BVA9503032 DOCKET NO. 93-07 418 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for residuals of a Dupuytren's contracture of the right hand, currently rated in combination, as 20 percent disabling. 2. Entitlement to benefits under 38 C.F.R. § 4.30 for a period after April 1, 1991. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to August 1971 and from February 1973 to November 1978. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating actions by the Waco, Texas, Regional Office (hereinafter RO). The current combined rating for Dupuytren's contractures is arrived at by combining a 10 percent rating for an amputation of the right little finger, rated 10 percent and a contracture of the right middle finger rated 10 percent. As is set forth in greater detail below, it is concluded that the ring, middle, and index finger of the right hand are involved, and should be given a single rating for functional impairment. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that due to weakness in his right hand, the combined disability rating for residuals of his Dupuytren's contracture of the right hand should be increased. He also contends that he was entitled to at least three months of benefits under the provisions of 38 C.F.R. § 4.30 due to muscle damage in his right hand following the February 1991 surgery. 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 evidence warrants the assignment of a 30 percent rating for a Dupuytren's contracture of the ring, middle, and index fingers of the right hand but that the preponderance of the evidence is against a rating for this disability in excess of 10 percent for the residuals of an amputation of the right little finger. The preponderance of the evidence is also against the veteran's claim for entitlement to benefits provided by 38 C.F.R. § 4.30 after April 1, 1991. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran is right handed. 3. The veteran's right little finger was amputated at the proximal interphalangeal joint in February 1991. 4. The veteran's impairment of the ring, middle, and index fingers of the right hand is commensurate with moderate incomplete paralysis of the ulnar nerve, but no more. 5. Post-operative residuals of the February 1991 surgery at a VA medical facility were not so severe after April 1, 1991 so as to require immobilization or otherwise require convalescence. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent rating for residuals of a Dupuytren's contracture involving the ring, middle, and index fingers of the right hand are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8516 (1994). 2. The criteria for entitlement to a rating in excess of 10 percent for residuals of an amputation of the right little finger due to Dupuytren's contracture are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, 4.73, DC 5156 (1994). 3. The criteria for entitlement to benefits under 38 C.F.R. § 4.30 after April 1, 1991, are not met. 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as all pertinent evidence has been obtained and is of record. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Increased rating for a Dupuytren's contracture of the right hand The following is a summary of the relevant clinical history. Service medical records dated in February 1969 referred to a fracture at the base of the little finger of the veteran's right hand. The finger was placed in a splint with no complications reported. During the veteran's second period of service in January 1975, a mass was noted on the right little finger. A cyst on the right little finger was noted on a Report of Medical History completed in November 1975. The veteran stated that he was told by a physician to have this mass removed. By April 1976, the mass was described as enlarging and productive of pain and tenderness. Some limitation of extension was also described. The finger was examined in an orthopedic clinic in May 1976, with the veteran reporting a two year history of a nodular deformity along the ulnar border of the right little finger. The mass deformity was said to be growing in size and a 5 degree flexion contracture was shown. The impression was Dupuytren's contracture of the right fifth digit. This diagnosis was confirmed by a September 1976 visit to the hand clinic. An August 1977 service medical record indicated that the mass on the right little finger had progressed to the point that the contracture problem was interfering with some of the veteran's activities. A 15 degree flexion contracture was noted at the proximal interphalangeal joint of the right little finger. The other fingers of the right hand were normal. In September 1977, a surgical excision of the Dupuytren's contracture of the right little finger was performed. No complications were reported. A July 1978 record indicated there was a reoccurrence of the flexion contracture, and the veteran was placed on a limited duty profile. The first relevant post-service clinical evidence is contained in reports from a VA examination completed in November 1979. It was indicated at that time that the veteran was right-handed. The scar from the 1977 surgery was shown to be very retracted. The right fifth finger was shown to be retracted almost 50 percent, which the veteran said caused him great difficulty in performing his duties as a police officer. The grip strength of the remaining fingers of the right hand was described as good. A December 1979 rating decision established service connection for residuals of a Dupuytren's contracture on the right fifth finger. This disability was rated as analogous to an amputation at the proximal interphalangeal joint of the little finger of the major hand (DC 5156). A 10 percent rating was assigned. In August 1983, another surgical excision of the Dupuytren's contracture of the right fifth finger was performed. Before the surgery, there was no active extension of the distal interphalangeal joint of the right little finger. A temporary 100 percent convalescent rating was assigned for the Dupuytren's contracture from August 22, 1983, to October 1, 1983, and the ten percent rating was restored thereafter. A VA examination report dated in July 1984 showed the proximal interphalangeal joint of the right fifth finger to be in 70 degrees of flexion contracture. Noted also was mild hypesthesia of the skin surrounding the surgically incised area of the right hand. The impairment of function of the right hand was thought by the examiner to be mild. A September 1986 VA examination report showed the veteran stating that he had hyperextended the ring finger of his right hand 3 weeks previously. This had caused much pain and at the time of the examination, the veteran stated that he was unable to put any pressure on the fourth and fifth fingers of the right hand. The fifth finger was shown to be in 90 degrees of flexion at the proximal interphalangeal joint, and the veteran could not extend the finger at that joint. Also noted was thickening of the palmar fascia over the fourth finger. VA outpatient treatment records dated from August 1988 to April 1991 reflect continuing treatment for recurrent Dupuytren's contracture of the right hand. These records show a progression of the right hand disability to the point that the veteran's right little finger had to be amputated above the proximal interphalangeal joint at a VA medical facility in February 1991. Also performed was a surgical resection of diseased palmar fascia involving the fourth finger. The veteran tolerated the surgical procedures well and he was discharged from the hospital the day after the surgery. Coincident with the surgery described above, the RO assigned a temporary 100 percent convalescent rating under the provisions of 38 C.F.R. § 4.30 for the period between February 25, 1991, and April 1, 1991. The 10 percent rating under DC 5156 was restored thereafter, although the service connected disability was expanded to cover post-operative residuals of the right fourth finger. The veteran was afforded another VA examination in May 1992, at which time the veteran stated that despite the February 1991 surgery, he had contractures of the right ring, middle and index fingers. He reported that this was not a painful condition, but he stated he was no longer able to perform his duties in oil field construction because he could not grip a hammer or other tools properly as result of this disability. He said he involuntarily dropped a weed eater on one occasion when his right hand went numb. The veteran described continuous numbness in the remaining portion of his right little finger as well as in the palmar aspect of the right hand proximal to the metacarpophalangeal joints. Upon physical examination, the surgical scars remaining on the right hand were described, some of which were shown to be fixed to the deeper tissues and slightly tender to palpation. The stump of the right little finger had normal motion except for slightly decreased extension. There was a very slight decrease in extension of the right hand at the wrist. There was a full range of motion of the right thumb and the other fingers of the right hand except for the following: The right ring finger was approximately 28 degrees shy of full extension and the right middle and index fingers were approximately 7 degrees short of full extension. Flexion appeared to be normal but a moderate decrease in the ability of the veteran to grip with the right hand was shown. Palpation of the right palm showed tightness of the tendons of the right ring and middle fingers. The diagnoses were status post amputation of the right little finger at the proximal interphalangeal joint for recurrent Dupuytren's contracture and flexion contractures of the right ring and middle fingers causing weakness. A July 1992 rating decision increased the rating for the right hand disability to a combined 20 percent disabling. Two separate 10 percent disability ratings for the residuals of the Dupuytren's contracture were assigned; one by analogy to DC 5156 for the amputation of the little right finger at the proximal interphalangeal joint and one for involvement of the right middle and fourth fingers under DC 5309 (injury to the intrinsic muscles of the hand.) The VA Schedule for Rating Disabilities does not include a diagnostic code specifically applicable to Dupuytren's contractures. In rating a disability that is not listed in the Ratings Schedule, it is permissible to rate that disability under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. When choosing which diagnostic code to apply to an unlisted condition, codes for similar disorders or that provide a general descriptions that encompass many ailments should be considered. Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). In deciding which diagnostic code is "closely related" to the unlisted condition, the following three factors may be taken into consideration: (1) whether the functions affected by the condition are analogous; (2) whether the anatomical location of the condition is analogous; and (3) whether the symptomatology of the condition is analogous. Lendenmann v. Principi, 3 Vet.App. 345, 350-51 (1992). Applying the relevant regulations and precedent to the veteran's Dupuytren's contracture, the Board concludes that because this disability appears to be systemic and progressive in nature as it has gradually spread over the years from the right fifth finger to the fourth, third and possibly the second finger, it is preferable to rate the residuals of the service-connected disability under one diagnostic code that most closely reflects the nature of the overall disability resulting from the Dupuytren's contracture. This is also more advantageous to the veteran as the Board concludes that while the veteran cannot receive an increased rating under the diagnostic codes utilized by the RO in rating his level of disability, he is entitled to an increased rating under the diagnostic code that will be chosen by the Board. 38 C.F.R. § , DC 8516 provides the criteria for rating incomplete and complete paralysis of the ulnar nerve. These criteria include a "griffin claw" deformity due to a flexor contraction of the ring and little fingers; loss of extension of the ring and little fingers, loss of adduction of the thumb and weakened flexion of the wrist. Applying the three factors discussed in Lendenmann to the veteran's Dupuytren's contracture, the functions affected by this disability include the ability to grip and move the fingers and wrists; all of which are essentially contemplated by DC 8516. In addition, the anatomical location of a portion of the ulnar nerve coincides with the fifth finger and a part of the fourth finger, which is also an area affected by the Dupuytren's contracture. The symptomatology involved with the Dupuytren's contracture, particularly the flexor contracture of the fifth and fourth fingers and diminished motion of the right wrist, is also contemplated by DC 8516. The Board notes also that the symptoms of numbness in the right hand described by the veteran at the May 1992 VA examination are also within the scope of neurologic symptoms for consideration in the application of DC 8516. Under the analysis mandated by Lendenmann and the provisions of 38 C.F.R. § 4.20, the Board concludes that the disability picture contemplated by DC 8516 is more analogous to that involving the veteran's Dupuytren's contracture than is contemplated by any other diagnostic code. This rating is for the involvement of the remaining fingers, the amputation of the little finger at the proximal interphalangeal joint remains separately rated as 10 percent disabling. Under DC 8516, mild impairment resulting from incomplete paralysis of the ulnar nerve of the major hand warrants a 10 percent disability rating. Moderate impairment in the major hand resulting from the same disorder warrants a 30 percent disability rating and a severe level of impairment in the major hand warrants a 40 percent disability rating. Due to the findings of flexion contractures of the right ring, middle, and index fingers and subjective complaints of numbness involving the right hand from the May 1992 VA examination in light of the clinical history involving the veteran's Dupuytren's contracture, the Board concludes that a 30 percent rating for this disability under DC 8516 is warranted. However, the findings from the May 1992 VA examinations do not represent severe impairment, as the Board notes the veteran did not describe any pain associated with this disability at that time, there was a full range of right thumb motion, extension of the right hand was only slightly decreased and the ability of the veteran to grip was shown to be only be moderately decreased. The Board has considered the application of other diagnostic provisions, including those chosen by the RO. However, the highest disability rating available under 38 C.F.R. § 4.71a, DC 5156 for the amputation of the veteran's little finger is only 10 percent because this finger was amputated at the proximal interphalangeal joint and did not involve metacarpal resection. As noted, this rating remains in effect. As for the other diagnostic code chosen by the RO, 38 C.F.R. § 4.73, DC 5309, the application of this provision necessarily requires the rating to be based on limitation of motion of the third and fourth fingers. Limitation of motion of the fingers is rated as for ankylosis. The May 1992 VA examination indicated flexion of the fingers appeared to be normal, and the veteran would thus be rated under the provisions of 38 C.F.R. § 4.71a, DC 5223 pertaining to favorable ankylosis as opposed to those of 38 C.F.R. § 4.71a, DC 5219 contemplating unfavorable ankylosis. Under DC 5223, favorable ankylosis of the middle and ring finger receives a 10 percent disability rating. Thus, the veteran could only receive a combined 20 percent rating for his Dupuytren's contracture under the two diagnostic codes chosen by the RO. The Board finds no other diagnostic code in the Ratings Schedule which would result in the veteran receiving a disability rating in excess of 30 percent. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment beyond that contemplated by the schedular ratings assigned above due to the veteran's Dupuytren's contracture is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. II. Entitlement to benefits under 38 C.F.R. § 4.30 after April 1, 1991 A total disability rating is for assignment when it is established by report at hospital discharge or outpatient release that treatment of a service connected disability results in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals including stumps of recent amputations, or immobilization by cast of one major joint or more. Entitlement to one, two or three month periods of convalescent ratings from the first day of the month following such hospital discharge or outpatient release may be granted. 38 C.F.R. § 4.30. The report from the February 1991 surgery performed on the right hand indicated the veteran tolerated the procedure well and wanted to go home the day after the surgery. The veteran was in fact discharged from the hospital one day after the hand surgery with no complications reported. It was indicated the veteran could move all his fingertips at the time of discharge. In March 1991, the surgical sutures were removed and full extension of the affected fingers was shown. The overall impression was that the veteran was doing well. He was fitted with a splint and taught range of motion exercises in order to maintain full extension of the fingers. An April 1991 VA outpatient record showed the surgical wounds to be well-healed. A possible neuroma was noted and it was indicated that the veteran was progressing slowly. While the Board has considered the veteran's contention that the muscle damage in his right hand was so severe that he required three months of convalescence, the objective clinical evidence of record from the two months following the February 1991 surgery contain no evidence of such severe post-surgical complications that entitlement to benefits under 38 C.F.R. § 4.30 after April 1, 1991, are warranted. The veteran was shown to be doing well in March 1991 and the fingers were in full extension at that time. Given the lack of any evidence of serious complications or residuals from the February 1991 surgery and the absence of any notations in the March or April outpatient treatment records indicating that the veteran was precluded from returning to work or engaging in any activities, the Board concludes that entitlement to 38 C.F.R. § 4.30 benefits for a period of time beginning after April 1, 1991, is not warranted. ORDER Entitlement to a 30 percent rating for residuals of a Dupuytren's contracture of the ring, middle, and index fingers of the right hand is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for the amputation of the right little finger is denied. Entitlement to benefits under 38 C.F.R. § 4.30 for a period after April 1, 1991, is denied. MICHAEL D. LYON 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.