Citation Nr: 9928563 Decision Date: 09/30/99 Archive Date: 10/12/99 DOCKET NO. 94-34 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for residuals of chalazion excision from both eyelids and ptosis of the right eyelid. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to an increased rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and F. J. ATTORNEY FOR THE BOARD Don Hayden, Counsel INTRODUCTION The veteran served on active duty from July 1973 to July 1976 and from January 1979 to October 1983. A September 1984 rating decision by the Veterans Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) in Seattle Washington, in pertinent part, granted service connection for benign systolic murmur with premature ventricular contractions and denied service connection for arthritis of the right knee. The veteran was notified of that decision in October 1984 and submitted timely a notice of disagreement. She did not perfect her appeal within the time limit. This matter has come before the Board of Veterans' Appeals (Board) or (BVA) on appeal from a March 1989 rating decision by the Denver, Colorado RO (Denver RO) which, in pertinent part, continued a previously assigned 20 percent disability rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear following a temporary total (100 percent) disability rating on account of post-surgical convalescence from October 12, 1988 through February 1989. The notice of disagreement was interpreted as disagreeing only with the 20 percent rating, not the effective date of termination of the post-surgical convalescence total rating. In the substantive appeal, submitted in December 1989, the veteran said that she had not been gainfully employed since October 1988, because of problems associated with the right knee surgery; it appears that she disagreed with the effective date of termination of the post-surgical convalescence total rating. Also, in the substantive appeal, the veteran said that she wished to appeal for heart problems; and raised the issue of entitlement to service connection for residuals of chalazion excision and ptosis of the right eyelid. An October 1990 rating decision denied service connection for residuals of chalazion excision and ptosis of the right eyelid and continued the previously assigned 20 percent disability rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear following a temporary total (100 percent) disability rating on account of post-surgical convalescence from April 26, through June 1990. The right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear was rated 20 percent disabling from March 1, 1989 to April 25, 1990. In a January 1991 letter, the veteran requested a hearing to appeal her "service-connected disabilities;" they were right knee, heart condition, eye condition and back problem. In May 1991, the veteran wrote that she wished to reopen her claim for a systolic murmur with occasional premature ventricular contractions "& MVP" as well as service connection for tender scars from knee surgery. At a hearing at the RO in May 1991, the hearing officer initially stated that the issues were entitlement to an increased rating for the right knee disorder, service connection for residuals of chalazion excision and ptosis of the right eyelid and whether there was new and material evidence to establish entitlement to service connection for valvular heart disease. After an off-the-record discussion, it was reported that the veteran was seeking an increased rating for systolic murmur with premature ventricular contractions. In a May 1991 decision, the hearing officer held that the right knee disorder did not warrant a disability rating in excess of 20 percent, that service connection was not warranted for residuals of chalazion excision and ptosis of the right eyelid and that there was no new and material evidence to reopen a claim for entitlement to service connection for valvular heart disease. A July 1991 supplemental statement of the case shows the issues as being entitlement to an increased rating for the right knee disorder, service connection for residuals of chalazion excision and ptosis of the right eyelid and whether there was new and material evidence to establish entitlement to service connection for valvular heart disease. In September 1991, she wrote that she wished to appeal the May 1991 rating decision and all other disabilities. A March 1992 rating decision continued the previously assigned 20 percent disability rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear, the 10 percent disability rating for thoracic muscle strain and the 0 percent disability rating for systolic murmur with occasional premature ventricular contraction and denied a temporary total (100 percent) disability rating on account of post-surgical convalescence for hospitalization and right knee surgery in September 1991. That rating decision also determined that new and material evidence had not been submitted to reopen a claim for service connection for valvular heart disease. The veteran was notified of that decision in March 1992. In a letter, received in March 1992, the veteran said that she wished to appeal the issues of denial of a temporary total disability rating on account of right knee post- surgical convalescence in September 1991 and an "[u]pgrade in compensation," presumably increased ratings. Later that month, the veteran wrote that she was seeking an upgrade in disability; she mentioned only the right lower extremity. She was furnished a supplemental statement of the case in April 1992. The issues were listed as: entitlement to an increased rating for the right knee disorder, including a temporary total disability rating on account of right knee post-surgical convalescence in September 1991, service connection for residuals of chalazion excision and ptosis of the right eyelid and whether there was new and material evidence to establish entitlement to service connection for valvular heart disease. In August 1992, the veteran asked that her heart condition be reevaluated "for service connected" and mentioned that there was no indication of a heart problem during her first period of service but a heart problem was found during her second period of service with mitral regurgitation being found later. No further correspondence regarding entitlement to a temporary total disability rating on account of right knee post-surgical convalescence in September 1991 has been received, except for an appellant's brief, dated in March 1999, in which the veteran's representative listed one of the issues as being entitlement to a temporary total disability rating on account of right knee post-surgical convalescence in September 1991. An appeal consists of a timely filed Notice of Disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal (Form 1-9 or equivalent). 38 C.F.R. § 20.200 (1998). Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction (RO) mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b) (1998). The veteran was notified of the March 1992 rating decision in March 1992 and was furnished a statement of the case in April 1992. Although denominated as a supplemental statement of the case, it was a SOC with regard to the denial of a temporary total disability rating on account of right knee post-surgical convalescence in September 1991, because the veteran had not previously been furnished a SOC with regard to that issue. 38 C.F.R. § 19.31 (1998). Therefore, a timely Substantive Appeal would have had to have been filed within 60 days from the date that the SOC was mailed to the veteran or within the remainder of the 1-year period from the date of mailing of the notification of the March 1992 rating decision. Clearly the appellant's brief, dated in March 1999, was not timely. While the time limit to file a substantive appeal can be extended, the request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal. 38 C.F.R. § 20.303 (1998). She did not perfect her appeal with regard to a temporary total disability rating on account of right knee post-surgical convalescence in September 1991 within the time limit and the record does not show a request for an extension. Therefore, that issue is not for consideration by the Board. ("absent an NOD, an SOC, and a Form 1-9, the BVA [is] not required-indeed, it ha[s] no authority-to proceed to a decision"). In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997). Although the Board has disposed of the veteran's claim for a temporary total disability rating on a ground different from that of the RO, which denied the claims on the merits, the veteran has not been prejudiced by the decision. In certifying the issue to the Board on appeal on the presumption that the Board had jurisdiction over the issue, the RO accorded him greater consideration than the claim in fact warranted under the circumstances. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In August 1992, the veteran requested a hearing before the Board. A September 1992 rating decision granted service connection for mitral regurgitation. This was presumably a grant of service connection for valvular heart disease, since valvular heart disease which had been shown as nonservice connected on prior rating decisions was not listed. The 20 percent rating for the right knee disorder and the 0 percent rating for the heart disorder were continued. A September 1994 rating decision deferred consideration of service connection for post-traumatic stress disorder (PTSD) because the veteran had not submitted evidence to allow verification of a stressor in service. The evidence had been requested in April 1994. She was advised of that decision and of her appellate rights, later that month. She submitted additional statements, the content of which will be discussed below. In a February 1996 rating decision, the Denver RO again deferred consideration of service connection for PTSD to allow her to submit evidence regarding the trial by court- martial. She was advised of that decision and of her appellate rights, later that month. A March 1996 rating decision confirmed the denial of service connection for PTSD. She submitted a NOD later that month. She was furnished a statement of the case in April 1996 and submitted a substantive appeal, apparently within the time limit to perfect her appeal and withdrew a request for a hearing before a member of the Board in March 1997. The Board is legally obligated to ascertain whether there is a prior final disposition of a claim of record and, if so, whether the veteran has provided new and material evidence to reopen his claim before proceeding further. Barnett v. Brown, 8 Vet. App. 1 (1995). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a NOD with a determination by the RO within one year from the date of mailing notice of the determination to him or her. 38 C.F.R. § 20.302 (1998). The rating decisions in September 1994 and February 1996 deferred consideration of service connection for PTSD and there was a timely appeal from the March 1996 rating decision. In January 1997, the Board remanded this case for further development by the RO. During the pendency of the remand, a February 1997 rating decision denied service connection for residuals of hysterectomy and bilateral salpingo- oophorectomy. The veteran was notified of that decision later that month and has not submitted a notice of disagreement with that rating decision. Accordingly, the Board will not consider that issue. In re Fee Agreement of Cox, supra. Following completion of the directed development, the RO, in a November 1998 rating decision granted service connection for degenerative changes of the right knee which were rated 0 percent disabling, effective April 15, 1991; 10 percent disabling effective September 7, 1991 and 30 percent disabling effective June 29, 1998. The foregoing ratings were all based on limitation of extension, 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261 (1998). Fenderson v. West, 12 Vet. App. 119 (1999). The veteran has not submitted a NOD with that rating decision. Accordingly, the Board will not consider that issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (a separate NOD is required to appeal the assigned rating and/or effective date following a grant of service- connection). During the pendency of the Remand, the case was transferred to the RO in Columbia, South Carolina and, later, to the RO in Jackson, Mississippi because the veteran had moved to those states. The record shows the case to currently be in the RO in Jackson, Mississippi. Finally, the Board notes that in an October 1991 rating decision, the RO denied the veteran's claim of entitlement to service connection for a psychiatric disorder, adjustment reaction with depressed mood and panic disorder. Notice of the adverse determination was sent to the veteran, but she did not thereafter file a timely notice of disagreement. In a September 1992 VA Form 21-4138, the veteran requested service connection for "psychiatric problems [that] began in service." In October 1992 and January 1993, the RO took action to develop the claim. In a June 1993 letter to the veteran's Congressional Representative, the RO stated that the claim would be adjudicated. As noted above, in June 1993, the veteran filed a claim of service connection for PTSD. In the March 1996 rating decision noted above, the RO considered and denied the claim of entitlement to service connection for PTSD only. The Board finds that the veteran's September 1992 claim of entitlement to service connection for a psychiatric disorder other than PTSD has not been adjudicated, either on the basis of whether the requisite new and material evidence has been submitted to reopen a previously denied claim, or otherwise. This information is referred to the RO for appropriate action. The issue of entitlement to service connection for PTSD will be addressed in the REMAND section of this decision. FINDINGS OF FACT 1. There is no medical evidence of current disability from residuals of chalazion excision from both eyelids and ptosis of the right eyelid. 2. The evidence necessary for an equitable determination of the degree of disability resulting from instability resulting from right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear is of record. 3. The preponderance of the evidence establishes that there is not more than moderate instability of the right knee. 4. The currently service-connected right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear does not present an exceptional or unusual disability picture with related factors such as marked interference with employment or the need for frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of chalazion excision from both eyelids and ptosis of the right eyelid is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a disability rating in excess of 20 percent for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (1998). 3. The criteria for referral for an extraschedular rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear have not been met. 38 C.F.R. § 3.321(b)(1) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Residuals of Chalazion Excision and Ptosis of the Right Eyelid Factual Background A January 1973 entry examination found the veteran's head, face and eyes to be normal. In April 1974, she was seen for a sore lump on the mid upper right eyelid. Treatment with warm compresses had resolved the soreness and some swelling. There was a non-tender mass on the mid right upper eyelid. The impression was chalazion right upper lid. An examination later that month found the chalazion to be almost completely resolved; the cornea and conjunctiva were clear. In May 1974, the chalazion was excised. In late-May 1974, she was found to have a swollen left eyelid. In July 1974, there was a chalazion on the left upper eyelid and a beginning chalazion on the right upper eyelid; it was noted that the chalazion on the left upper eyelid had been present since May 1974. It was reported that the chalazion on the left upper eyelid was excised later that month. In October 1974, conjunctivitis was found in the right eye. A separation examination report for the first period of service is not of record. A June 1978 enlistment examination found the veteran's head, face and eyes to be normal. In March 1981, a ptosis of unknown etiology was found on the right eye. In March 1982, she was seen for a swollen right upper eye lid. The provisional diagnosis was edematous right upper lid. She was referred to the ophthalmology service where it was recorded that she had had a right eye chalazion removed in 1975. On examination, there was a 2 millimeter ptosis on the right, but full levator function and no lid lag. The impression was ptosis, right eye, etiology unknown. An August 1983 separation examination found her head, face and eyes to be normal. On an August 1984 VA examination report, the veteran's head and neck were described as essentially unremarkable. In June 1985, the veteran was hospitalized by the VA for treatment of her right knee. The admission examination, in pertinent part, found her head and eyes to be negative. In September 1988, the veteran was hospitalized by the VA because of suicidal ideation, increasing depression and hopelessness, accompanied by increasing use of alcohol. Physical examination found her head to be normal and the extraocular muscles intact. In October 1988 and April 1990, the veteran was hospitalized by the VA and underwent right knee arthroscopy and anterior cruciate ligament reconstruction. A September 1990 VA examination, in pertinent part, found that the veteran's eyelids were normal in appearance with no evidence of injury from the chalazion removal. The pertinent diagnosis was status post chalazion removal, bilateral upper lids, without residuals. At a hearing at the RO in May 1991, the veteran stated that she did not mention the drooping eyelid when examined at separation or by the VA because she didn't realize that she could mention something that happened during her first period of service. Id. at 7-8. She said that the ptosis involved both eyelids. Id. at 8. She described the chalazions as being red and inflamed and said that they protruded from the skin and impaired her vision. She said that they had been surgically removed and that the drooping eyelid occurred after the surgery. She attributed the drooping eyelid to the surgery. Id. at 9. She said that the ptosis would recur periodically, about 10 to 15 times in the prior year, and then resolve. It involved the right eye. Id. at 10. Ms F. J. testified that she had known the veteran for about 12 years and that she had observed the drooping of the right eyelid. Id. at 13. Criteria and Analysis The term "service connection" connotes many factors but basically it means that a disease or injury, resulting in disability or death, was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). The threshold question is whether the claim for service connection for residuals of chalazion excision from both eyelids and ptosis of the right eyelid is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In general, a well-grounded claim for service connection requires medical evidence of a current disability, competent evidence of a disease or injury in service and medical evidence of a nexus between the current disability and the disease or injury in service. Caluza v. Brown, 7 Vet. App. 498 (1995). "[I]n the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268, 271 (1997). A determination that there is a current disability requires medical evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). (Where the determinative issue, involves medical causation or diagnosis, competent medical evidence that the claim is possible or plausible is required for a well-grounded claim). There is no medical evidence of current disability from the chalazion excision or ptosis during service. The only medical evidence regarding disability from the chalazion excision or ptosis during service is the examiner's opinion following the September 1990 VA examination that there were no residuals from the chalazion excision or ptosis. Without medical evidence of a current disability, the claim cannot be well grounded. Caluza, 7 Vet. App. 498. There is nothing to service connect. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Although the veteran has testified that the chalazions and ptosis would recur periodically (T. at 10) and Ms F. J. testified that she had observed drooping of the veteran's eyelid, (T. at 13), there is nothing in the record to indicate that either is competent to testify as to matters requiring medical expertise, which is required to establish the presence of a current disability. Where there is a chronic disease shown as such in service, or within the presumptive period under 38 C.F.R. § 3.307 (1998), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In effect, the representative has asserted, in a September 1996 informal hearing, that there was a chronic eye disorder in service which has recurred. To show chronic disease in service there is 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 a diagnosis including the word "chronic." Since the determinative issue, identification of the disease entity, involves diagnosis, competent medical evidence is required for a well- grounded claim. Grottveit, 5 Vet. App. 91. There is no medical evidence that chronic chalazion or ptosis was present in service or that the veteran currently has chalazion or ptosis. When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit, 5 Vet. App. at 93. As noted above, the veteran has testified that ptosis would recur periodically (T. at 10) and Ms F. J. testified that she had observed drooping of the veteran's eyelid, (T. at 13). Even if the Board were to assume that the periodic drooping represents continuing symptomatology, there is no competent evidence of a current disability related to that symptomatology. At the hearing, the veteran testified that she had her eyes examined and believed that the record indicated the ptosis. T. at 10. The hearing transcript indicates that records in the veteran's possession were reviewed at the hearing and there is no mention in the record that there were any examination reports showing ptosis; none were mentioned in the hearing officer's decision. Also, in December 1992, the RO obtained what were reported to be all outpatient treatment records pertaining to the veteran from April 1989 to July 1992. Those records do not show ptosis or any residual disability from chalazion excision. Accordingly, the Board finds that the veteran has not identified any additional evidence which, if true would make her claim plausible. Beausoleil v. Brown, 8 Vet. App. 459 (1996). Right Knee Instability Factual Background During an October 1988 VA hospitalization, the veteran had a right knee anterior cruciate ligament reconstruction. In late April 1990, she underwent arthroscopy of the right knee. In May 1990, she had two screws removed from the proximal tibia. Other findings during the surgery were severe chondromalacia in the lateral compartment of the right knee, Grade II chondromalacia of the patellofemoral joint and minimal, Grade I chondromalacia of the medial compartment. In June 1990, it was reported that the arthroscopy had revealed extensive chondromalacia and degenerative changes in the medial and lateral compartments of the knee and, to a lesser extent, the patellar femoral joint. The anterior cruciate ligament appeared intact "and the knee appeared for the most part stable." The complications included pain and swelling with occasional, associated, limitation of motion. The physician said that employment restrictions were no heavy lifting and no prolonged standing, stooping, squatting or climbing stairs. A September 1990 VA examination report shows that the veteran walked with a compensating gait, bearing weight primarily on the left leg. She was wearing a brace and using a cane. There was guarding during the initial examination. There was a 15x.5 centimeter (cm.) mid-line surgical scar and a 9 cm. x 2 millimeter (mm.) surgical scar on the lateral aspect of the right thigh. Both scars were well healed. There were also multiple medial and lateral arthroscopy scars. The right knee was held in 30 degrees of flexion while she was in a supine position on the table. There was asymmetry of the right knee, but no effusion. The knee could be fully extended and flexed to 120 degrees. There was mild crepitus with flexion and medial and lateral joint line tenderness to palpation. There was some medial collateral ligament laxity at 30 degrees. The pertinent diagnosis was status post anterior cruciate ligament reconstruction, right knee with extensive chondromalacia and degenerative changes. In connection with that examination, it was recorded that the veteran had injured her right knee in 1982, during service, and was treated conservatively. In 1984, she underwent arthroscopy with debridement of the meniscus and anterior cruciate ligament. In October 1988, the total right knee anterior cruciate ligament reconstruction was performed. At the hearing at the RO in May 1991, the veteran discussed the anterior cruciate ligament reconstruction in October 1988 and the removal of the two screws in May 1990. She stated that she had continuous problems with her knee and had worn a brace, since the first surgery. T. at 3. She reported that without a brace, the knee would give out and she experienced some locking and instability. She said that her knee would go out several times a day, depending on what she was doing; it was hard for her to go up and down stairs. Id. at 4. She testified that a number of the arthroscopy scars had not healed properly. Id. at 5. She said that the scars were tender; one under the patella was extremely sensitive. Id. at 6. The knee had fairly good motion as long as she wore the brace; she was afraid to do anything strenuous without it. She had pain in her knee and ligaments popping every day. She said that at times her knee would lock whether she was sitting or standing and she would have to manipulate the knee to free it. Id. at 11. She said that locking had occurred since the anterior cruciate ligament reconstruction. Id. at 12. Ms. J. said that following surgery, the surgeon told her that the veteran's would probably deteriorate more and that future surgery was a possibility. Id. at 13. The veteran said that the swelling in the knee increased when she was active and did not go down overnight. Id. at 14. In August or September 1991, the veteran underwent right knee arthroscopy and abrasion chondroplasty of the lateral and femoral patellar compartments; the surgical report shows a date of August 3. From September 2 to the 4th, 1991, she was hospitalized by the VA and underwent right knee arthroscopic debridement; the anterior cruciate ligament was intact. It was noted that she worked in insurance. In October, she complained of joint line pain, crepitus and slight instability. The range of motion was from 10 to 90 degrees of flexion and there was pain