Citation Nr: 1316880 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-09 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include pneumonia, bronchitis, and asthma. 2. Entitlement to service connection for a right ankle disability, as secondary to the service-connected left knee disability and/or the service-connected left ankle disability. 3. Entitlement to an increased rating for migraine headaches, currently rated as 50 percent disabling. 4. Entitlement to an increased rating for lateral collateral ligament laxity of the left knee with reduced flexion, currently rated as 10 percent disabling. 5. Entitlement to an increased rating for lateral collateral ligament laxity of the left knee with reduced extension, currently rated as 20 percent disabling. 6. Entitlement to an increased rating for left ankle instability, postoperative, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from November 1989 to April 1992. The Veteran is currently in receipt of a total disability evaluation based on individual unemployability (TDIU). That is, she has been found unemployable due to the totality of her service-connected disabilities and is in receipt of a 100 percent disability evaluation, effective from February 17, 2005. See 38 C.F.R. §§ 3.340, 3.321, 4.16(a). A combined rating of 90 percent has been in effect for the service-connected disabilities, effective from February 17, 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. The case is now under the jurisdiction of the RO in Winston-Salem, North Carolina. With respect to the Veteran's left knee disability, service connection has been in effect since April 22, 2002. The Veteran was initially assigned a 10 percent disability rating. In the January 2008 rating action, the RO, in pertinent part, denied a rating in excess of 10 percent for lateral collateral ligament laxity of the left knee. The Veteran subsequently filed a timely appeal. In a December 2011 rating action, the RO determined that separate ratings were warranted for flexion and extension of the left knee. Thus, the RO recharacterized the Veteran's left knee disability as two separate disabilities: (1) lateral collateral ligament laxity of the left knee with reduced flexion, rated as 10 percent disabling from April 22, 2002, and (2) lateral collateral ligament laxity of the left knee with reduced extension, rated as 20 percent disabling from November 10, 2011 (the date of VA examination showing reduced extension). Thus, the Board has characterized the issue on appeal as styled on the first page of this decision. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2012. A copy of the transcript of that hearing is of record. In a VA Form 21-4138, Statement in Support of Claim, dated in February 2013, the Veteran requested an extension of three months so that she could obtain evidence in support of her claims. Specifically, she stated that she had an appointment scheduled in March 2013 with a Dr. O., from Greensboro Orthopedics. She stated that she would submit the evidence after her appointment and that she wanted to waive the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). At the time her statement was submitted, the evidence of record already included private treatment records from Greensboro Orthopedics, dated from June to September 2008. However, there was no reference to Dr. O. in the records. After the Veteran submitted her statement, there is no evidence of record showing that she subsequently submitted any evidence from Dr. O. Nevertheless, as explained in the remand below, the Board is directing the RO to obtain any pertinent records from Greensboro Orthopedics, including records from Dr. O., and associate them with the claims file. In view of the action taken below, initial consideration of this evidence should be undertaken by the RO. In February 2013, the Veteran also submitted four VA Forms 21-4142, Authorization and Consent to Release Information. She requested that the Board obtain the evidence listed in the consent forms. She also requested a waiver of local jurisdiction with all records that were obtained. 38 C.F.R. § 20.1304(c). In the first form, she referred to records from the Commanche Memorial Hospital. She did not list any dates of treatment or disabilities for which she received treatment. In the second form, she referred to treatment for asthma from a Dr. R. C. She did not list any dates of treatment. Nevertheless, the evidence of record already includes private treatment records from the Commanche Memorial Hospital, dated from 1994 to 1998, and private treatment records from Dr. C., dated from March to April 1996. Thus, the RO has already reviewed this evidence. In the third consent form, she referred to records from the Mount Carmel West Hospital in Columbus, Ohio, for treatment of asthma and pneumonia in approximately March 2004. On the consent form, it was indicated that the RO was subsequently notified by the hospital that they did not have any records prior to 2006. However, the evidence of record already includes private treatment records from the Mount Carmel West Hospital and the Mount Carmel East Hospital, also in Columbus, dated from June 1999 to January 2004. As explained further in the remand below, the Board is directing the RO to obtain any records