Citation Nr: 9920521 Decision Date: 07/26/99 Archive Date: 08/03/99 DOCKET NO. 95-01 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date prior to July 15, 1992, for a grant of service connection for a back disorder. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to service connection for fibrocystic breast disease of the left breast. 4. Entitlement to an initial evaluation greater than 10 percent for the residuals of a right knee injury. 5. Entitlement to a temporary total rating based on a period of hospitalization from June 10, 1994 to July 5, 1994. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Smith, Associate Counsel INTRODUCTION The veteran had active service from September 1980 to October 1983. This appeal is before the Board of Veterans' Appeals (Board) from determinations of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that this case involves an appeal as to the initial rating of the veteran's knee disability, rather than an increased rating claim where entitlement to compensation had previously been established. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that in initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings). This issue has been recharacterized accordingly. The Board notes that in November 1995 the RO, among other things, denied entitlement to a total disability rating for compensation purposes on the basis of individual unemployability. The claimant timely appealed the above determination and was issued a statement of the case. However, she did not file a timely substantive appeal. The issue of entitlement to a total disability rating for compensation purposes on the basis of individual unemployability is therefore not an issue on appeal. The Board further notes that the issue of a total rating for the veteran's back disability requiring hospital treatment was not certified on appeal to the Board. The record shows that the issue was adjudicated in a September 1995 rating decision. The veteran filed a notice of disagreement in October 1995 and a statement of the case was issued in November 1995. The veteran submitted a statement received by the RO in December 1995, wherein she asserted that she was entitled to a 100 percent evaluation for her service- connected back disability because of her hospital treatment. The Board finds that this statement constitutes a substantive appeal, which was timely filed. 38 C.F.R. §§ 20.202, 20.302(b) (1998). Accordingly, the issue of whether entitlement to a temporary total rating for the service- connected back disability under 38 C.F.R. § 4.29 is warranted is addressed in this decision. The issue of entitlement to service connection for post- traumatic stress disorder (PTSD) is addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran did not appeal the April 1984 determination wherein the RO denied her claim for service connection for a back disorder and the determination is final. 2. The veteran abandoned her back disorder claim in connection with her second application dated in July 1984. 3. The claim received by the RO on July 15, 1992, establishing the veteran's intent to seek service connection for a back disorder constitutes a reopened claim. 4. Entitlement to service connection for a back disability arose in connection with a VA examination dated in August 1992, and receipt of service medical records in the veteran's possession. 5. The claim for service connection for fibrocystic disease of the left breast is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 6. The evidence of record shows that the residuals of the right knee disability consist of complaints of pain when bearing weight directly on the knee and clinical findings of tenderness in the area of the anterolateral joint line. 7. The probative medical evidence does not show that the impairment of the tibia is manifested by greater than mild knee disability. 8. The hospitalization of the veteran during the period from June 10, 1994 to July 5, 1994, did not involve treatment in excess of 21 days for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an effective date, prior to July 15, 1992, for a grant of service connection for a back disorder have not been met. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.158(a), 3.400(b)(2)(i), (q)(2), 3.655(b) (1998). 2. The claim for service connection for fibrocystic disease of the left breast is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The criteria for an initial evaluation in excess of 10 percent for the residuals of a right knee injury have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5262 (1998). 4. The criteria for a temporary total rating based on hospitalization from June 10, 1994 to July 5, 1994, have not been met. 38 C.F.R. § 4.29 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an effective date, prior to July 15, 1992, for a grant of service connection for a back disorder. Factual Background The record contains an application for compensation (VA Form 21-526) received by the RO on January 24, 1984. The application shows that the veteran requested service connection for a back strain. In an April 1984 rating decision, the RO denied service connection for low back strain. The decision shows that the service medical records did not show treatment for a back disorder and noted that the service medical records may have been incomplete. The veteran filed a second application for compensation, which the RO received on July 20, 1984, requesting service connection for low back strain