and crepitus on motion. The anterior cruciate ligament was intact. During a November 1991 VA examination, the veteran reported that she had constant pain and that her knee stayed swollen. She said that she did not walk well and could be on her feet for only a few minutes at a time; she could not climb stairs or bend. She wore a brace everyday, during the day, and said that she felt unstable on her knee when not wearing it. She also reported constant numbness and a burning sensation in the knee area. She was concerned that she walked with a limp and had disfiguring scars and continuous swelling of the right knee. On examination, there were several well-healed incisional scars. There was generalized edema of the right knee with severe crepitus on motion of the knee. There was pain on active motion, but not to passive motion. On palpation, medially and laterally, she winced and had some guarding. Flexion was to, approximately, 90 degrees with difficulty. The patella appeared to be intact. She reported that she was a CHAMPVA clerk. In a December 1991 outpatient visit, she complained of throbbing and swelling. There were multiple scars, moderate effusion and crepitus. There was a good range of motion, no warmth and the joint was stable. An orthopedic examination found mild effusion and a range of motion was from full extension to 120 degrees of flexion; she was hesitant to extend the knee. There was right lateral joint line tenderness. During a July 1992 VA examination, the veteran reported that she had almost daily locking and swelling of the knee. She had moderate swelling on examination and tenderness over the medial and lateral joint lines. All ligaments appeared to be intact. She could flex her knee to 120 degrees and lacked 5 degrees of full extension. An X-ray revealed some degenerative joint disease. During a VA hospitalization in July and August 1993, it was noted that her last right knee surgery had been in 1988. The report of an examination made during a June 1994 VA hospitalization shows a long vertical well-healed scar on the midline of the right knee. There was a crepitus with motion but no tenderness to palpation. During a June 1998 VA examination, the veteran reported that her knee continued to hurt and swell. She said that she had difficulty walking up and down stairs and could not walk for any length of distance without using a brace. She had mild genu valgus on the left side and moderate genu valgus on the right side. She had an antalgic gait and the right knee appeared to be moving freely, indicating some instability. She was not able to walk on her heels and toes on the right and could not squat on the floor. After sitting on the examining table, she became uncomfortable with right knee pain and needed support. The range of motion of the right knee was from 20 to 140 degrees of flexion. On examination, the right knee appeared to be swollen with some effusion in the medial and lateral prepatellar area. There was a surgical scar across the knee, linearly, and on the outer aspect of the distal thigh. There was severe tenderness around the patella, mild laxity of the anterior cruciate ligament and moderate medial lateral instability. The right knee was obviously swollen; it was 11/2 times larger in circumference than the left. The calf muscles were symmetrical and equal. There was some limitation of right ankle dorsiflexion which, the veteran said, was because her right knee hurt. She was able to get off of the examining table, but had to support her right lower extremity because of pain and change of position. After attempting to walk, she had mild to moderate valgus deformity of the right knee. She was not wearing a brace or using a cane and her balance appeared to be fair, in spite of an occasionally wobbling knee. An X-ray revealed moderate degenerative changes. The diagnostic impressions were severe degenerative joint disease of the right knee and status-post anterior cruciate ligament reconstruction surgery due to service-connected right knee injury. The examiner said that the right knee problems and surgeries were caused by the right knee injury during service. The September 1990 and July 1992 VA examination reports show that the veteran was employed by the VA. In October 1992, she became so depressed that she quit going to work. During the VA hospitalization in July and August 1993, it was recorded that she did computer work. She had been employed by the VA but became depressed and began using alcohol and drugs. During a VA hospitalization in June 1994, it was recorded that she had been unemployed for 1 1/2 years; the cause was not reported. During a VA hospitalization in January and February 1996, it was reported that she had been suspended from her job in December 1995, because of a conflict with another employee and had injured her back while lifting a patient in November 1995. At the end of the hospitalization, it was noted that she had been cleared by the Workers Compensation doctor to return to work, but she had some reservations about returning to work because of conflicts that had occurred in the past. The examiner said that her employability status should be continuously assessed as she progressed through outpatient therapy. During the June 1998 VA examination, it was recorded that she had not been able to "maintain her employment due to the right knee pain and some other personality problems." Criteria and Analysis An allegation of increased disability from a service- connected disorder generally establishes a well- grounded claim for an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The VA has obtained VA medical records and has had the veteran examined. The Board finds that the evidence of record is adequate to determine the degree of disability produced by the service-connected right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear and finds that the VA has fulfilled its duty to assist the veteran in the development of the facts pertinent to his claim for an increased evaluation for that disorder. 38 U.S.C.A. § 5107(a). The Board also finds that the development directed in the remand with regard to right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are intended to compensate for the average impairment of earning capacity resulting from service-connected disabilities, insofar as can practicably be determined. They are primarily established by comparing objective examination findings with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). Recurrent subluxation or lateral instability of the knee is rated 10 percent disabling when slight, 20 percent disabling when moderate and 30 percent disabling when severe. 38 C.F.R. § 4.71(a), Diagnostic Code 5257. The veteran has disabling limitation of motion and instability of the knee and separate disability ratings for each. VAOPGCPREC 23-97 (O.G.C. Prec. 23-97) (Jul. 1, 1997) and VAOPGCPREC 9-98 (O.G.C. Prec. 9-98) (Aug. 14, 1998). As noted above, the Board is not addressing the assigned rating based on limitation of motion. Although review of the recorded history of a service- connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2 (1998), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A longitudinal review of the record shows that the veteran has had a number of surgical procedures on her right knee. The June 1998 VA examination found moderate "medial lateral instability." She has testified that she wears a brace because the knee feels unstable without one. T. at 11. While she is competent to testify regarding her sensations, classifying the severity of any instability requires a medical opinion. As such, lay evidence will not serve to determine the degree of instability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Although Grottveit discussed the evidence necessary for a well-grounded claim, the Board believes that the principle is sufficiently broad to apply in this case. The veteran has not submitted any competent evidence that there is more than moderate instability of the right knee. Accordingly, the Board finds that the preponderance of the evidence establishes that there is not more than moderate instability of the right knee. A higher rating is not warranted because of pain in the right knee. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (sections 4.40 and 4.45, with respect to pain, are not applicable to ratings under DC 5257 because DC 5257 is not predicated on loss of range of motion). The Board is not reviewing the rating assigned for limitation of motion. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the VA Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these 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)(1). The Board has considered whether referral for an extraschedular rating is warranted for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear and decided that it is not. It is neither contended nor shown that the right knee disorder has required recent frequent periods of hospitalization, or, for that matter, any hospitalization at all since September 1991. She has not presented any corroborative evidence that the right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear markedly interferes with employment or, otherwise, creates an unusual disability picture. Although the right knee function is limited, it appears that she was able to work following the anterior cruciate ligament reconstruction surgery and subsequent arthroscopic treatment. Although she was not working at the time of the June 1998 examination, the evidence of record does not show that it is because of the right knee disorder. ORDER Service connection for residuals of chalazion excision from both eyelids and ptosis of the right eyelid is denied. Entitlement to an increased rating for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear is denied. REMAND In the substantive appeal from the March 1989 rating decision, submitted in December 1989, the veteran disagreed with the effective date of termination of the post-surgical convalescence total rating at the end of February 1989. The Board finds this to be a timely NOD. 38 C.F.R. §§ 20.201, 20.302 (1998). The record does not show that she has been furnished a SOC with regard to that issue. In an October 1990 rating decision, it was noted that the veteran had undergone arthroscopic examination of the right knee in May. That rating decision granted a temporary total (100 percent) disability rating on account of post-surgical convalescence from late-April through June 1990. In a letter submitted later that month, the veteran said that she wished to review her file with regard to pending claims, including a temporary 100 percent due to surgery on her right knee in May. In a November 1990 letter, the veteran said that she wished to appeal the decision on her claim, presumably including the postsurgical convalescence termination date, although that was not listed as an issue at the subsequent hearing. The Board finds that the November 1990 letter is a valid notice of disagreement. 38 C.F.R. § 20.201 (1998). The record does not show that she has been furnished a SOC with regard to that issue. At a hearing at the RO in May 1991, the hearing officer initially stated that one of the issues was whether there was new and material evidence to establish entitlement to service connection for valvular heart disease. After an off-the record discussion, it was reported that the veteran was seeking an increased rating for systolic murmur with premature ventricular contractions. A March 1992 rating decision denied an increased rating for the right knee disorder, thoracic muscle strain and systolic murmur with premature ventricular contractions. In a letter submitted later that month, the veteran said that she wished to appeal the decision. The letter was a timely notice of disagreement. 38 C.F.R. § 20.201. The record does not show that she has been furnished a SOC with regard to that issue. When there has been an initial RO adjudication of a claim and a NOD has been filed as to its denial, thereby initiating the appellate process, the claimant is entitled to a SOC, and the RO's failure to issue an SOC is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. 398 at 408-10 (1995). Pursuant to the provisions of 38 C.F.R. § 19.9(a) (1998), "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision," the Board is required to remand the case to the agency of original jurisdiction for the necessary action. (Emphasis added). The veteran was furnished a SOC with regard to the denial of service connection for valvular heart disease, but not with regard to the issues of increased ratings for systolic murmur with premature ventricular contractions and thoracic muscle strain or regarding the February 1989 and June 1990 postsurgical convalescence termination dates. Accordingly, unless she chooses to withdraw her NODs, she must be furnished a SOC with regard to all open issues except for service connection for PTSD for which she has been furnished a SOC. The veteran has testified that she has tender scars from the surgery. T. at 5-6. The RO has not considered the issue of whether the veteran is entitled to a separate rating for the scar. Esteban v. Brown, 6 Vet. App. 259 (1994). (Disabilities are to be rated separately unless they constitute the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14 (1998). The "critical element is that none of the symptomatology for any one condition is duplicative of or overlapping with the symptomatology of the other condition). The Board may not initially consider that matter. Bernard v. Brown, 4 Vet. App. 384 (1993). In April 1993, the veteran was hospitalized by the VA because of suicidal and homicidal ideation and substance abuse. It was recorded that she had begun the use of alcohol and cocaine after she had been raped in service, she experienced nightmares and became unable to sleep or concentrate. She became pregnant and had an abortion. After that, her substance use drastically increased. The diagnoses were major depression, PTSD and polysubstance abuse. The examiner reported that the veteran had been raped, underwent an abortion after which she was shown the fetus, and had a subsequent sexual traumatic event when another soldier attempted to force her to do sexual favors. The examiner said that the veteran persistently reexperienced "this event" and had recurrent and intrusive recollections of "the event." She had nightmares of the fetus and, at times, thought she was being raped during sex. The discharge diagnoses following a VA hospitalization in July and August 1993 included PTSD. It was recorded that she had been violently raped in 1975 and then harassed. She did not initially report the rape or discuss it at the time, because her assailant had threatened to kill her if she did so. She became pregnant and had an abortion; she said that she was shown the fetus. She first sought psychiatric treatment following the abortion; she became depressed at the time. She took an overdose of prescribed medication in a suicide attempt. She was hospitalized on the psychiatric ward for a week but received no medication or therapy. Following the rape, she began using alcohol to calm her so she could sleep and later began using marijuana. In April 1994, P. A. said that the veteran, who was a close friend, had told her about the sexual assault in service, the pregnancy and the abortion. In April 1994, the veteran was examined by two VA psychiatrists. During both examinations, she recounted the circumstances of the assault in service and subsequent abortion. She told one examiner (Dr. D. G.) that she had told two friends, Phyllis and Bobby Jean, seven or eight years before and that several months after the assault, she discovered that she was pregnant. D. G. said that PTSD was first referred to in treatment records from Ft. Lewis, Washington made in May 1982. She told the other examiner (Dr. C. M. D.) that approximately a month after the abortion, she overdosed on Valium; after being treated in the emergency room, she had outpatient treatment for three months. Both examiners agreed that there were two distinct diagnoses that were significantly intertwined. Dr. D. said that there was a major affective and/or psychotic disorder which had been variably diagnosed as bipolar disorder with psychotic features and schizoaffective schizophrenia. Dr. G. diagnosed schizoaffective disorder and Dr. D. diagnosed bipolar disorder. Dr. D. said that either would be an appropriate diagnosis. In either case, it was a chronic psychotic diagnosis which included auditory hallucinations and significant mood swings. The veteran also had a significant intertwined PTSD, secondary to a presumed rape. The diagnoses were schizoaffective disorder, bipolar affective disorder with psychotic features and PTSD. In May 1994, a VA social worker reported that the veteran had first been treated in the mental health clinic in October 1988 for alcohol abuse, adjustment reaction with depressed mood and panic disorder. In the spring of 1993, after being hospitalized for substance abuse and major depression, she was referred to an inpatient PTSD program, but was not stable enough to benefit from it. It was reported that the veteran had major depression with intrusive thoughts and auditory hallucinations related to the sexual assault and subsequent abortion, low self-esteem, feelings of worthlessness and a severe sense of guilt and condemnation related to the abortion. An attached intake summary, made in September 1993, shows an episode of sexual harassment in 1980, in addition to the sexual assault and abortion. It was recorded that she had been hospitalized twice during service, in 1975 and 1979. The pertinent diagnoses were rule out schizoaffective disorder and PTSD. She was referred for psychological testing which was done in June 1994. The sexual assault, pregnancy and abortion were recorded. After performing various tests and interviewing the veteran, the psychologist concluded that the veteran's past traumas had played a part in her current psychological state; it seemed clear that her case was a characterological adjustment to her traumatic experiences. The psychologist said that characterologically the veteran might be described as someone with schizoid, avoidant and passive-aggressive traits to cope with her fear of others and difficulty modulating her emotions. During a June 1994 VA hospitalization, it was reported that the veteran had significant PTSD symptoms from the rape in 1975 and subsequent abortion and from watching a friend of her mother beat her mother's boyfriend to death, while she was on leave in 1979. The Board finds that the claim for service connection for PTSD is well grounded. There is medical evidence of a current disability in the form of several diagnoses of PTSD, evidence that the claimed inservice stressor actually occurred in the form of the veteran's testimony under oath. Several of the examiners appeared to relate the PTSD to the attack in service. In the Board's opinion, this establishes a link, by medical evidence, between the current symptomatology and the claimed inservice stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). Once there is a well-grounded claim for service connection for PTSD, the VA has a duty to assist the veteran in obtaining all pertinent facts. 38 U.S.C.A. § 5107(a). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant applies, unless Congress provided otherwise or permitted the Secretary to do so and the Secretary has done so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In February 1996, the criteria for developing PTSD claims based on personal assault were revised. in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, (M21-1) 5.14(c) (Feb. 20, 1996). These criteria are a substantially expanded version of former MANUAL M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). The United States Court of Veterans Appeals (as of March 1, 1999, United States Court of Appeals for Veterans Claims) (Court) has held that former 7.46 and current 5.14(c) are substantive rules that are the equivalent of VA regulations. See YR v. West, 11 Vet.App. 393 (1998); Cohen, 10 Vet.App. 128. Therefore, the version of M21-1 more favorable to the appellant applies, since it does not appear that there has been any direction to use a particular version. Karnas v. Derwinski, 1 Vet. App. at 313, Marcoux v. Brown, 9 Vet. App. 289. Because the veteran has claimed personal assault as the inservice stressor, the RO must undertake development of the claim for service connection for PTSD in accordance with the provisions of M21-1 more favorable to her, presumably Part III, 5. 14c. Patton v. West, 12 Vet. App. 272 (1999). Also, the Board observes that there is evidence that she witnessed the murder of a close personal friend by a family friend. To comply with the duty to assist, regulatory requirements and requirements of due process of law, this case is REMANDED for the following additional action: 1. The veteran, through her representative, should be requested to specify the benefits she is seeking. She should be specifically requested to state whether she wishes to appeal the February 1989 and June 1990 post-surgical convalescence termination dates and the assigned ratings for systolic murmur with premature ventricular contractions and thoracic muscle strain. If she does not wish to appeal any or all of the foregoing issues, she should be requested, through her representative, to withdraw her notice of disagreement with regard to any issue she does not wish to appeal. Note, the withdrawal must be by the veteran or with her express, written consent. 38 C.F.R. § 20.204 (1998). 2. If the veteran indicates that she wishes to appeal any or all of the foregoing issues, the RO should follow the procedures set forth in 38 C.F.R. § 19.26 (1998) and she and her representative should be furnished an appropriate SOC complying with the requirements of 38 C.F.R. § 19.29 (1998). 3. If the veteran indicates that she wishes to appeal the February 1989 and June 1990 post-surgical convalescence termination dates, the claims file should be referred to a surgeon for review and expression of an opinion as to when the veteran had fully convalesced from the right knee surgery in October 1988 and in April 1990. 4. The veteran should be examined to determine if any of the right knee surgical scars are poorly nourished or are objectively tender and painful. 5. The RO should determine if the veteran is claiming any stressors, other than the rape and abortion. Also, the RO must undertake development of the claim for service connection for PTSD where a personal assault is the inservice stressor, in accordance with the provisions of VA Adjudication Procedure Manual, M21-1, Part III, 5. 14c. as more fully described therein, and more fully referenced in the body of this remand. 6. Since the stressors are not related to combat, after the development is completed to the extent possible, the RO should determine as to each claimed stressor whether there is "credible supporting evidence from any source" (apart from the appellant's own unsubstantiated evidentiary assertions or the conclusions of post-service medical providers) to establish the existence of an event claimed as a stressor. In addressing this matter, the RO should also address credibility issues, if any, raised by the record. If the RO determines that there is no verified event claimed as a stressor, no further action is required as to the claim for service connection for PTSD. 7. If there is corroboration of a stressor, the veteran should then be given a VA psychiatric examination to determine the relationship between the verified stressor and any current psychiatric disorder. The RO must specify for the physician the stressor(s) it has determined are corroborated by the evidence of record and instruct the examiner that only those events may be considered for the purpose of determining whether exposure to a stressor in service has resulted in current psychiatric symptoms, and whether the diagnostic criteria to support a diagnosis of PTSD based upon events in service otherwise have been satisfied. The examination should include all appropriate tests and evaluations, including any warranted psychological testing. If a diagnosis of PTSD is made, the examiner should specify: (1) Whether any confirmed in-service stressors were sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the inservice stressors. The examination report should include the complete rationale for all opinions expressed. 8. The RO should review the examination reports to determine that they comply with the directives of this REMAND. If not, any report that does not comply with the directives of this REMAND should be returned to the examiner for corrective action. 9. After the foregoing has been accomplished to the extent possible, the RO should readjudicate the veteran's claim for service connection for PTSD and whether she is entitled to a separate rating for right knee surgical scars. In considering the claim for service connection for PTSD the RO should determine which version of M21-1 is more favorable to her, and consider that version as well as Cohen v. Brown, 10 Vet. App. 128 and Patton v. West, 12 Vet. App. 272. The RO should consider the requirement for a disability in determining whether she is entitled to a separate rating for right knee surgical scars. VAOPGCPREC 23-97 (O.G.C. Prec. 23-97) (Jul. 1, 1997) and VAOPGCPREC 9-98 (O.G.C. Prec. 9-98) (Aug. 14, 1998). 9. If the veteran submits a substantive appeal, the February 1989 and June 1990 termination dates for post-surgical convalescence and any additional issues the veteran wishes to appeal should be reevaluated. If the benefits sought are not granted in full, or to the veteran's satisfaction, she and her representative should be furnished a supplemental statement of the case and allowed the regulatory time to respond. 38 C.F.R. § 20.302(c). Thereafter, if in order, the case should be returned to the Board. If the veteran submits a substantive appeal with regard to the assigned ratings for systolic murmur with premature ventricular contractions, thoracic muscle strain and/or the February 1989 and/or June 1990 post-surgical convalescence termination date, those matters should also be returned in accordance with the applicable procedures. By this REMAND, the Board intimates no opinion, factual or legal, regarding the outcome warranted on the issues of entitlement to increased ratings for right knee chondromalacia with medial collateral ligament injury and lateral meniscus tear, systolic murmur with premature ventricular contractions, thoracic muscle strain and/or the February 1989 June 1990 post-surgical convalescence termination dates pending completion of the requested development. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals 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. 1998) (Historical and Statutory Notes). In addition, Vb.'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. MICHAEL A. PAPPAS Acting Member, Board of Veterans' Appeals