from both the East and West hospitals that are pertinent to the Veteran, from January 2004 to the present. If any evidence is obtained, initial consideration of such evidence should be undertaken by the RO. In the fourth consent form, the Veteran stated that she had received treatment for her service-connected headaches at the Mount Carmel East Hospital. Specifically, she noted that she was hospitalized from January 20, 2006 to January 27, 2006, for her headaches. In this regard, the Veteran had previously stated in a December 2007 VA examination report that she was hospitalized for a week in January 2006 for a toxic dose of Tegretol and migraine headache. As explained in the decision below, although the evidence of record includes private treatment records from the Mount Carmel West and East Hospitals, the records are negative for the January 2006 hospitalization records. However, the records show that the Veteran was hospitalized from January 17, 2004 to January 21, 2004, for atypical migraine headaches. Although the Veteran was given heavy doses of narcotics, she still complained of headache pain. The examiner noted that the Veteran was somewhat manipulative and on the day of her discharge, she asked to stay one more night. On the next day, although the Veteran was still complaining of pain, the examiner informed her that her brain examination was completely normal, as was her neurologic examination. The examiner noted that although he was empathetic to her pain, he believed she could treat her pain on an outpatient treatment basis. According to the examiner, by allowing her to stay any longer would empower her cycle of manipulation and probably be very detrimental to her. The Veteran is currently receiving a 50 percent rating for her service-connected migraine headaches, the maximum scheduler rating allowed under Diagnostic Code 8100, the applicable VA rating criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). There are no other diagnostic codes that are applicable for rating the Veteran's migraine headaches. In addition, given the fact that the Veteran filed her claim for an increased rating for her service-connected headaches in May 2006, any records from January 2006 would be outside the appeal period. See 38 C.F.R. § 3.400. Thus, even though the January 2006 private hospitalization records have not been obtained, the Board finds no prejudice to the Veteran in adjudicating the claim of entitlement to a rating in excess of 50 percent for migraine headaches on appeal. The issue of entitlement to service connection for fibromyalgia was originally developed for appellate review. In May 2004, the Board remanded this issue to the RO for development. However, service connection for fibromyalgia was ultimately granted by the RO in a January 2009 rating action. The RO assigned a 10 percent initial rating for the service-connected fibromyalgia, effective from April 9, 1997. Therefore, the issue of entitlement to service connection for fibromyalgia is no longer before the Board. The Veteran was provided notice of the January 2009 decision, wherein service connection was granted for fibromyalgia, and her appellate rights in a February 2009 letter. In April 2010, the Veteran filed a notice of disagreement (NOD), disagreeing with the disability rating assigned to the service-connected fibromyalgia. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). However, in a letter to the Veteran, dated in April 2010, the RO informed the Veteran that her NOD was not timely because it was not submitted within a year of the February 2009 notice letter, in compliance with 38 C.F.R. § 20.201. The Veteran was provided her appellate rights. The evidence of record is negative for an NOD. Thus, the issue of entitlement to an initial rating in excess of 10 percent for fibromyalgia is not before the Board for appellate consideration. With the exception of the claim for an increased rating for service-connected migraine headaches, the remaining claims on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is currently receiving a 50 percent rating for her service-connected migraine headaches, the maximum schedular rating allowed under the applicable VA rating criteria. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of 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, 22 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its duty to notify by issuing VCAA letters from the RO to the Veteran dated in July 2006, November 2008, and August 2008. These letters advised the Veteran of what evidence was required to substantiate her increased evaluation claim (i.e. that her disability had increased in severity), and of her and VA's respective duties for obtaining evidence. In addition, the aforementioned letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess, supra. With respect to Pelegrini, supra, written notice was provided in July 2006 and November 2007, prior to the appealed from rating decision, along with the subsequent notice provided in August 2008, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in a December 2011 supplemental statement of the case (SSOC) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service VA and private medical treatment, and a VA examination report, dated in December 2007. The December 2007 VA examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran is currently receiving the maximum schedular rating available under Diagnostic Code 8100, for migraine headaches. A new VA examination to rate the severity of her migraine headaches is not warranted. The record reflects that the Veteran applied for disability benefits from the Social Security Administration (SSA), but that she was denied. See March 2000 decision letter from SSA and attached records. With regard to the December 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the December 2012 hearing, the Veterans Law Judge and representative for the Veteran outlined the increased rating issue on appeal and discussed with the Veteran how to substantiation the increased rating claim. This hearing was fully adequate. In the December 2012 Travel Board hearing, the Veteran stated that in 2006, she was hospitalized for one week at Mount Carmel East Hospital for her headaches. The Veteran was informed that the record would be held open for 60 days so that she could submit those records. In a VA Form 21-4142, received in February 2013, the Veteran noted that she was hospitalized at Mount Carmel East Hospital from January 20, 2006 to January 27, 2006, for her headaches. As stated in the Introduction of this decision, although the evidence of record includes private treatment records from the Mount Carmel West and East Hospitals, the records do not include the January 2006 hospitalization records. However, they show that the Veteran was hospitalized from January 17, 2004 to January 21, 2004, for atypical migraine headaches. Although the Veteran was given heavy doses of narcotics, she still complained of headache pain. The examiner noted that while he was empathetic to her pain, he believed the Veteran was manipulative and could treat her pain on an outpatient treatment basis. The Veteran is currently receiving a 50 percent rating for her service-connected migraine headaches, the maximum scheduler rating allowed under Diagnostic Code 8100, the applicable VA rating criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). In addition, given the fact that the Veteran filed her claim for an increased rating for her service-connected headaches in May 2006, any records from January 2006 would be outside the appeal period. See 38 C.F.R. § 3.400. Thus, even though the January 2006 private hospitalization records have not been obtained, the Board finds no prejudice to the Veteran in adjudicating the claim of entitlement to a rating in excess of 50 percent for migraine headaches on appeal. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and assist the Veteran, and thus, no additional assistance or notification is required. The Merits of the Claim Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2 (2012). If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Although a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 (and see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In a May 2004 decision, the Board found that there was competent medical evidence of record which showed that the Veteran's migraine headaches began in active service. Thus, the Board concluded that the Veteran's migraine headaches were incurred in active service. Pursuant to the May 2004 decision, the RO, in a May 2004 rating action, granted service connection for migraine headaches. The RO assigned a 50 percent disability rating under Diagnostic Code 8100, effective from December 12, 1997. An evaluation of 50 percent was warranted if the record showed very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A Discharge Summary from Comanche County Memorial Hospital, dated in January 1994, showed a discharge diagnosis of migraine headaches. According to VA Medical Center (VAMC) outpatient treatment records, the Veteran reported having headaches several times a week. In an October 2003 hearing, the Veteran stated that she had missed work due to her migraine headaches. She also indicated that she had headaches a couple of times a week and that it had taken a toll on her job, finances, and marriage. Therefore, the RO determined that a 50 percent rating was warranted for the Veteran's migraine headaches. In May 2006, the Veteran requested that her service-connected migraine headaches be reevaluated for a higher rating. A VA examination was conducted in December 2007. The examiner stated that he had reviewed the Veteran's claims file. According to the Veteran, she experienced headaches several times a week. Less than half of the attacks were prostrating. She stated that she had nausea and vomiting, and light sensitivity. The Veteran indicated that she relieved her pain with Excedrin and that she would lie down. She also took Topamax medication. According to the Veteran, in January 2006, she was hospitalized for a week at a private hospital in 2006 for treatment of a toxic dose of Tegretol and migraine headache. She noted that she was not employed. The examiner stated that a neurological examination conducted in June 2007 was normal. The Veteran's cranial nerves were intact. The diagnosis was migraine headaches. In regard to the effects of the Veteran's migraine headaches on her usual daily activities, the examiner stated that there were moderate effects in regard to