravated the BLE disabilities beyond the natural progression of the disease(s)? Aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician must indicate, to the extent possible, the approximate level of BLE disability present (i.e., a baseline) before the onset of the aggravation. (c) If the answers to (b)(i) and (b)(ii) are no, answer the following: (i) Prior to the Veteran's death, did he have additional disability as a result of the May 2007 VA examination, to include pinprick evaluation? If the answer is yes, specifically identify the additional disability or disabilities. The examiner is specifically asked to reconcile whether the Veteran's subsequent hospitalization from May 24, 2007, to June 1, 2007, for cellulitis was caused by the pinprick evaluation and, if so, whether the cellulitis caused an additional, chronic disability or otherwise aggravated his lymphedema of the BLEs. (ii) If the Veteran did have additional disability due to the May 2007 VA examination, to include pinprick evaluation, state whether it is at least as likely as not (50 percent probability) that the proximate cause of each additional or aggravated disability was: (A) due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment; or, (B) whether the proximate cause of each additional or aggravated disability was an event which was not reasonably foreseeable. The examiner(s) is(are) requested to provide a complete rationale for any opinion expressed, based on clinical experience, medical expertise, and established medical principles resolving the conflicting medical evidence, to include past VA examinations and private medical opinions. If an opinion cannot be made without resort to speculation, the examiner(s) should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the appellant and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs