Citation Nr: 21007170 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-10 086 DATE: February 8, 2021 ORDER Prior to March 20, 2020, entitlement to a disability rating higher than 30 percent for migraine headaches is denied. Effective March 20, 2020, entitlement to a disability rating higher than 50 percent for migraine headaches is denied. Entitlement to a 30 percent rating, but no higher, for gastroesophageal reflux disease (GERD) is granted. Prior to March 20, 2020, entitlement to a compensable disability rating for left knee instability is denied. Effective March 20, 2020, entitlement to a disability rating higher than 10 percent for left knee instability is denied. Entitlement to a compensable disability rating for left knee limitation of flexion is denied. Entitlement to a disability rating higher than 10 percent for left knee medial collateral ligament strain is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to a disability rating higher than 30 percent prior to March 9, 2020 and more than 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to March 20, 2020, the Veteran’s migraine headaches were characterized by prostrating attacks occurring on an average of at least once a month over the last several months that required the use of medication and rest; the headaches were not productive of severe economic inadaptability. 2. From March 20, 2020, the manifestations of the Veteran’s migraine headaches due to undiagnosed illness have approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. During the period on appeal, the Veteran’s GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal pain, productive of consideration impairment of health; it is not manifested by material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 4. The Veteran’s left knee medial collateral ligament strain is manifested by complaints of pain and limited range of motion. Flexion was better than 45 degrees and extension was better than 10 degrees. 5. Prior to March 20, 2020, the Veteran’s left knee medial collateral ligament strain was not manifested by instability or subluxation. 6. From March 20, 2020, the Veteran’s left knee medial collateral ligament strain is not manifested by greater than slight subluxation or instability. CONCLUSIONS OF LAW 1. Prior to March 20, 2020, the criteria for a disability rating higher than 30 percent for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. From March 20, 2020, the criteria for a disability rating higher than 50 percent for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. The criteria for a 30 percent, but no higher, disability rating for GERD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. 4. The criteria for a disability rating higher than 10 percent for left knee medial collateral ligament strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 5. Prior to March 20, 2020, the criteria for a separate compensable disability rating for subluxation or instability associated with left knee medial collateral ligament strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 6. From March 20, 2020, the criteria for a disability rating more than 10 percent for subluxation or instability associated with left knee medial collateral ligament strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 7. The criteria for a compensable disability rating for left knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2008 to July 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also presented testimony before RO personnel in April 2016. A transcript of the hearing is associated with the record. In July 2019, the Veteran testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In January 2020, the Board remanded the Veteran’s claims for evidentiary development. The record reveals that in an August 2020 rating decision, the RO increased the rating for the Veteran’s PTSD to 70 percent effective March 9, 2020; increased the rating for migraine headaches from 30 percent to 50 percent effective March 20, 2020; awarded a separate rating for left knee instability effective March 20, 2020 and awarded a separate rating for left knee limitation of flexion effective March 20, 2020. However, as these increased evaluations did not constitute a full grant of the benefits sought, the Veteran’s claims for higher evaluations remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran’s claims folder has returned to the Board for further appellate consideration. The Board notes that a claim of service connection for a left eye disability was remanded in January 2020. In an August 2020 rating decision, the RO granted this claim. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Increased Rating Pertinent legal criteria Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine headaches In the March 2014 rating decision, the Veteran was awarded service connection for migraine headaches and assigned 30 percent disability rating effective July 7, 2013. He subsequently appealed the assigned disability rating and perfected an appeal as to this matter. He was thereafter awarded a 50 percent rating for the migraine headaches effective March 20, 2020. The Veteran contends that a higher rating is warranted. The Veteran’s migraine headaches have been evaluated by the RO under Diagnostic Code 8100. Under Code 8100, migraine headaches resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraine headaches resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating;” nor has the Court. By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” In weighing the evidence of record, the Board finds that the Veteran’s headaches more nearly approximate the criteria for a 30 percent rating under Diagnostic Code 8100 prior to March 20, 2020. In this regard, the evidence fails to show that the Veteran’s migraine headaches are completely prostrating and productive of severe economic inadaptability, such as would warrant a 50 percent evaluation. While the Veteran’s headaches undoubtedly result in discomfort and require medication for treatment, the