and a right knee disorder. A November 1984 letter from the VA Chief of the Medical Administration Service shows that the veteran's records were not received from her following a plastic surgery consultation at a private medical facility. The letter shows that the examination request would be returned to the RO, unless the VA medical facility was contacted by the veteran. A May 1985 report of field examination shows that an examiner was enlisted to contact the veteran and secure her assistance in locating the claims file. The RO notified the veteran in a June 1985 letter that it could not take any further action on her claim unless she indicated her willingness to report for an examination. The RO indicated in the letter that it would reconsider the claim when an examination was completed. A report of contact dated on July 15, 1992, shows that the veteran gave her claims file and service medical records to a representative of the Texas Veterans Commission at the VA outpatient treatment facility in Austin, Texas. The record contains a claim filed by the veteran that was received on July 15, 1992 requesting to continue her claimed disabilities for her right knee and back disorder and also apply for service connection for fibrocystic disease and post-traumatic stress disorder. In an August 1992 VA examination, the examiner diagnosed lumbar and thoracic pain secondary to muscle strain. The veteran reported injuring her back in a fire department exercise during service and that she has had intermittent pain since that time. In a February 1993 rating decision, the RO granted service connection for a low back strain, effective July 15, 1992. The rating decision shows that the RO predicated its determination on the service medical records and VA examinations performed in August 1992 and January 1993. Criteria A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (1998). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (1998). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (1998). The regulations also provide that a veteran may receive benefits by filing an informal claim, which is defined by "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant ... may be considered an informal claim." 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought; and, upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. According to the statute, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 1991 & Supp. 1999). Applicable law and regulation provides an exception to the foregoing rule, where the effective date for disability compensation shall be the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award based upon the submission of new and material evidence under § 3.156, other than service department records received after final disallowance will be the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). Where the new and material evidence consists of service department records, the effective date of the award will be assigned "[t]o agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later, subject to rules on original claims filed within 1 year after separation from service." 38 C.F.R. § 3.400(q)(2). Analysis In the case at hand, the Board finds that the criteria for an earlier effective date have not been met. The veteran's claim for an earlier effective date turns on the disposition of her prior claim of service connection for a back disorder. Initially the Board notes that the veteran's claim of service connection for a back disorder was denied in an April 1984 rating decision. The record shows that the veteran was notified of the RO's determination in an April 1984 notice. The letter was mailed to the veteran's address indicated in her application. The law provides that if no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1998). The Board finds that the April 1984 determination wherein the RO denied the veteran's claim for service connection for a back disorder is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.192 (1983). The record shows that the veteran filed a second application requesting service connection for her back disorder in July 1984, three months following the April 1984 rating decision. The Board finds that the veteran abandoned her claim in connection with her second application. This conclusion is established by the veteran's failure to submit evidence required to adjudicate her claim and her failure to report for a VA orthopedic examination. "Where the VA notifies a claimant of the need for further evidence and the claimant fails to respond within one year of that notice, the claim is deemed to have been abandoned. ... [I]ndividuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establish allowance of benefits." Morris v. Derwinski, 1 Vet. App. 260, 264 (1991) (citing 38 U.S.C. § 3003(a) (1988), currently codified at 38 U.S.C. § 5103 (1994)); see also 38 C.F.R. § 3.158 (1998). The record establishes that the veteran failed to submit evidence necessary to adjudicate her claim by retaining her service medical records. The record shows that the veteran was given her records in connection with a plastic surgery consultation at a private facility. The RO mailed a letter to the veteran in November 1984 stating that she was given her records following the private consultation and that the records had not been returned to the VA facility. The letter shows that veteran was further informed that her claim could not be evaluated without the records. The veteran was contacted and interviewed by a field examiner in May 1985 regarding the location of the missing records. Notwithstanding the RO's notice and the field examiner's efforts, the medical records were not returned to VA. In her September 1993 personal hearing, the veteran reported that she returned her records following the private consultation to an orderly dressed in a white hospital uniform. She testified that this is the last time she saw her hospital records. She further reported that the records were mailed to her by the hospital or VA. The Board does not find the veteran's testimony to be credible in light of the fact that the records were in her possession and submitted by her in July 1992. While it is possible that the records were returned to the VA medical facility in October 1984 and subsequently mailed to her, the record does not reflect that the records were subsequently mailed to her. Rather, the findings of the field examiner in May 1985 and the subsequent reappearance of the records in July 1992 are consistent with a conclusion that the veteran had possession of the records the entire time. The record does not contain the envelope in which the records could have been mailed to her or her family for the Board to conclude otherwise. Moreover, interviews of personnel at the VA medical facility show that it did not have custody of the records following the private medical consultation. In light of the foregoing, the Board finds that the veteran did not submit the requested evidence within one year of the request made by the field examiner and the RO in its November 1984 notice; hence, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). Secondly, the veteran was informed in a June 1985 letter that the RO could not take further action on her claim unless she reported for a VA examination. The letter also shows that she had not completed the examination scheduled in September 1984, and for that reason it had no choice but to deny the claim. The record does not show that the veteran responded to the RO's inquiry. The letter was mailed to the address indicated by the veteran in her second application for compensation. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The veteran's second application is predicated on a reopened claim which was previously disallowed in light of the prior adjudication of her back disorder claim by the RO in April 1984. The record reflects that a current VA orthopedic examination of the veteran had been scheduled and requested the veteran's assistance to complete the examination. Under these circumstances, the Board finds that the veteran failed to report to the examination. The pertinent law provides in such circumstances that the claim shall be denied. The Board notes that failure to report for a VA examination in cases of an alternative known address may preclude a finding of abandonment. See Hyson v. Brown, 5 Vet. App. 262, 264-65 (1993). The record shows that the June 1985 notice was mailed to the veteran's post office box as reported by the field examiner in the May 1985 report as the latest address of record. While the notice shows a different zip code than the report, the record does not show that the letter was returned as undeliverable. The Board also notes that the record contains three different addresses of the veteran for this period following service. These addresses are neither possible or plausible addresses in light of the field examiner's inability to ascertain the veteran's place of residence. The Board notes that it has applied the current regulatory law regarding abandoned claims and failure to report for VA examinations. Where a regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the "version most favorable to appellant" applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In light of the fact that the veteran abandoned her claim in 1985, the Board concludes that the administrative process had been concluded. Hence, Karnas does not apply. See Jones v. West, 12 Vet. App. 98, 104 (1998). The regulations provide that in cases of abandoned claims "should the right to benefits be finally established ... compensation based on such evidence shall commence not earlier than the date of filing the new claim." 38 C.F.R. § 3.158(a). Here, the new claim was filed received on July 15, 1992. The criteria for determination of effective dates predicated on new and material evidence received after final disallowance provides that the effective is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). The record shows that the entitlement arose when the veteran underwent an August 1992 VA orthopedic examination. The record also shows that the RO received service medical records from the missing claims file to adjudicate the claim. Under the regulations where new and material evidence consists of service department reports, the effective date is made retroactive to the date of the original claim. 38 C.F.R. § 3.400(q)(2); Spencer v. Brown, 4 Vet. App. 283, 293 (1993). Reading this regulation in concert with the abandoned claims regulation, the Board finds that there is no basis on which to assign an effective date prior to the reopened claim dated on July 15, 1992. The service department reports in light of the discussion above were neither lost nor mislaid, but rather in the possession of the veteran. In addition, the entitlement to service connection for a back disability did not arise until the August 1992 VA orthopedic examination was conducted. The evidence of record shows that the veteran submitted the missing records to the clinic on the week of July 6, 1992. Her claim establishing her intent to seek service connection for a back disorder was received by the RO on July 15, 1992. The applicable law does not provide a basis for assigning an effective date prior to the date of filing the new claim. 