BVA9505774 DOCKET NO. 93-10 104 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for contracture of the hands. 2. Entitlement to an increased (compensable) rating for a scar of the right hand. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from November 1963 to November 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision from the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the RO granted service connection for a scar due to excision of a wart, foreign body, cyst, or other subcutaneous mass, from the right hand (right hand scar), and assigned a noncompensable evaluation. In the same rating decision, the RO denied, among other things, service connection for Dupuytren's contracture of the right hand and left hand (bilateral hand disorder). A hearing was held in July 1993 before Joaquin Aguayo-Pereles, who is the member of the Board rendering this decision and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The case was remanded by the Board for further development in October 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting a compensable rating for the right hand scar, and for not granting service connection for contracture of the hands. Specifically, the veteran asserts that his right hand is stiff and drawn and that he has difficulty using the right hand without feeling a hurting and burning sensation. He contends that he has developed the same condition in his left hand. 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 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for contracture of the hands, but supports a 10 percent rating, and not in excess thereof, for the service-connected right hand scar. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's current bilateral hand disorder had its onset years after service and is not the result of disease or injury during service. 3. The veteran does not have a bilateral hand disorder as a result of his active military service. 4. The veteran's service-connected right hand scar is principally manifested by a longitudinal mass of scar tissue which was painful to touch on recent objective examination but is not productive of loss of function of the hand. 5. The veteran's disability does not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. A bilateral hand disorder was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The schedular criteria for a 10 percent rating, and not in excess thereof, for a scar due to excision of a wart, foreign body, cyst, or other subcutaneous mass, from the right hand have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Part 4, including Diagnostic Codes 7803, 7804, 7805 (1994). 3. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to Service Connection for Bilateral Hand Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1994). Service medical records indicate that the veteran had a subcutaneous mass removed from his right palm in August 1965. The examiner assessed that it was a wart or foreign body. On the separation examination report dated later in August 1965, the examiner reported that the veteran's upper extremities were normal and that the veteran had a foreign body (cyst) removed from his right hand during service. Many years passed without any diagnosis of a right hand disorder being recorded. Under 38 C.F.R. § 3.303(d) (1994), service connection may be granted for any disease diagnosed after discharge, when all evidence establishes that the disease was incurred in service. In March 1975 the veteran was admitted to a private hospital with a chief complaint of hardness of the left palm since about 7 or 8 years duration. He stated that he had difficulty of extension of the left middle finger. After physical examination, the examiner reported that the veteran had contracture of both hands. The veteran was admitted for excision of Dupuytren's contracture of the left hand. In 1983 the veteran was admitted to the hospital for right and left hand disorders. The examiner reported that the left hand revealed Dupuytren's contracture of the left and right hands. At that time the veteran underwent fasciotomy of the left hand. The veteran filed a claim for compensation for his bilateral hand disorder in September 1991. In November 1991 he was accorded a VA examination. The veteran complained of right and left hand scars and recurrent growths. The examiner reported that the veteran had a Dupuytren's contracture on the right hand operated on in service. The veteran complained that he could not straighten the 4th and 5th fingers of the right hand. Examination of the right hand revealed that the 4th and 5th fingers of the right hand lacked approximately 20 percent of straightening. The examiner noted that there was thickening of the flexor tendon located between the 4th and 5th fingers. Examination of the left hand revealed 2 sets of scars in the palm measuring 3 inches and 2 inches. The examiner reported that there was 1 inch of thickened tendon on the anterior portion of the left thumb between the interphalangeal joint and the CP joint. He noted that the veteran could make a fist with both hands, that straightening was normal on the left hand but slightly limited on the right. The final diagnoses included Dupuytren contracture of the right palm, with residual loss of motion; and Dupuytren contracture of the left hand with tendinitis. Based upon the service medical record findings and private and VA examination reports, the RO, in a June 1992 rating decision denied service connection for, among other things, contracture of the hands. The veteran testified at a Travel Board hearing in July 1993. In October 1993 the case was remanded by the Board for further development, including VA outpatient and private medical records and a VA orthopedic examination to include an opinion as to whether the veteran's hand disorder was related to the inservice surgery of the right hand. The veteran submitted VA outpatient reports dated between January 1993 and January 1994 reflecting treatment for contracture of right and left hands. On a February 1994 VA examination conducted in accordance with the Board's remand, the veteran complained of right and left hand stiffness with hurting and burning sensations. The examiner reported that both hands demonstrated full active and passive range of motion around the radial carpal joints. He noted that the right hand had 15 degrees flexion contracture at the metacarpal phalangeal joint of both ring and little fingers. Examination of the right hand revealed firm, longitudinal, and painful mass of scar tissue in the palm along the ulnar aspect radiating to the base of the ring and little fingers. Other fingers of the right hand revealed full active and passive range of motion. The examiner noted that the right hand had full flexion, no instability, and no intrinsic tightness. On examination of the left hand he reported full motion of the metacarpal and interphalangeal joints. He noted that there was scar tissue present which caused no fixed contracture. He indicated that the left hand had full adduction, abduction, flexion and extension, and no evidence of intrinsic tightness or sensory deficit. The examiner's diagnosis was bilateral Dupuytren's contracture with postoperative excision on the left hand and previous surgery on the right. He commented that Dupuytren's contracture of the right hand was not, in any way, caused by surgery the veteran had in service. He noted that Dupuytren's contracture was a systemic disorder which was caused by abnormal scar tissue and was not in any way caused by the surgery of the right hand that the veteran had in service. The examiner added that the inservice surgery did not cause this problem, but also did not solve it. On an April 1994 private medical report, Dr. S. S. Lee, M.D. noted that the veteran had surgery for Dupuytren's contracture of the right hand while in service. He also noted that the veteran currently had severe Dupuytren contracture involving the right ring finger which would probably need surgery to correct. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As previously noted, the veteran maintains that his bilateral hand disorder had its onset in service. While the evidence demonstrates that the veteran had a wart or foreign body removed from his right hand in service, it does not appear that the condition was chronic. In fact, it appears that the veteran's inservice right hand complaints were transitory in nature; that they were adequately treated; and that they resolved without any residual disability, other than the residual scar for which he is already service connected. Moreover, although the separation examination report noted that the veteran had a foreign body (cyst) removed from his right hand, it also listed the veteran's upper extremities as normal. There were no complaints or medical findings suggestive of Dupuytren's contracture of the hands until many years after service. The first indication of a hand disorder was not until September 1991 when the veteran first filed for VA compensation. In October 1991 the veteran submitted private medical reports dated between 1975 and 1983 which revealed that the veteran received treatment for contracture of the left hand. The Board also notes that when it remanded the case for further development, it specifically asked the medical doctor to express an opinion as to whether the veteran's contracture of the hands were etiologically related to the inservice surgery of the right hand. As noted, the examiner commented that Dupuytren's contracture of the right hand was not, in any way, caused by surgery the veteran had in service. He noted that Dupuytren's contracture was a systemic disorder which was caused by abnormal scar tissue. The examiner noted that the inservice surgery did not cause this problem, but also did not solve it. The veteran's private physician reported that the veteran had Dupuytren's contracture of the right hand in service. That opinion is not corroborated by the medical records contemporaneous with the treatment the veteran received in service. The service medical records made no reference to Dupuytren's contracture and the veteran's private doctor has failed to provide any rationale for his opinion. In any event, the Board finds greater weight on the February 1994 VA examiner's conclusion that the veteran's Dupuytren's contracture of the right hand was not, in any way, caused by surgery the veteran had in service. This opinion was provided on a thorough examination of the veteran and a review of the entire evidence of record, including the service medical records. The Board notes that there is no credible medical opinion of record which establishes a direct relationship between the inservice right hand surgery to remove a wart or foreign body and subsequently diagnosed Dupuytren's contracture of the hands. Without such evidence the Board finds no medical basis to assume that Dupuytren's contracture of the hands first noted almost 10 years after service had its onset during service. The preponderance of the evidence convinces the Board that service connection for contracture of the hands is not warranted. II. Increased (Compensable) Rating for a Scar of the Right Hand Service medical records indicate that the veteran underwent right hand surgery in August 1965. The separation examination report noted a 1 inch scar on the right hand. Following service the veteran was accorded a VA examination in November 1991. The examiner reported that the veteran had a scar from surgery approximately 3 1/2 inches in length. Based upon the service medical records and the VA examination report, the RO, in a June 1992 rating decision granted service connection for a scar on the right hand and assigned a noncompensable rating under Diagnostic Code 7805 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.118 (1994). That rating is still in effect today. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Scars are rated under Diagnostic Codes 7803, 7804, and 7805. A compensable rating under Diagnostic Code 7805 contemplates scars which result in limitation of function of the part affected. It is noted that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1994). On the February 1994 VA orthopedic examination, the veteran complained of right hand pain, including a burning sensation. On examination of the right hand the examiner reported that there was a firm, longitudinal mass of scar tissue in the palm along the ulnar aspect radiating to the base of the ring and little fingers. He noted that the scar was painful to touch. He also reported that the veteran had full flexion of the right hand at the metacarpal phalangeal joints and interphalangeal joints bilateral. The veteran is assigned noncompensable evaluation for a scar of the right hand. The law provides that a 10 percent evaluation is warranted for superficial scars which are poorly nourished with repeated ulceration. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7803 (1994). Superficial scars which are tender and painful on objective demonstration are assigned a 10 percent rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7804 (1994). Other scars are rated on limitation of function of the part affected. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7805 (1994). It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1993). In addition, where there is question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (1994). In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In applying the law to the existing facts, the Board finds that the veteran's scar of the right hand is not poorly nourished with repeated ulceration and does not affect the function of the hand. Indeed, recent VA examinations while revealing a scar on the right hand, revealed that the scar was productive of no loss of function of the right hand. However, the VA examiner who conducted the February 1994 orthopedic examination reported that there was a firm longitudinal mass of scar tissue in the palm of the right hand in the area of an old surgical wound that was painful to touch. As previously noted, superficial scars which are tender and painful on objective demonstration are assigned a 10 percent rating under Diagnostic Code 7804. These medical findings, along with the veteran's credible history of right hand pain, support the veteran's claim for an increased rating to 10 percent, but not higher. A higher evaluation under Codes 5307, 5308, and 5309 are not warranted as there is not muscle damage in the right hand such as to warrant a 20 percent evaluation. The Board, after considering the service medical records and the reported findings of the VA examiners, in light of the veteran's contentions, finds that the evidence presents a disability picture that more nearly approximates the higher rating of 10 percent under Diagnostic Code 7804. In any event by virtue of the benefit of the doubt doctrine, the law dictates that the veteran should win. Therefore, the Board finds that the veteran should be granted an increased (compensable) rating. Accordingly, an increased rating for a right hand scar not higher than 10 percent is warranted. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present 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) (1994). ORDER 1. Entitlement to service connection for contracture of the hands is denied. 2. Entitlement to an increased evaluation of 10 percent, but not higher, for a scar of the right hand is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals 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.