sports. There were mild effects with respect to chores and shopping. There were no effects with respect to exercise, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. VAMC outpatient treatment records, dated from September 2007 to March 2009, show that in April 2008, the Veteran received treatment for her migraine headaches. She stated that she took medication for her migraines. According to the Veteran, her headaches had been under better control recently but they had been severe at times in the past. She noted that she had to go to the Emergency Room at times for treatment. In this case, the Veteran contends that her migraine headaches are more disabling than evaluated. In the December 2012 Travel Board hearing, she stated that she took medication for her migraine headaches. She also noted that she had to seek treatment at the Emergency Room on several occasions and that she had been hospitalized for a week for her migraines in 2006. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. However, symptoms must be viewed in conjunction with the objective medical evidence of record. The Veteran's migraine headaches are currently rated as 50 percent disabling under Diagnostic Code 8100 for migraine headaches. Under Diagnostic Code 8100, 50 percent is the highest available rating assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In light of the above, as the highest rating has been awarded, the Board concludes that the Veteran is not entitled to a higher schedular rating. A 50 percent rating is the maximum schedular rating for migraine headaches under Diagnostic Code 8100. There are no other diagnostic codes that are applicable for rating the Veteran's migraine headaches. Therefore, the Board finds that there is a preponderance of evidence against the claim of entitlement to a rating in excess of 50 percent for migraine headaches. Because there is a preponderance of evidence against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has also considered whether a referral to the Director, Compensation and Pension, for extraschedular evaluation, in excess of the maximum schedular rating of 50 percent currently assigned for the full rating period on appeal, is warranted for the Veteran's migraine headaches. The governing norm in such exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran's symptoms and impairment attributable to service-connected migraine headaches are directly addressed by the rating criteria for a 50 percent rating--very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board recognizes that the Veteran has had periods of hospitalization for her migraine headaches which have lasted one week or less. Nevertheless, no medical professional has reported an exceptional disability picture with symptoms not represented in the rating schedule. As described above, the manifestations of the Veteran's migraine headaches are contemplated by the schedular criteria for migraine headaches. The Veteran is not working not only due to her headaches but also due to her other service-connected disabilities and is in receipt of a TDIU rating, effective from February 17, 2005. Accordingly, referral to the Director, Compensation and Pension, for an extraschedular rating for migraine headaches is not warranted. Thun, 22 Vet. App. at 115. ORDER Entitlement to a rating in excess of 50 percent for migraine headaches is denied. REMAND Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Snedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(a). In addition, secondary service connection may be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) (2012); see Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran contends that due to her service-connected left knee and ankle disabilities, she puts more weight on her right ankle in order to avoid any weight on her left side. Due to these ambulatory changes, she fell when she was working at VA and injured her right ankle. The Veteran maintains that she has a right ankle disability that was caused and/or aggravated by her service-connected left knee and ankle disabilities. VAMC outpatient treatment record shows that in April 2002, the Veteran underwent a rehabilitation follow-up evaluation for numerous disabilities, including her service-connected left knee and ankle disabilities. At that time, she stated that she had slipped off a curb while walking into the VA building, spraining her right ankle. The right ankle had not yet been evaluated and she remained full weight-bearing in spite of persistent pain. X-rays were taken of her right ankle which were reported to show the following: (1) no acute fracture, (2) extensive soft tissue swelling, and (3) findings suggestive of ligamentous injury. Private treatment records from Mount Carmel Medical Center reflect that in May 2002, the Veteran sought treatment for right ankle pain. She stated that she had sprained her ankle at work on April 15, 2002. Subsequently, when she stood up at work, she had severe pain with weightbearing. Upon physical examination of the Veteran's right ankle, there was not erythema, edema, or any type of swelling of the right ankle. She had pain in the right lateral malleolus. The Veteran had limited range of motion of the right ankle. The diagnosis was exacerbation of previous ankle