38 C.F.R. §§ 3.158(a), 3.400(b), (q). Accordingly, the Board finds that the criteria for an effective date, prior to July 15, 1992, for a grant of service connection for a back disorder have not been met. II. Entitlement to service connection for fibrocystic breast disease of the left breast. Factual Background A September 1984 VA examination report shows that the veteran had bilateral silicone implants performed by a Philippine plastic surgeon. On physical examination, the examiner found a 3-4 millimeter diameter cystic mass in the lateral aspect of the left breast. The impressions were post-operative silicone implants, both breasts, and mild fibrocystic disease of the left breast. A private examination report shows that the veteran was referred from the VA medical facility for evaluation of a left breast mass in October 1985. Physical examination revealed the absence of any dominant lump in the overlying breast tissue or breast lumps, right or left. The examiner noted that he did not feel anything that alarmed him in either breast. On VA examination in August 1992, the examiner found no problem with the implants and no capsular syndrome or problems with scarring. The examiner noted that there were some fibrocystic changes in the left breast. Post-surgical scars under both breasts were very small and nontender and had good cosmetic appearance. The diagnosis was status post cosmetic breast augmentation. In a September 1993 personal hearing, the veteran reported that her fibrocystic breast disease was first diagnosed in 1984. She also reported that it was manifested by little lumps. The VA examiner in an October 1993 examination did not appreciate fibrocystic changes on physical examination. The diagnosis was status post bilateral breast implants, no other breast abnormality apparent. A June 1994 magnetic resonance imagining (MRI) report of the chest shows impressions of intracapsular rupture of the left breast with no extravasation of silicone seen, and intact right breast implant. The report shows that the study was incomplete. A MRI report shows that images of the breasts were taken in October 1998. The findings included no evidence of capsular rupture and no gross masses within the breast parenchyma. The impression was no evidence of rupture. Criteria The initial question is whether the veteran has submitted a well-grounded claim. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski, 1 Vet. App.78, 81 (1990). In order for a claim to be well grounded, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves medical etiology, competent medical evidence that the claim is "plausible" is required in order for the claim to be well grounded. See Caluza, 7 Vet. App. at 504; Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). For the purposes of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is generally presumed. Arms v. West, 12 Vet. App. 188, 193 (1999) (citing Robinette v. Brown, 8 Vet. App. 69, 75 (1995)). Where the claim is well grounded VA has a statutory duty to assist the veteran in her claim. 38 U.S.C.A. § 5107(a) (West 1991). The duty to assist under § 5107(a) includes the duty to obtain pertinent records. See Block v. Brown, 7 Vet. App. 343 (1994); Smith v. Brown, 7 Vet. App. 255 (1994); Caffrey v. Brown, 6 Vet. App. 377 (1994). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 1991). Further, for the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." 38 C.F.R. § 3.303(b) (1998). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1998); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (finding that entitlement need not be established by a fair preponderance of the evidence). Analysis The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza, supra. With respect to the first element, the record contains a VA examination report dated in August 1992. The examiner found fibrocystic changes of the left breast on physical examination. The Board finds that this report constitutes medical evidence of a current disability. Although there are several medical examinations of record which do not establish the presence of fibrocystic disease, for the limited purpose of determining whether the claim is well grounded, the credibility of the evidence is generally presumed. See Arms, supra. As to the second element, the service medical records do not show that fibrocystic disease was diagnosed during service. The service medical records do contain a surgical consultation sheet, which shows that the veteran had breast augmentation surgery performed in 1981. The veteran has also testified that her breast augmentation procedure was performed during service in 1981. The evidence of record shows that the procedure was performed by a physician in the Philippines, rather than a military physician. Nonetheless, the probative lay and medical evidence of record establishes an inservice injury in the form of breast augmentation surgery. The probative medical evidence does not establish the third element of a well grounded claim, specifically it does not show that findings of fibrocystic disease are linked to the breast implant procedure. The Board notes that the issue of whether fibrocystic disease is linked