BVA9507668 DOCKET NO. 93-07 183 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an extension, beyond May 31, 1991, of a temporary total (100 percent) disability rating for, status post operative, traumatic arthritis of the right thumb. ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from June 1981 to October 1981, and from February 1982 to February 1984. This appeal to the Board of Veterans' Appeals (Board) arises from the August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied extension of a total rating for convalescence, pursuant to 38 C.F.R. § 4.30 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a total rating for convalescence past May 1991. He asserts that he was incapacitated by residuals of his April 1991 right thumb surgery through at least August 1, 1991. He states that following his surgery he was unable to use his right hand prior to August 1991. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims folder. Based on our review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an extension of the veteran's total rating for convalescence is not warranted by the evidence of record. FINDINGS OF FACT 1. During VA hospitalization from April 12, to April 15, 1991, the veteran underwent a trapeziectomy for trapeziometacarpal arthritis of the right hand; he was subsequently granted a temporary total rating based upon convalescence from April 12 to May 31, 1991, the period from hospital admission through one month from the first day of the month following hospital discharge. 2. The evidence does not demonstrate that the veteran's postoperative residuals following his April 1991 hand surgery were such that he required more than one month of convalescence. CONCLUSION OF LAW The applicable criteria for an extension beyond May 31, 1991, of a temporary total rating for traumatic arthritis, based upon convalescence, have not been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 4.30 (a), (b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded; that is, the claim is plausible. Additionally, there is no indication that there are unobtained records which are available and which would aid a decision in this case. Accordingly, we conclude that the record is complete and that there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual Background A March 1984 rating decision granted service connection for arthritis of the right thumb, evaluated as zero percent disabling. VA medical center (VAMC) records indicate that the veteran was hospitalized in April 1991 with a history of pain, tenderness and reduced range of motion in the right wrist due to an old trapezium fracture. Examination on admission disclosed edema in the thenar aspect of the right palm with positive sensitivity to pinprick, but decreased range of motion of the metacarpal joint. Right thumb strength was described as 5+. The veteran underwent trapeziectomy. X-ray disclosed a complete excision of the trapezium and good preservation of the length of the metacarpal. X-ray also showed a k-wire affixed the proximal first metacarpal to the proximal second metacarpal. A short arm thumb, spica cast was applied following surgery. The veteran tolerated the procedure well and was discharged to home. Of record is the April 1991 statement of Eric Ashby, M.D. a resident, in Hand Surgery, at the VAMC where the veteran's surgery was performed. Dr. Ashby's statement reflects that the veteran will be disabled and unable to use his hand fully for ten weeks following his hand surgery. May 1991 outpatient records indicate that the veteran was seen in mid May for a complaint that his cast was too tight, and that a piece of metal was protruding through the back of his hand. Slight metacarpal phalangeal swelling was noted. The veteran was referred to cast "tech." The VA examiner noted that the veteran had been recast five days earlier because his cast was too loose. X-rays conducted one day later revealed a metallic pin projecting dorsally. May 1991 VA treatment records indicate that five weeks after surgery the cast was removed from the veteran's arm. The record reflects that a pin had been removed one week, earlier. The VA examiner noted that X-rays indicated it was healing well, with good position. No heavy lifting was advised. Subsequently, X-rays conducted in May 1991 disclosed postoperative changes, lytic destruction at the base of the first metacarpal with cortical destruction suggestive of osteomyelitis. An undated discharge summary dictated in December 1991 reported questionable osteomyelitis not held up on clinical evaluation. The report of a May 1991 orthopedic consultation indicates that the veteran was referred for physical therapy to restore the full range of right thumb motion which had been diminished by wearing a cast. June 1991 outpatient records describe the veteran's wound as healing well. In addition, the veteran's physician, Dr. Carol Redford, noted that he should already have been referred for physical therapy as directed in the May 1991 orthopedic consultation report. June 1991 clinical findings indicated no swelling of the right wrist. Tenderness was noted in the area of the first carpal joint and trapezius area. Right wrist range of motion was flexion 60 degrees, and extension 70 degrees, compared to flexion 80 degrees, and extension 80 degrees in the left wrist. Vocational Rehabilitation progress notes dated in July 1991 reflect the veteran's statement that he could not work full time because he still had a metal rod in his right hand. The vocational rehabilitation specialist noted that he did not see that the veteran had any problem looking for, or finding work, but believed that retraining might be in order. July 1991 progress notes indicate that the veteran underwent physical therapy during the month. His hand continued to heal well, with mild pain on extension. He reportedly went bowling, but was advised against it until cleared on orthopedic follow-up. Also of record is a prescription form signed by Carol Redford, M.D. and dated in August 1991 which contains the notation that the veteran is cleared for competitive employment. An August 1991 rating decision granted a temporary total rating for convalescence effective April 12, 1991 through May 31, 1991. The Board notes that it was the veteran's sworn testimony at his January 1993 personal hearing that the cast was removed from his hand due to swelling, about six weeks to two months after surgery. A metal pin implanted in his hand during surgery reportedly had worked it's way out through the back of his hand. According to the veteran's testimony, after the pin was removed, the two severed half casts were replaced on his arm and held together with ace bandages, for an undetermined period of time. He also stated that after the cast was removed he had minimal movement in his hand due to muscle atrophy. He reported that he picked up a bowling ball, but was unable to hold it. He expressed his belief that if he had used his right hand prior to August 1991, he would have been viewed as noncompliant and removed from the VA domiciliary where he lived. Entitlement to Extension of a Total Rating for Convalescence A total disability rating is assigned, without regard to the provisions of the rating schedule, effective the date of hospital admission or outpatient treatment for a period of 1, 2, or 3 months for the first day of the month following hospital discharge or release from outpatient treatment, where it is established by report at hospital discharge or release from outpatient treatment that treatment of a service connected disability resulted in one of the following: (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited), (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a) (1994). Extensions of 1, 2, or 3 months may be granted under the previously stated criteria. 38 C.F.R. § 4.30 (b)(1) (1994). Clearly the regulatory provisions for a total rating for convalescence contemplate a significant level of incapacity, which does include all of the decreasing levels of disability which may be present over the course of post-operative rehabilitation, before full facility returns to an affected extremity. Contrary to the veteran's belief, convalescence for purposes of a total disability rating does not include the broad range of decreasing disability levels encompassed by Dr. Ashby's statement that the veteran would not have full use of his hand until ten weeks after surgery. Similarly, Dr. Redford's August 1991 statement that the veteran was then cleared for competitive employment does not warrant a conclusion that he was significantly disabled requiring a total rating for convalescence until the time of her statement. During the period for which he was granted a total rating for convalescence the veteran's right hand was immobilized by a cast. The record reflects that subsequent to May 1991 his hand was no longer therapeutically immobilized. He was capable of participating in physical therapy. Although we do not doubt the sincerity of the veteran's assertions, the objective evidence of record does not support his recollection of the length of time during which his arm was confined in a cast. The record demonstrates that the veteran's postoperative recovery progressed smoothly and he participated in physical therapy in July 1991. Despite the veteran's contention that he was prohibited from using his hand prior to August 1991, the only level of activity shown by record to have been prohibited is heavy lifting, including bowling. It was the opinion of the vocational rehabilitation specialist who met with the veteran in July 1991, that the only impediment to his finding work was a lack of training. The Board finds no evidence of record to show that post operative residuals of hand surgery necessitated a period of convalescence, beyond May 31, 1991. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the preponderance of the evidence is against the veteran’s claim for extension of a total rating for convalescence. Accordingly, 38 U.S.C.A. § 5107(b) is not for application. The Board concludes that an extension beyond May 31, 1991, for a temporary total rating for traumatic arthritis of the right thumb, based upon post-hospitalization convalescence is not warranted. ORDER Extension of a temporary total rating for convalescence beyond May 31, 1991 is denied. S. L. COHN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.