evidence does not show that they result in the degree of impairment contemplated for a 50 percent evaluation under Diagnostic Code 8100, in particular capable of producing severe economic inadaptability. The Board acknowledges the January 2015 VA examination report that noted the Veteran’s headaches are manifested by pulsating or throbbing head pain, pain on both sides of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision and last 1-2 days in duration. Moreover, the examiner specifically noted that the headaches are prostrating in nature and occur once every month. The Board further acknowledges the findings of Dr. John Ellis in his May 2019 private treatment report wherein the Veteran reported the headaches are associated with nausea, vomiting, photosensitivity, phono sensitivity, and blurry vision and last for six hours to three days at a time. Also, Dr. John Ellis noted the Veteran had lost jobs due to the headaches and had to use sick and annual leave for his headaches. The Veteran also reported having to miss work in other statements such as testimony during an Apri 2016 RO hearing. However, the January 2015 VA examiner opined after examination of the Veteran that the Veteran’s migraine headaches are not productive of severe economic inadaptability. Indeed, the Veteran testified at the July 2019 Board hearing that while he gets headaches as many as three to five times a week that cause an inability to function, he was able to stay at his place of employment for the past two years as he was able to make up the hours lost when he had a headache. Pertinently, there is no indication that the Veteran’s job was in jeopardy due to the headaches. Moreover, the Board finds that there has been no objective evidence submitted that his headaches have impaired his employment beyond that contemplated by the 30 percent rating. Thus, while the frequency of his headaches may be more than once a month, his headaches are not productive of severe economic inadaptability. As such, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran’s migraine headaches prior to March 20, 2020. With regard to whether a disability rating more than 50 percent is warranted from March 20, 2020, the Board has considered all symptoms experienced due to the migraine attacks as well as the frequency, duration, severity, and economic impact of those attacks during this period as such criteria are contemplated by Diagnostic Code 8100. However, the Veteran has the highest evaluation for the disorder during this period. Therefore, such claim is denied. GERD The Veteran was awarded service connection for GERD in the March 2014 rating decision and a 10 percent rating was assigned effective July 7, 2013. The Veteran contends that a higher rating is warranted. The RO evaluated the Veteran’s GERD pursuant to Diagnostic Code 7346. GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Hiatal hernia is evaluated as follows: symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent); persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); and with two or more of the symptoms for the 30 percent evaluation of less severity (10 percent). The Veteran was provided a VA examination in January 2015. He reported having nausea, vomiting, heartburn, and substernal chest pain that radiated at times to his right shoulder. Moreover, he had difficulty swallowing and had an acid taste at the back of his throat. He took Omeprazole for treatment. The examiner documented dysphagia, pyrosis, reflux, substernal and shoulder pain, sleep disturbance, nausea, and vomiting four or more times per year with duration of less than one day. The Veteran did not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The Veteran noted that the disability affected work in that when he experienced symptoms, he had to lay down until the symptoms went away. In his May 2019 private report, Dr. John Ellis noted the Veteran’s GERD symptoms which included severe heartburn with epigastric discomfort, nausea, acid reflux and sour taste in the throat in the morning. He also noted the Veteran’s report that the Veteran avoided eating spicy and greasy foods as well as tomato based acidic foods. The Veteran was started on a proton pump inhibitor to help with symptoms. The Veteran was afforded another VA examination in March 2020. He continued to report acid reflux, substernal chest pain, difficulty swallowing, and heartburn. He also used medication for treatment. The examiner documented persistently recurrent epigastric distress as well as dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance, nausea, and vomiting with episodes of such occurring four or more times per year and lasted less than one day in duration. The Veteran also testified as to his GERD symptoms at the April 2016 RO hearing as well as at the July 2019 Board hearing. In particular, he reported frequent shoulder pain, regurgitation which caused difficulty speaking, using medication, difficulty swallowing, avoiding spicy foods, and having weight fluctuation Based on review of the evidence of record, the Board finds that the Veteran’s main complaints as to his diagnosed GERD appear to pertain to reflux symptoms and on review, the predominant disability picture is reflected under Diagnostic Code 7346. Thus, the Board will apply this Diagnostic Code. The Board finds that a 30 percent disability rating is warranted for the Veteran’s GERD under Diagnostic Code 7346. As discussed above, a 30 percent rating is warranted under Diagnostic Code 7346 when the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. As discussed above, the Board finds that the objective evidence to include the VA examinations in particular support a finding that such criteria have been met or approximated. The Board also notes the Veteran’s lay statements discussed above which also support a 30 percent rating and the Board has no reason to doubt the Veteran’s report of symptoms associated with his GERD. Moreover, although the record demonstrates that medication is somewhat effective in