BVA9502337 DOCKET NO. 93-08 806 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for erosive arthritis of the right hand, currently evaluated as 10 percent disabling. 2. Entitlement to an extension of a temporary total rating under the provisions of 38 C.F.R. § 4.30 (1994) (Paragraph 30 benefits). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from October 1942 to August 1946. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Los Angeles, California, which denied the veteran's claim for an increased rating and the claim for extension of Paragraph 30 benefits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased rating for his service-connected right hand condition. He asserts that his right hand produces some pain, swelling, and limitation of motion and strength. He states that these restrictions prevent him from enjoying daily social and employment events. It is also the veteran's contention that as a result of surgeries to his right hand, and the convalescent periods thereafter, he was unable to pursue his daily activities. Thus, he contends, in effect, that Paragraph 30 benefits should be extended to cover the period April 1, 1992, through May 19, 1992; and the period July 1, 1992, through August 5, 1992. 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 does not support an increased evaluation for a right hand condition. It is also the decision of the Board that the evidence supports the veteran's request for additional Paragraph 30 benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. After undergoing corrective surgeries of the right hand, the veteran is capable of performing daily tasks with minimal restrictions. 3. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. 4. The veteran underwent surgery on the right hand on February 6, 1992, and remained under physician's care and control until May 19, 1992. On that date, the veteran had further surgery on the his hand. Following surgery, he underwent physical therapy until he was released from the doctor's care on August 5, 1992. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right hand condition have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 5002 (1994). 2. The criteria for extension of Paragraph 30 benefits have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. I. Increased Rating for the Right Hand Following the veteran's release from active duty in 1946, he applied for service connection for a hand disability. Service connection was granted for "fusiform swelling, interphangeal (sic) joints both hands," and a noncompensable rating was assigned. In 1990, following an examination pursuant to the veteran's request for an increased disability rating, a 10 percent rating was assigned for erosive arthritis of the right hand, with a 20 percent assigned for erosive arthritis of the left hand. VA Form 21-6796, Rating Decision, September 12, 1990; 38 C.F.R. Part 4, Diagnostic Code 5002 (1990). In February 1992, the veteran underwent arthroplasty of the right hand, which was followed up by further surgery in May 1992. Upon completion of the surgeries, the veteran applied for an increased rating for his right hand condition. The RO reviewed the medical evidence, and, in September 1992, determined that the veteran's right hand condition remained no more than 10 percent disabling. VA Form 21-0584, Confirmed Rating Decision, September 13, 1992. The veteran has appealed that decision, claiming that the 10 percent disability evaluation does not adequately reflect the severity of the service connected right hand disability. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59 (1994). The veteran's hand disability is currently rated analogous to rheumatoid arthritis under 38 C.F.R. Part 4, Diagnostic Code 5002 (1994). Under rheumatoid arthritis, active, a 20 percent evaluation is warranted when the diagnosis is well established and there are one or two exacerbations a year. A 40 percent evaluation requires the presence of symptom combinations productive of a definite impairment of health, objectively supported by examination findings, or of incapacitating exacerbations occurring three or more times a year. Chronic residuals are rated on limitation of motion or ankylosis of the joint or joints involved or on the basis of each such major joint or group of minor joints affected by limitation of motion objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Such limitation of motion is rated under the appropriate Diagnostic Code for those joints. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Per the private medical records, the veteran does not suffer from favorable or unfavorable ankylosis of the fingers or thumb. Therefore, the criteria listed for an evaluation under Diagnostic Codes 5216 though 5223 do not apply. 38 C.F.R. Part 4, Diagnostic Codes 5216 - 5223 (1994). The veteran's most recent complete medical progress report, dated July 6, 1992, reflected that he was suffering from minimal pain and tenderness in the hand. There were no complaints of numbness or tingling sensations, and the swelling present after the veteran's surgeries, was gradually receding. Following that examination, the veteran was seen at the end of the month, when it was determined that he had regained the "normal" use of the hand. In determining whether an increased rating is warranted, the 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 an increased rating must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). It is the opinion of the Board that the evidence, which is negative for findings of restriction of movement of the hand, and no more than minimal swelling, heat, and pain, does not support an increased rating for a right hand disability. Thus, it is the decision of the Board that the available evidence is predominately against a disability rating greater than the 10 percent evaluation currently assigned. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 5002 (1994). II. Extraschedular Evaluation Consideration has also been given to the potential application of the extraschedular evaluation provisions of 38 C.F.R. § 3.321(b) (1994). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. III. Temporary Total Rating A total disability rating (100 percent) will be assigned when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Such total rating will be followed by appropriate schedular evaluations. (a) Total ratings will be assigned under this section if treatment of a service-connected disability resulted in : (1) Surgery necessitating at least one month of convalescence (Effective as to outpatient surgery March 1, 1989). (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 case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.) (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10, 1976.) The total rating will be followed by appropriate schedular evaluation. Where the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. (b) A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2, or 3 months beyond the initial 3 months may be made under paragraph (a)(1), (2), or (3) of this section. (2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Adjudication Officer. 38 C.F.R. § 4.30 (1994). Benefits under the just-cited regulations are commonly referred to as Paragraph 30 benefits and will be so identified in this decision. As a result of the veteran's reconstructive surgery of the right hand, the RO granted a temporary total rating in accordance with Paragraph 30. VA Form 21-6796, Rating Decision, May 11, 1992. The temporary total rating was assigned for the period that the veteran spent in the hospital and the convalescent period afterward -- February 6, 1992, through April 1, 1992, (a period of 1 month and 25 days). On April 8, 1992, the veteran was seen by his therapist who wrote that pain and edema were still present in the hand. She also wrote that the veteran was able to feed, groom, and dress himself, but was unable to use his hand for tasks that required fine coordination, grasping, and/or strength. In May 1992, the veteran had further surgery on the right hand. Private Hospital Records, May 19, 1992. He was seen by his therapist on May 29, 1992, who wrote that the veteran was not using the right hand for any functional tasks due to pain and fear of further injuring the hand. Paragraph 30 benefits were granted for the period of May 19, 1992, through June 30, 1992 (a period of 1 month and 11 days). VA Form 21-6796, Rating Decision, July 15, 1992. On July 1, 1992, the disability rating assigned to the right hand was reduced to 10 percent. The veteran has requested that the temporary total rating be extended beyond July 1, 1992, claiming that he has not regained full use of his hand. The RO denied his request in a Rating Decision dated September 13, 1992, and the veteran has appealed. On July 6, 1992, the veteran was seen again by his therapist. She wrote that both the pain and swelling were decreasing, and there were no complaints of numbness or tingling in the right hand. It was additionally noted that the veteran had some problems with the cutting of food, but was incorporating the use of the right hand into light daily activities. He was however still having difficulty with fine motor manipulation of the hand, along with grasping and other strength moves of the hand. The therapist wrote that the appellant still had not increased his range of motion or dexterity to the point where he had fine motor manipulation for writing skills or for the performance of tasks requiring a tight, strong, or forceful grasp. After further home therapy, the veteran was discharged from outpatient occupational therapy on July 31, 1992. On August 5, 1992, the veteran's treating physician, M. J. Cohen, M.D., wrote that the appellant had been discharged from his care. It is our determination that, based on the medical records of treatment, that between April 1, 1992, and May 19, 1992, ( a period of 1 months and 18 days) the veteran was not able to use his hand for ordinary activities. He did not have full range of motion, nor did he possess full strength in the hand. Therefore, it is our opinion that during this period, the veteran should have been receiving a temporary total rating. Additionally, the Board further believes that for the time period of July 1, 1992, through August 5, 1992,(a period of 1 month and 4 days) the veteran required intensive physical therapy and oversight by his treating physician. He was in a period of convalescence that was not officially over until his release from his doctor. The initial grant of benefits under Paragraph 30 covered a period of 3 months and 16 days. This decision adds 2 months and 22 days, bringing the total time for which Paragraph 30 benefits are payable to 6 months and 8 days. 38 C.F.R. § 4.30(a)(1)(b)(1) (1994) does not appear to provide for extensions beyond 3 months. Consequently, the veteran may have to settle for this grant less 8 days. If so, so be it. ORDER 1. Entitlement to an evaluation in excess of 10 percent for a right hand condition is denied. 2. Entitlement to Paragraph 30 benefits for the periods of April 1, 1992, through May 19, 1992, and July 1, 1992, through August 5, 1992, is granted, subject to the regulations governing the disbursement of monetary benefits. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME 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.