sprain. Additional private treatment records reflect that in May 2002, the Veteran had a magnetic resonance imaging (MRI) taken of her right ankle. The MRI was reported to show the following: (1) mild tendinosis of the Achilles tendon with some minimal edema posterior to the tendon just superior to the calcaneal insertion, (2) chronic plantar fasciitis, (3) minor tenosynovitis of the posterior tibialis tendon near the tip of the lateral malleolus, and (4) findings suggestive of degeneration within the peroneal longus and peroneal brevis near the tip of the lateral malleolus. VAMC outpatient treatment records show that in February 2004, the Veteran had x-rays taken of her right ankle. It was noted that on February 9, 2004, while at work at the VA, the Veteran had slipped and twisted her right ankle. Her right ankle was swollen and tender. X-rays were reported to show no acute fracture or dislocation. There was soft tissue swelling involving the ankle and an anterior effusion was noted. The impression was of no acute bony abnormalities; soft tissue effusion; and anterior joint effusion. The x-ray findings were likely related to ligamentous injury. In December 2007, the Veteran underwent a VA examination. She stated that because of her service-connected left ankle disability, she put more weight on her right ankle. In the late 1990's, her right ankle became weak and started to "go out" on her. Upon physical examination, the Veteran's gait was guarded and slow. Examination of the right ankle showed mild tenderness to palpation. There was no instability or tendon abnormality. An x-ray of the right ankle was normal. The diagnosis was right ankle strain with small bone spur. The examiner opined that the Veteran's right ankle disability was not caused by or the result of either the service-connected left ankle instability or the service-connected left knee ligament laxity. The examiner indicated that on examination, there was no evidence of abnormal weight bearing and the Veteran's gait was not antalgic. There were no biomechanical abnormalities and the Veteran's posture was aligned normally. Private treatment records from the Greensboro Orthopedics show that in August 2008, the Veteran underwent a right ankle arthroscopy with extensive debridement. The preoperative and postoperative diagnoses were right anterior lateral ankle impingement. The surgeon, Dr. B., stated that the Veteran had longstanding anterior lateral right ankle pain that was interfering with her life to the point that she could not do what she wanted to do. Thus, she consented to surgery. In light of the above, while the December 2007 VA examiner addressed the pertinent question of whether the Veteran's right ankle disability was caused by her service-connected left knee disability and/or left ankle disability, he did not address the other pertinent question of whether the Veteran's right ankle disability was aggravated by her service- connected left knee disability and/or service-connected left ankle disability. Further medical clarification is required, as specified in greater detail below. See 38 C.F.R. § 3.159. In regard to the claim for service connection for a respiratory disability, to include pneumonia, bronchitis, and asthma, in May 2006 and December 2007 statements, the Veteran stated that in November 1989, during basic training, she developed bronchitis which later became chronic. She indicated that the following week/month, she was hospitalized with pneumonia. In addition, she reported that she had "asthma - January 1990 - diagnosed 1995." In the Veteran's December 2012 Travel Board hearing, she stated that during service, she experienced some episodic breathing problems. She indicated that she was also hospitalized for pneumonia. According to the Veteran, after her discharge, she continued to experience breathing problems. Ultimately, in approximately 2000, she was diagnosed with asthma and bronchitis. She maintains that her currently diagnosed asthma and bronchitis are related to her period of service, to include her in-service diagnosed pneumonia. The Veteran's service treatment records show that in May 1990, it was noted that the Veteran had a recent history of pneumonia. In February 1992, she underwent an expiration of term of service (ETS) examination. She denied asthma, shortness of breath, and pain or pressure in chest. It was reported that she had been hospitalized at Fort Dix for pneumonia. The Veteran's lungs and chest were clinically evaluated as "normal." A chest x-ray was reported to be normal. Private treatment records from the Commanche County Memorial Hospital show that in January 1994, the Veteran was hospitalized for complaints of chest pain. Upon her discharge, she was diagnosed with arteriosclerotic heart disease with chest pains, mitral valve prolapse, and arrhythmias. In a statement from the Veteran, dated in April 1996, she stated that she was being treated for asthma. In this regard, she submitted private treatment records from Dr. C. which showed that in March 1996, she was treated for numerous symptoms, including shortness of breath. An autoimmune disorder such as lupus was considered. In April 1996, she stated that she still had shortness of breath. The assessment was of probable new onset of reactive airway