to the veteran's silicone breast implants requires competent medical evidence. Generally speaking, lay persons are not competent to offer evidence that requires medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (holding that lay assertions of medical causation cannot constitute evidence to render a claim well grounded); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for the statements or testimony to be probative as to the facts under consideration). In the case at bar, the evidence showing fibrocystic disease of the left breast does not link the disease to the silicone breast implants. This evidence consists of the September 1984 and August 1992 VA examinations. Neither of the examiners link the fibrocystic changes noted on examination to the breast implants. Because competent medical evidence of a nexus has not been submitted, the Board finds that the veteran's claim is not well grounded. The Board notes that the September 1984 diagnosis of fibrocystic disease is within one year following the veteran's separation from service. Fibrocystic disease, however, is not a disease listed in the regulation that is subject to service connection on a presumptive basis. See 38 C.F.R. § 3.309(a). The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim. The appellant has not indicated the existence of any evidence that has not already been obtained that would well ground her claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board finds that the RO was not under a duty to assist the veteran in developing facts pertinent to her claim for service connection for fibrocystic disease prior to the submission of a well grounded claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). As the veteran's claim for service connection for fibrocystic disease of the left breast is not well grounded, the doctrine of reasonable doubt has no application to the claimant's case. III. Entitlement to an initial evaluation greater than 10 percent for the residuals of a right knee injury. Factual background The service medical records show that upon physical examination of her right knee, the veteran had a slightly movable bony mass at the right tibial tubercle area. The veteran had bony ossicles excised from the right knee in November 1981. In an August 1992 VA examination, the veteran reported that her right knee was painful when placing pressure on it while bending or crawling. On physical examination, the examiner noted pain on palpation over the scar, which ran 7.5 centimeters over the right patella. The examiner found no subluxation or lateral instability or atrophy of the knee. Range of motion in terms of extension and flexion were completely normal without pain. The examiner also noted no crepitus. The diagnosis was history of right knee fracture, status post surgery to remove fragments. X-rays of the right knee were unremarkable. The examiner found no fracture, subluxation, loose bodies within the joint space and noted that the joint space was well-maintained and adjoining bones were intact. The veteran reported in an October 1993 VA examination that she had good range of motion and could walk normally, but could not get down on her right knee without considerable pain. Physical examination revealed no swelling or deformity. Flexion was 140 degrees and extension was 0 degrees, with no instability. The examiner found tenderness to palpation in the area of the anterolateral joint line. The diagnosis was status post tibial fracture with some residual tenderness and inability to kneel on the right knee. Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1998). Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. 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. The functional loss may be due to pain which is supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 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. 38 C.F.R. § 4.45. When a diagnostic code provides for compensation based solely on limitation of motion, the provisions of §§ 4.40 and 4.45 must be considered, and examination upon which evaluations are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups" DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Degenerative arthritis, established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion that is noncompensable under the applicable diagnostic code is assigned a 10 percent evaluation under Diagnostic Code 5003. Id. In the absence of limitation of motion, a 10 or 20 percent evaluation is assigned for x-ray evidence of involvement of 2 or more joints, depending upon whether there are occasional incapacitating exacerbations. Id. Limitation of flexion of the knee to 60 degrees warrants a noncompensable evaluation and to 45 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71, Diagnostic Code 5260. Limitation of extension of the knee to 5 degrees warrants a noncompensable evaluation, and to 10 degrees warrants an evaluation of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal arc of motion for the knee is from 0 degrees of extension to 145 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The criteria for impairment of the tibia and fibula provide a 10 percent evaluation for malunion with slight knee disability and a 20 percent evaluation for moderate knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The applicable provisions in the schedule of ratings provide a 10 percent evaluation for superficial, poorly nourished scars, with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803. A 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804. The schedule also provides that scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Diagnostic Code 7805. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1998); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (finding that entitlement need not be established by a fair preponderance of the evidence). Analysis The Board finds that the veteran has presented a well- grounded claim for an increased rating for her service- connected right knee disability within the meaning of 38 U.S.C.A. § 5107(a). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The Board finds that the probative medical evidence does not show that an initial evaluation greater than 10 percent for the residuals of a right knee injury is warranted. Specifically, the probative medical evidence does not show that the malunion of the tibia and fibula is manifested by greater than mild knee disability to warrant a higher evaluation. The Board notes that the terms "moderate" and "moderately severe" are not defined in the VA Schedule for Rating Disabilities. 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" 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. The medical evidence shows that the veteran's right knee disability is manifested by complaints of pain when bearing weight on the knee and clinical findings of tenderness in the area of the anterolateral joint line. The May 1996 radiographic report shows no evidence of degenerative changes, fractures, or loose bodies in the joint space. The VA examination reports show full range of motion of the knee, normal walking, and no swelling or deformity. The Board finds that this disability picture more nearly approximates the criteria required for impairment of the tibia and fibula manifested by slight knee disability than impairment manifested by moderate knee disability. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5262. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). X-rays of the right knee do not establish findings of degenerative arthritis to warrant consideration of the disability pursuant to Diagnostic Code 5003. The Board has also considered other diagnostic codes related to the knee and leg. The probative medical evidence does not show instability of the right knee, or limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261. The Board has also considered whether functional loss due to pain pursuant to 38 C.F.R. §§ 4.40, 4.45 as articulated by the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") in DeLuca. The clinical findings do not show any limitation of motion of the right knee. The August 1992 VA examiner found that the range of motion was normal without pain. The Board also notes that Diagnostic Code 5262 is not predicated on range of motion, and thus the provisions of §§ 4.40 and 4.45, with respect to functional loss due to pain do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The probative medical evidence also shows that the residuals of the excision of the bony ossicles from the right knee are manifested by a surgical scar. In this regard, a separate evaluation for the operative scar would be available so long as none of the symptomatology associated with the scar is duplicative of or overlapping with the symptomatology associated with musculoskeletal disability contemplated under Diagnostic Code 5262. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The schedular criteria provide an evaluation of 10 percent for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804. Here, a separate evaluation is not warranted because the medical evidence shows that the scar is well-healed. Although the medical evidence shows pain and tenderness to the area, this symptomatology supports the compensable evaluation currently provided under Diagnostic Code 5262. Thus, a separate evaluation is not warranted for the post- operative scar. As required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has considered all potential applicable provisions of all pertinent regulations, whether or not they have been raised by the veteran. However, there is no regulation that provides a basis upon which to assign a higher evaluation with respect to the veteran's service- connected right knee disability, for the reasons discussed herein. Based upon a full review of the record, the Board finds that the evidence is not so evenly balanced as to require application of the benefit of the doubt in favor of the veteran's claim. Gilbert, 1 Vet. App. at 56. Accordingly, the Board finds that the criteria have not been met for a schedular evaluation greater than 10 percent. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5262. In addition, the Board has considered whether separate ratings in excess of 10 percent are warranted for separate periods of time based on the facts found. Fenderson, 12 Vet. App. at 126. V. Entitlement to a temporary total rating for a period of hospitalization from June 10, 1994 to July 5, 1994. Factual Background The veteran was service connected for low back strain in a February 1993 rating decision and assigned an evaluation of 10 percent. VA inpatient treatment records show that the veteran was admitted on June 10, 1994 and discharged on July 5, 1994. The discharge summary shows axis I diagnoses of polysubstance abuse and post-traumatic stress disorder and an axis II diagnosis of mixed personality disorder, borderline. The "hospital course" section of the discharge summary shows that the