managing the Veteran’s symptoms, the Board acknowledges that the Court has held that, where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). In light of the foregoing, without consideration of the effects of medication on the Veteran’s disability, the Board will resolve the benefit of the doubt in the Veteran’s favor and find that a 30 percent evaluation is warranted for the Veteran’s GERD. However, the Board further finds during the entire period under consideration a higher 60 percent disability rating is not met or approximated. In this regard, while the Veteran has arguably demonstrated pain and vomiting and he has reported material weight loss, the evidence is absent any findings of hematemesis or melena with moderate anemia. Indeed, the Veteran testified during the July 2019 Board hearing that he was not anemic. Moreover, although Dr. John Ellis noted in the May 2019 report that the Veteran’s heartburn is severe, the remainder of evidence does not indicate the Veteran’s GERD has caused a severe impairment of health. Notably, such was not documented during the VA examinations and there are no findings contrary to the VA examinations such that severe impairment of health has been demonstrated. Accordingly, the Board finds that a 60 percent rating is not warranted at any time during the period under consideration. A uniform rating is warranted, and the Board finds no basis for assigning a rating greater than 30 percent at any time during the appeal period. See Fenderson, supra. Left knee disabilities In the March 2014 rating decision, the RO awarded the Veteran service connection for left knee medial collateral ligament strain and assigned a 10 percent disability rating effective July 7, 2013. Thereafter, in an August 2020 rating decision, the RO awarded the Veteran a separate 10 percent rating for left knee instability effective March 20, 2020 as well as a separate noncompensable rating for left knee limitation of flexion effective March 20, 2020. The Veteran contends that increased ratings are warranted. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2019). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran’s left knee medial collateral ligament strain is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (limitation of extension). Also, his left knee limitation of flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion). The Board notes that the Veteran’s left knee medial collateral ligament strain is primarily manifested by knee pain and limitation of motion. As such, the Board finds that Diagnostic Codes 5260 and 5261 which pertain to knee flexion and extension and will be discussed immediately below, are for application. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of leg extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Additionally, under 38 C.F.R. § 4.59 (2019), it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. This applies even if arthritis is not shown. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board will therefore address whether the Veteran is entitled to a separate compensable rating for left knee subluxation or instability prior to March 20, 2020 and whether he is entitled to a disability rating more than 10 percent for such thereafter. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. DC 5258 Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. The Board additionally notes that there is no evidence of ankylosis of the left knee, impairment of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply in this case. The Veteran was provided a VA examination in January 2015. He wore a knee brace and used medication for treatment. He also reported flare-ups that occurred twice per week and lasted 5-6 hours in duration. He further noted functional loss manifested by constant pain and he had pain upon sitting, standing, and walking. Range of motion testing revealed flexion to 130 degrees and extension to zero degrees. The examiner noted pain on examination but it did not result in or cause functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. The Board also notes the May 2019 private report from Dr. Ellis who reported that the Veteran has severe stiffness in the left knee with decreased range of motion. Dr. Ellis noted that the Veteran’s knee gave out on him and he would have to catch himself from falling. Range of motion at that time revealed flexion to 55 degrees and extension to 10 degrees. On VA examination in March 2020, the Veteran reported stiffness in the left knee as well as painful and decreased range of motion, fatigue, and instability. He reported flare-ups that were precipitated by cold weather, walking, running, and going up and down stairs. He noted functional loss manifested by difficulty squatting. He used a brace on occasion. Range of motion testing revealed flexion to 60 degrees and extension to zero degrees. The examiner noted that range of motion contributed to a functional loss in that the reduction in range of motion caused difficulty squatting. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain with weight bearing and nonweight bearing as well as crepitus. The Veteran was able to perform range of motion testing with at least three repetitions, although his flexion was reduced to 50 degrees. Pain, fatigue, weakness, and lack of endurance caused functional loss and limited range of motion to 50 degrees flexion and zero degrees extension. During a flare-up, the examiner indicated that range of motion would be 50 degrees flexion and zero degrees extension. Contributing factors to the left knee disability consisted of less movement than normal, weakness movement, disturbance of locomotion, and interference with sitting and standing. The examiner further noted that the left knee had a meniscus condition that caused frequent episodes of joint “locking” and frequent episodes of joint pain. The examiner further noted that the left knee was manifested by lateral instability (1+ (0-5 millimeters). The Board further notes statements from the Veteran to include his report in March 2014 when he noted that he was not able to bend, squat, or kneel for more than a short time and there was severe popping and grinding in the knee. He also had a difficult time walking up and down stairs. He testified during the April 2016 RO hearing as well as the July 2019 Board hearing that the left knee causes pain and inability to carry heavy objects and the knee gives out on him. With regard to forward flexion of the Veteran’s knee, there is no objective evidence that establishes flexion was ever less than 50 degrees in the left knee. As discussed above, the VA examinations and May 2019 evaluation from Dr. John Ellis indicates range of motion in the left knee greater than 45 degrees. Thus, a separate rating is not for assignment under Diagnostic Code 5260 prior to March 20, 2020, and a compensable evaluation is not warranted at any point during the appeal. With regard to extension of the Veteran’s left knee, the VA examination reports and evaluation from Dr. Ellis note extension that is not worse than 10 degrees. There are no findings of greater limitation of extension during the period under consideration. Thus, a disability rating more than 10 percent for the left knee extension cannot be assigned based on Diagnostic Code 5261. The Board also notes that prior to March 20, 2020, the objective evidence of record is pertinently absent that either recurrent subluxation or lateral instability of the left knee exists such that a separate compensable rating under Diagnostic Code 5257 is warranted. In this regard, although the Board acknowledges the Veteran’s report of his left knee giving out, the January 2015 VA examination report documented the absence of recurrent subluxation and lateral instability. Moreover, stability testing was normal, and the Veteran only noted use of a brace for his left knee. There are no objective findings otherwise contrary to the VA examination findings. Specifically, although the March 2019 report from Dr. Ellis states that the Veteran reported that the Veteran’s left knee gives out often and he has to catch himself from falling while using the stairs, he did not conduct any instability testing. The Board finds this significant as it was not until the March 2020 VA examination, wherein specific instability testing was conducted, that lateral instability of 1+ was shown. Notably, anterior instability, posterior instability, and medial instability were all normal. Thus, the Board concludes that no more than slight instability was shown effective March 20, 2020, as the most probative evidence reflects 1+, no more than the lowest level of instability, was shown. The Board has also considered whether a separate rating is warranted under Diagnostic Code 5258. As noted, the March 2020 VA examiner noted frequent episodes of locking and pain. However, the examiner did not find frequent episodes of effusion into the joint. The Board observes that DC 5258 requires all three symptoms; frequent episodes of locking, pain, and effusion into the joint. Without any indication of frequent episodes of effusion into the joint, a rating under DC 5258 is not warranted. REASONS FOR REMAND Service connection for a respiratory disorder. The Board remanded the Veteran’s claim of service connection for a respiratory disorder in January 2020 for the Veteran to be provided a VA examination to determine whether he had a respiratory disorder related to service. The Board notes pursuant to the Board remand, the Veteran was provided a VA respiratory examination in March 2020. After examination of the Veteran and consideration of his medical history, the VA examiner did not diagnose the Veteran with a respiratory disorder. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, although a respiratory disorder was not rendered during the March 2020 VA examination, the Board observes that a private treatment record dated May 2019 from Dr. John Ellis documents a finding of bronchial asthma and bronchiectasis. Therefore, the Board finds a clarifying medical opinion would be probative in ascertaining whether the Veteran’s current asthma and bronchiectasis are is related to his service. Increased ratings for PTSD. With regard to the Veteran’s claim of entitlement to an increased disability rating for PTSD, following the most recent adjudication of this claim (an August 2020 supplemental statement of the case (SSOC)), additional pertinent evidence, specifically a VA mental disorders examination dated September 2020 was associated with the claims file without a waiver of review. Under this circumstance, the Board will remand this matter for RO consideration of the additional evidence received in the first instance and issuance of a supplemental statement of the case reflecting any further action required and consideration of that evidence. See 38 C.F.R. §§ 19.31(a), 19.37(a). The matters are REMANDED for the following action: 1. Forward the Veteran’s claims folder to the VA examiner who provided the March 2020 VA respiratory examination to determine the nature and etiology of the Veteran’s respiratory disorder. If that examiner is not available, then forward the Veteran’s claims folder to another appropriately qualified medical professional. The examiner must opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has a respiratory disorder to include asthma and bronchiectasis that is related to his service, to include exposure to jet exhaust fumes as well as sandstorms and burn pits. The examiner should consider the private treatment record dated May 2019 from Dr. Ellis documenting a finding of bronchial asthma and bronchiectasis. The underlying reasons for all opinions expressed must be provided. 2. Review the claims file and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include the claim for an increased rating for PTSD. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney with the requisite period of time to respond. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, Counsel 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.