disease. In addition, VAMC outpatient treatment records show that in April 1996, she was diagnosed with asthma. In May 1998, the Veteran underwent a VA general examination. At that time, the examiner noted that the Veteran had an albuterol inhaler, as needed. The examiner reported that the Veteran did not really complain or at least did not volunteer any pulmonary complaints. A treatment record from the Grant Medical Center shows that in January 2000, the Veteran was treated for asthma. An x-ray report from the Ohio State University Medical Center shows that in November 2000, the Veteran had a chest x-ray taken. The x-ray was reported to show clear lung fields with no pleural effusions. Bondy structures were normal and there was a normal cardiomediastinal silhouette. VAMC outpatient treatment records, dated from June 2003 to July 2004, show that in August 2003, the Veteran underwent a cardiology follow-up evaluation. At that time, it was reported that the Veteran had recent asthmatic bronchitis. Private treatment records from Mount Carmel Hospital reflect that in January 2005, the Veteran was treated for her asthma. She stated that for the past three days, she had experienced an exacerbation of her symptoms. Following the physical examination, she was diagnosed with acute asthma exacerbation and acute bronchitis. The Veteran is competent to report what comes to her through her senses, which would include experiencing shortness of breath during and after service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). In light of the foregoing, given that the Veteran had pneumonia during service, and in light of the fact that she has current diagnoses of asthma and bronchitis, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of the currently diagnosed asthma and bronchitis, and to determine if the Veteran has any residuals of her in-service pneumonia. The Veteran was last afforded a VA examination which addressed her service-connected left knee and ankle disabilities in November 2011. At that time, the examiner stated that in regard to ankylosis of the right ankle, while on the examination table, the Veteran had ankylosis and plantar flexion between 30 and 40 degrees with repetition. However, the examiner noted that on weightbearing, she did not have ankylosis. Thus, it is unclear as to whether the Veteran has ankylosis of the right ankle. In addition, in the Veteran's December 2012 Travel Board hearing, she stated that her left knee gave out on her and that she had to wear a brace. Thus, in light of the foregoing, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claims. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In the December 2012 Travel Board hearing, the Veteran stated that she received treatment for her left knee from a Dr. O. of Greensboro Orthopedics. She also indicated that she saw a Dr. B. at Greensboro Orthopedics for her right ankle disability. The evidence of record includes private treatment records from Greensboro Orthopedics, dated from June to September 2008, and show treatment by Dr. B. There are no references to Dr. O. in the records. Given that the Veteran has reported that she saw Dr. O. in March 2013, VA is on notice of the potential existence of additional records from Greensboro Orthopedics. Therefore, these records should be obtained prior to any further appellate review of this case. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see generally Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992). As additional action by the RO may be helpful in either obtaining such putative records, or documenting information that the medical records cannot be obtained, further development in this regard is warranted. As stated in the Introduction of this decision, in a consent form that the Veteran submitted in February 2013, she referred to records from the Mount Carmel West Hospital in Columbus, Ohio, for treatment of asthma and pneumonia in approximately March 2004. On the consent form, it was indicated that the RO was subsequently notified by the hospital that they did not have any records prior to 2006. However, the evidence of record already includes private treatment records from the Mount Carmel West Hospital and the Mount Carmel East Hospital, dated from June 1999 to January 2004. Since it appears that there are records beyond January 2004, these records should be obtained prior to any further appellate review of this case. See Bell, supra. Accordingly, the case is REMANDED for the following action: 1. After securing any necessary releases, the RO should contact Dr. O. and Dr. B. of Greensboro Orthopedics and ask that they provide any treatment records pertinent to the Veteran. All attempts to secure these records must be documented in the claims file. If no records are found, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 2. After securing any necessary releases, the RO should contact the Mount Carmel West Hospital and the Mount Carmel East Hospital and ask that they provide any treatment records pertinent to the Veteran from January 2004 to the present. All attempts to secure these records must be documented in the claims file. If no records are found, the Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded the following examinations: (A) a VA medical examination