veteran was admitted secondary to alcohol dependence. Service connection has been granted for residuals of a right knee injury, with fracture of the right tibial plateau, postoperative, evaluated as 10 percent disabling; and for low back strain, evaluated as 10 percent disabling. The combined schedular evaluation is 20 percent. Criteria A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days. 38 C.F.R. § 4.29. The regulation also provides that notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29(b). Analysis In summary, the VA inpatient treatment records reflect that treatment for the period in question was for alcohol abuse. The veteran is not service-connected for substance abuse. The veteran contended in her December 1995 appeal that she was prescribed medication for her back during the rehabilitation process. Following a review of the inpatient treatment records the Board finds that there is no medical evidence that the hospitalization was due to the service-connected back disability. The Board notes that while the records shows that the veteran was treated for disorders other than the alcohol dependence, the records do not show complaints or treatment linked to the veteran's back disability. While the probative medical evidence shows four discharge medications were prescribed, the records do not link any of the medications to the claimed back treatment. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that in a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. Here, the VA inpatient treatment records do not show that the veteran was treated for the service-connected back strain, or for the service-connected disability of the right knee, the only disabilities for which service connection has been granted, for a period in excess of 21 days. Therefore, the veteran's claim must be denied. ORDER Entitlement to an effective date, prior to July 15, 1992, for a grant of service connection for a back disorder is denied. The appellant not having submitted a well grounded claim of entitlement to service connection for fibrocystic breast disease of the left breast, the appeal is denied. Entitlement to an initial evaluation greater than 10 percent for the residuals of a right knee injury is denied. Entitlement to a temporary total rating for a period of hospitalization from June 10, 1994 to July 5, 1994, is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Initially, the Board notes that the veteran's claim of entitlement to service connection for PTSD is well grounded, and accordingly VA's statutory duty to assist attaches to the claim. 38 U.S.C.A. § 5107 (West 1991). In this regard, the veteran testified at a September 1993 personal hearing that she was raped on three separate occasions during service. The record contains an October 1993 VA examination report where the examiner diagnosed PTSD secondary to rape. Accordingly, the record contains evidence of inservice stressors per the veteran's history, a diagnosis of PTSD, and a link between the asserted stressors and the diagnosis of PTSD. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor(s). 38 C.F.R. § 3.304(f) (1998). In this case, the claim is predicated on a non-combat related sexual assaults. Hence, there must be corroborative evidence in addition to the lay testimony of the veteran of the claimed inservice stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). The record contains service personnel records including airmen performance reports and several statements of the veteran which appear to have been drafted during service. These service personnel records and the veteran's statements do not make specific reference to the inservice rapes claimed by the veteran. This evidence does not constitute credible supporting evidence of the sexual assaults reported by the veteran. Remand is warranted in the case at hand in light of the Court's decision in Patton v. West, 12 Vet. App. 272 (1999). The Court noted that VA has undertaken a special obligation to assist a claimant who has submitted a well-grounded claim in producing corroborating evidence of an inservice stressor. Id. at 280 (citing VA Adjudication Manual M21-1, Part III, para. 5.14(c)(8), (9)). In this regard, behavior changes that occurred at the time of the incident may indicate the occurrence of an inservice stressor. Specifically, the M21-1 provisions provide that secondary evidence may need to be interpreted by a clinician especially if it involves behavior changes and whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Due to the complexity of the veteran's service personnel records in terms of the factors listed under paragraph 5.14(c)(8) of the VA adjudication manual, the Board finds that interpretation by a medical clinician is warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board is not competent to supplement the record with its own unsubstantiated medical conclusions). Hence, remand is necessary to verify whether the asserted sexual assault stressors occurred and to obtain additional evidentiary development called for by M21-1 for claims based on personal assault. Patton, 12 Vet. App. at 282. The Board also finds that a contemporaneous and thorough VA examination of the veteran is warranted. As noted above, the veteran reported stressors consisting of three rapes during service. The evidence of record, also shows that the veteran has reported numerous other pre-and postservice stressful incidents. As shown in a June 1994 VA admission, these traumatic incidents include: physical abuse by her father until age 17, a rape incident at age 17, and two rapes at age 35 following service. The Board notes that the October 1993 VA examiner based her opinion of PTSD secondary to rape solely on the claimed inservice sexual assaults. In addition to PTSD, there are also numerous other psychiatric diagnoses shown in the record since the most recent VA psychiatric examination. The postservice diagnoses, assessments, and impressions include PTSD, polysubstance abuse, mixed personality disorder, personality disorder, and depressive disorder. Moreover, the service personnel records have not been reviewed by a VA examiner in connection with the veteran's PTSD claim. Thus, a contemporaneous VA examination with opinions based upon a review of the entire record would be instructive with regard to the appropriate disposition of the issue submitted for appellate consideration. On remand, the veteran should be afforded the opportunity to provide additional evidence. In this regard, the VA Adjudication Manual notes that victims of inservice personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an inservice personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. M21-1, Part III, 5.14(c); see also Patton, 12 Vet. App. 272. In this regard, the veteran has identified that the sexual assaults occurred during the period between January 1981 and December 1982, although no specific dates for each claimed assault have been provided. The veteran should be provided an opportunity to describe each stressful event and the date the event occurred and to provide any alternate sources, which may corroborate her account of the event. In order to ensure that VA has fulfilled its duty to assist the veteran in developing facts pertinent to her claim, this case is REMANDED to the RO for the following development: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or non-VA, inpatient or outpatient, who may possess additional records pertinent to her claim of service connection for PTSD. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment records from all sources identified whose records have not previously been secured. Regardless of the response from the veteran, the RO should secure all outstanding VA treatment records. 2. The RO should afford the veteran the opportunity to submit any alternate available sources that may provide credible support to the inservice personal assaults to support her claim for service connection for PTSD, to include statements from relatives. She should be asked to provide any additional information possible regarding the stressful events claimed to have caused PTSD and to identify potential alternative sources for supporting evidence regarding the stressors she alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that she must be as specific as possible because without such details an adequate search for verifying information can not be conducted. 3. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if the veteran has provided sufficiently detailed information to make such request feasible. The RO should request military police reports for the military installation where the incident(s) was reported and the records from the social actions office at that installation. The veteran noted that she reported being sexually molested by a "SP dog trainer" to the base police. The RO should also request the veteran's Airman Military Record (AF Form 7) from National Personnel Records Center. 4. Thereafter, the RO should arrange for a VA psychiatric examination of the veteran to ascertain the nature of her PTSD symptomatology. A VA examination is also necessary for a clinician to analyze the service personnel records in light of the factors listed in M21-1, Part III, para. 5.14(c)(8). Specifically, to find whether there is evidence of behavior changes at the time of alleged stressor incidents, which might indicate their occurrence. See M21-1, Part III, 5.14(c)(9). The claims file, a separate copy of this remand, and copies of the pertinent M21-1 criteria with respect to personal assault claims should be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examination report must be annotated in this regard. The examiner must determine whether the veteran has PTSD and, if so, whether the inservice stressor(s) are sufficient to produce PTSD. With respect to the claimed inservice stressors, the examiner should review the secondary evidence and evidence of behavior changes shown in the service personnel records. It is requested that the examiner interpret the behavior changes and evidence pertaining thereto and render an opinion whether the behavior changes are related to the claimed stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should specifically comment on whether any preservice stressful incidences and/or pathology was exacerbated due to her experiences during service. It is also requested that the examiner comment on the relationship between any postservice stressors and the current diagnosis of PTSD, if found. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report of the psychiatric examination should be associated with the veteran's claims folder. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. The veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions, and M21-1, Part III, 5.14(c). If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case containing all applicable criteria pertinent to the veteran's claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals