BVA9504558 DOCKET NO. 92-10 683 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for residuals of a fracture of the left olecranon, currently evaluated as 10 percent disabling. 2. Entitlement to a temporary total evaluation based on hospitalization and surgery during November 1991, pursuant to 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to March 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in St. Paul, Minnesota. In October 1993 the Board remanded the case for additional development. The case has been returned to the Board for further appellate action. The Board notes that the issue of entitlement to an increased evaluation for residuals of a fracture of the left olecranon will be addressed in the remand that follows the subsequent decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should be granted a temporary total disability rating pursuant to 38 C.F.R. § 4.30, to cover a period of time following his November 1991 surgery for his service- connected disability. He asserts that his VA physician advised him to not return to his work as a metal sheet worker in order to give his elbow an opportunity to heal. 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 is at least in equipoise and that with resolution of reasonable doubt in the veteran's favor the evidence supports a grant of temporary total evaluation based upon hospitalization and surgery in November 1991. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran required a period of convalescence and could not work because of his service-connected residuals of a fracture of the left olecranon from November 13, 1991 to December 31, 1991. CONCLUSION OF LAW As a result of the veteran's November 1991 left elbow surgery, the requirements for a temporary total disability evaluation to December 31, 1991, have been met. 38 C.F.R. §§ 3.102, 4.30 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim for entitlement to a temporary total rating following his left elbow surgery in November 1991 is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this issue and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. Service medical records show that in February 1970 the veteran underwent an open reduction and internal fixation of his left olecranon fracture. Service connection has been in effect for residuals of a fracture of the left olecranon effective from the day following separation from service in March 1971. The left elbow injury was initially rated as noncompensable and was increased to 10 percent in October 1991. A VA operative report shows that on November 14, 1991, the veteran underwent surgery for the removal of olecranon wire. The report notes that a significant amount of bony overgrowth over the wire was chipped away. It further shows that there was no evidence of neuroma formation. The veteran experienced no intraoperative complications, and was discharged on November 15, 1991. A VA follow-up surgical service progress note in November 1991 shows that the veteran was seen one week status post removal of wire from his left elbow. The veteran's incision scar was healing well and he was instructed to begin range of motion exercises twice a day. The note further shows that the veteran was to return in three weeks time. An accompanying occupational therapy consultation request shows that the veteran was provided a cushioned elbow pad to protect the joint from bumping. Finally, a December 1991 VA surgical service progress note shows that the veteran was doing well but experienced pain with extension. The note further shows that the examiner would prepare a "note for work." In his Substantive Appeal, received in March 1992, the veteran claims that he was fitted for an elbow brace following his left elbow surgery and prescribed "light" physical therapy. The veteran claims that he was initially told to do "light duty" work following his surgery, but that the VA physician told him not to return to work as he was employed as a sheet metal worker and time was required to let the wound heal and the swelling to abate. Under the provisions of 38 C.F.R. § 4.30, a total rating will be assigned 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 hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (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 wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. In this case, there is no definitive medical evidence that the veteran specifically required convalescence for one month following his left elbow surgery. However, in the Board's opinion the veteran has given a credible description of the events following his surgery. His claim is buttressed by medical evidence of the November 1991 surgery and subsequent progress notes. In this respect, the Board notes that the removal of the wire around the left olecranon required chipping away of bone. While the veteran's elbow was not immobilized by a cast, he indicates that the cushioned elbow pad provided him by VA made it impossible for him to straighten his arm. Finally, the nature of the veteran's work as a metal sheet worker and the December 1991 VA progress note reference to writing a note for work make it more probable that the veteran was advised not to return to work immediately after his surgery. Resolving all reasonable doubt in the veteran's favor, the Board finds that the evidence supports the veteran's claim that he could not return to work, at least through the month of December, as a result of his November 1991 surgery. Therefore, the Board concludes that the November 14, 1991, surgery necessitated convalescence through December 1991. 38 C.F.R. §§ 3.40, 3.102. ORDER A temporary total disability rating for convalescence through December 1991, based on left elbow surgery on November 14, 1991, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND As to the veteran's claim for an increased evaluation for residuals of a fracture of the left olecranon, one of the purposes of the December 1993 remand was to obtain as complete data as possible concerning this disability and to have the RO&IC consider possible neurological deficits as a component of the veteran's service-connected disability. The Board notes that the RO&IC did arrange for a VA examination of the veteran's left elbow; however, the examiner did not offer an opinion as to the etiology of the pain radiating into the veteran's left fourth and fifth fingers. In this respect, the Board notes that, when the veteran was initially examined by VA in May 1978, the neurologist noted that the veteran had diminished pin prick in the fifth digit and the ulnar side of the fourth digit, which appeared to have been associated with the veteran's initial injury in service. The diagnosis was post traumatic, chronic neuropathy of the left ulnar nerve with mild sensory deficits only. The Board finds that a medical opinion should be obtained before the veteran's claim can be adequately determined. Further, the United States Court of Veterans Appeals has held that, under 38 U.S.C.A. § 5107(a) (West 1991), VA's duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment. Littke v. Derwinski, 1 Vet.App. 90 (1990). The veteran's should also be afforded another VA orthopedic examination. Finally, the Board notes that the veteran has raised the issue of entitlement to service connection for a skin rash on his back as a result of residuals of exposure to Agent Orange. In a July 1991 letter, the RO&IC advised the veteran that a decision on his claim would be delayed until new regulations for exposure to Agent Orange were effective. In a later, September 1991 letter, the RO&IC requested the veteran provide the names and addresses of health care providers who had treated him for a skin rash or chloracne. A November 1991 VA progress note shows that the veteran complained of exposure to Agent Orange in service and had severe acne on his back. As final regulations regarding skin disabilities as a result of exposure to Agent Orange are in effect, the Board is of the opinion that this issue should be developed. Accordingly, the case is REMANDED to the RO&IC for the following actions: 1. The RO&IC should obtain copies of all outpatient treatment records for the veteran from the VA Medical Center in Minneapolis, Minnesota, dated from December 1991 to the present. Further, the RO&IC should obtain copies of all outpatient treatment records for the veteran from the VA Medical Center in Kansas City, Missouri, dated from February 1994 to the present. 2. When the foregoing development is complete, the RO&IC should arrange for VA orthopedic and neurology examinations of the veteran by appropriate board certified specialists, if available, to determine the nature and extent of the veteran's current residuals of a left elbow injury. All indicated studies, including range of motion for the left forearm and wrist, should be performed. The examiners should be specifically requested to comment on any pain the veteran may experience during the examinations and on any objective evidence thereof. The neurologist should be further requested to provide an opinion, with complete rationale, as to the etiology of the pain radiating into the veteran's left fourth and fifth fingers. He/she should specifically comment on the May 1978 VA neurologic examination report in the opinion. The claims file should be made available to the examiners prior to the examinations. 3. The RO&IC should undertake any indicated development and adjudicate the veteran's claim of entitlement to service connection for skin disability as a result of exposure to Agent Orange. 4. Thereafter, the RO&IC should readjudicate the claim of entitlement to an increased rating for residuals of left elbow injury. In readjudicating this claim, the RO&IC should specifically consider whether separate ratings should be assigned for impairment of the veteran's fourth and fifth fingers of his left hand. If the benefit sought on appeal is not granted to the veteran's satisfaction, or if a Notice of Disagreement is received with respect to any other matter, a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. F. JUDGE FLOWERS 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.