conducted by a qualified PHYSICIAN to ascertain the etiology of her respiratory disability, to include pneumonia, bronchitis, and asthma. The claims folder must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) Does the Veteran currently have any residuals of pneumonia? If so, are such residuals related to her in-service diagnosis of pneumonia? (ii) Is the Veteran's currently diagnosed asthma related to her period of service, to include her in-service diagnosis of pneumonia and/or claimed symptoms of shortness of breath? (iii) Is the Veteran's currently diagnosed bronchitis related to her period of service, to include her in-service diagnosis of pneumonia and/or claimed symptoms of shortness of breath? An explanation must be provided for any opinion or conclusion expressed. (B) a VA orthopedic examination to ascertain whether the Veteran's right ankle disability is aggravated by her service-connected left knee disability and/or left ankle disability, and to determine the current severity of the service-connected left knee and ankle disabilities. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must specifically review the December 2007 VA examination report and the private August 2008 operative report. All appropriate tests and studies should be accomplished. In regard to the Veteran's RIGHT ANKLE disability, after a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) Is the Veteran's right ankle disability, currently diagnosed as right ankle strain/ right anterior lateral ankle impingement, AGGRAVATED by her service-connected left knee disability, characterized as lateral collateral ligament laxity of the left knee with reduced flexion and extension, and/or service-connected left ankle disability, characterized as left ankle instability, postoperative? (ii) If the Veteran's right ankle disability was aggravated by her service-connected left knee disability and/or left ankle disability, to the extent that is possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the nonservice-connected right ankle disability (e.g., slight, moderate) before the onset of aggravation. The examiner also MUST specifically comment on the Veteran's allegation that due to her service-connected left knee and ankle disabilities, she developed ambulatory changes such as favoring her right ankle, which in turn aggravated her right ankle disability. The examiner is further informed that 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. With respect to the Veteran's LEFT KNEE AND ANKLE disabilities, the following considerations will govern the examination: (i) The examiner must conduct complete range of motion studies and describe all current left knee and ankle symptomatology. For the LEFT KNEE, the examiner must state whether there is recurrent subluxation or lateral instability, and, if so, whether disability manifested by recurrent subluxation or lateral instability is best characterized as "slight," "moderate," or "severe." (ii) For the LEFT KNEE, the examiner must state whether the semilunar cartilage is dislocated, and whether there are frequent episodes of locking, pain, or effusion into the joint. (iii) For the LEFT KNEE, the examiner must also indicate whether there is any evidence of impairment of the tibia or fibula in terms of malunion or nonunion. If there is evidence of malunion of the tibia or fibula, the examiner must indicate whether the resulting disability is best described as "slight," "moderate," or "marked" in degree. If there is evidence of nonunion of the tibia or fibula, the examiner must indicate whether loose motion is present and whether a brace is required. (iv) For the LEFT ANKLE, the examiner must indicate whether there is ankylosis present, and if so, whether such is at plantar flexion less than 30 degrees; plantar flexion between 30 and 40 degrees, or dorsiflexion between 0 and 10 degrees; or in plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees with abduction, adduction, inversion or eversion deformity. (v) For the LEFT ANKLE, the examiner must also indicate whether the Veteran has ankylosis of the subastragalar or tarsal joint (either in poor weight-bearing position, or in good weight-bearing position) or malunion of the os calcis or astragalus, and if so, whether it is best described as moderate or marked. The examiner must further indicate whether there is any evidence of astragalectomy. (vi) For both the LEFT KNEE and the LEFT ANKLE, the examiner must render an opinion as to the extent to which the Veteran experiences weakness, excess fatigability, incoordination, or pain in her left knee and left ankle due to repeated use or flare-ups, and must equate these problems to additional loss in range of motion beyond that shown clinically. If the loss of motion manifested on examination represents maximum disability, or there are no functional limitations shown, the examiner must so state. (vii) AS TO ALL OF THE CLAIMED SUBJECTIVELY-REPORTED SYMPTOMS AND THEIR SEVERITY, the examiner must state whether they are supported by clinical findings. A complete explanation for all opinions expressed must be provided. 4. After completion of the above, and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative, if any, an SSOC and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs