Citation Nr: 0810386 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-21 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 based on a need for post-surgical convalescence. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from February 1973 to January 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. That decision, in pertinent part, denied a temporary total evaluation for treatment of a service-connected condition. In March 2004, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. FINDING OF FACT The August 2002 surgical excision of a cyst at the third digit proximal phalange of the right hand was related to the service-connected right wrist disability. CONCLUSION OF LAW The criteria for a temporary total rating, pursuant to 38 C.F.R. § 4.30, for August 2002 surgical removal of a cyst of the right third digit proximal phalange are not met. 38 U.S.C.A. §§ 1155, 5012, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.30 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, August 2003, September 2004, and March 2005 letters to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). The information and evidence associated with the claims file consist of the veteran's service treatment records, VA medical treatment records, private post-service medical treatment records, VA orthopedic examinations, and statements and testimony from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. Lastly, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the rating and effective date of an award. For the reasons described below, service connection and/or an increased rating for the claimed disability is being denied and neither a rating nor an effective date will be assigned. As such, there is no prejudice to the veteran with respect to any notice deficiencies related to the rating or effective date. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Temporary Total Disability Rating, Pursuant to 38 C.F.R. § 4.30, for August 2002 Treatment A total disability rating will be assigned following hospital discharge or outpatient release, effective from 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 if the 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 cast, 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 10m 1976). Extension of periods of 1, 2, or 3 months beyond the initial 3 months may be made under subparagraph (1), (2), or (3). In addition, approval may be obtained for extensions of 1 or more months, up to 6 months beyond the initial 6-month period, under subparagraph (2) or (3) 38 C.F.R. § 4.30. Background and Analysis The record shows that the veteran underwent surgery on August 30, 2002, for excision of giant cell tumor, third digit, proximal phalanx, of the right hand. However, he is not service-connected for a disability of the right third finger. And, as explained below, the RO specifically denied service connection for this disorder on a secondary basis. He is, however, service-connected for a right wrist disability. Specifically, service connection was established upon rating determination in January 1981 for ganglion cyst of the right wrist. A noncompensable rating was assigned. A temporary total rating for the period from July 24, 1996, through August 31, 1996, was assigned subsequent to surgery at a VA facility in July 1996 for removal of the ganglion cyst. On September 1, 1996, the noncompensable rating was reinstated. After the 1996 surgery, and as indicated upon VA examination in April 1997, the veteran continued to complain of numbness in the thumb and part of the index finger. Exam showed slight sensory loss along the palmar surface of the thumb and index finger. In a May 1997 rating determination, the noncompensable rating in effect for the right wrist disorder was increased to 20 percent, effective September 1, 1996. Following VA examination in April 1998 which showed tenderness over the scar of the right wrist with a positive Tinel's sign with resultant tingling in the right thumb and index finger, but without muscle involvement and grip and slight limited range of motion of the right wrist, the RO, in a June 1998 rating decision, confirmed and continued the 20 percent rating. When examined by VA in February 1999, the veteran reported that since surgery in 1996, his right thumb and index finger had been numb. There was resultant pain in the forearm. He had trouble holding scissors (which caused him to lose his job as a barber). He felt that the grip strength in the thumb had decreased as had his right wrist range of motion. Examination of the right wrist corroborated this and a neurologic deficit was noted. In a July 1999 rating decision, the 20 percent rating in effect for the right wrist disorder was increased to 30 percent from January 26, 1999. In August 2002, the veteran underwent excision of a giant cell tumor cyst of the right third digit , proximal phalange. Follow-up VA examination report from September 2002 reflects that the veteran's right wrist complaints continued. Specifically, the veteran reported wrist pain that shot up the right forearm with loss of grip strength in the fingers (other than digits one and two). The recently developed ganglion cyst on the third finger was noted. This had significantly impaired his grip strength. It had been enlarging for about 4 months and was removed the month before. The incision was still healing. Following evaluation, the final diagnoses included residual nerve damage involving the thumb and forefinger associated with the post ganglion cyst removal at the right wrist which had been surgically resected; recent resection of a ganglion cyst of the metaphalangeal joint of the right middle finger. The veteran was in postoperative recovery and was expected to improve soon. In October 2002, the 30 percent rating in effect for the veteran's service-connected right wrist disorder was confirmed and continued. Also, a temporary total rating for the August 2002 surgical treatment was denied. The veteran disagreed and this appeal ensued. VA records in 2003 show that the veteran's right hand complaints continued. The veteran reported persistent pain and dysthesia of the scar with loss of sensation of the distal finger. He was on medication with reasonable pain relief. In the Board's August 2004 remand, it was determined that a disability rating in excess of 30 percent was not warranted for the veteran's service-connected right wrist disorder. It was also determined, however, that a remand was necessary as to the issue currently before the Board regarding a temporary total rating pursuant to 38 C.F.R. § 4.30 regarding VA surgical treatment in August 2002. Moreover, it was determined that there should be resolution of the claim of service connection for a right middle finger condition, claimed as secondary to the service-connected postoperative residuals of a right wrist ganglion cyst removal. The development requested included scheduling of a VA examination and opinion regarding the etiology of the right finger cyst. In September 2004, the veteran submitted a statement and color photographs of the right hand and wrist in support of his claim. The veteran asserted that the photos showed his swollen middle finger of the right hand upon which he had no grip control whatsoever. He included a photo which showed that his surgical scar ran from the first joint down and across his palm. These photos showed the veteran's oversized middle finger of the right hand. He also pointed out that the photos showed the deep impression at the base of the middle finger. VA examination of the right hand, thumb, and fingers was conducted in March 2005. The claims file was reviewed by the examiner. He noted that the veteran was service-connected for residuals of a ganglion cyst removal from the right wrist. He was there to be evaluated for his right middle finger which was not a service-connected disorder at the current time. The veteran's medical history included the removal of the ganglion cyst in 1996. The veteran reported that since that surgery, he had had burning and tingling mainly on the thumb and index finger, mainly in the dorsum of the right hand. The veteran said that in 1999, he had a cyst removed from his middle finger on that same hand and that ever since, he had experienced numbness in the thumb, index, and middle fingers. He had significant loss of grip strength. The examiner noted that the veteran apparently thought that the ganglion cyst was returning. It was noted that the veteran did not describe limitation on the right hand due to fatigability, incoordination, or repetitive motions. He did not describe flare-ups or incapacitating episodes. He did describe that his hand became sort of numb and painful. He also described that his lack of sensation caused him difficulty doing heavy work with the hand. Physical exam showed no obvious deformity of the right hand. There was no intrinsic atrophy or thenar or hypothenar atrophy on observation. He did have a scar over the volar aspect of the wrist at the proximal wrist crease presumably from his previous cyst removal. On palpation of the area, he did seem to have a possible recurrence of the cyst versus possible scar formation. There was no definite cyst demonstrable on exam today. He was slightly tender in this area. Evaluation of the middle finger showed no obvious deformity. There was a 1.5 inch scar over the volar aspect of the middle finger starting from around the proximal interphalangeal (PIP) joint and passing metacarpophalangeal (MCP) joint and just to the first palmar crease of the hand. The scar was well healed. There was no evidence of any atrophy, shiny skin, or breaking of the skin. The scar was not particularly tender. On range of motion, he essentially had excellent dexterity and ability to touch all fingers to the palm and all fingers to the thumb on the right hand as easily as the left. No obvious loss of motion was indicated. There was excellent capillary refill on the middle finger, and sensation on light touch was intact. He did seem to have some abnormal sensation in a superficial and radial nerve sensory distribution. The examiner's impressions were mild subjective numbness on the fingertips especially at the middle finger. He did have intact two point discrimination on the lower surface of his fingertip of the middle finger. The examiner stated that any neuropathy of the middle finger could not be demonstrated on exam. There was no loss of motion from the surgery on the finger and no obvious pain with range of motion of the finger. Another VA examiner noted in August 2005 that he reviewed the results of the March 2005 examination. He opined that the right hand finger condition was not related to the right wrist condition. The rationale was because the veteran's right hand third finger disability started after removal of the cyst from the right third middle finger on the right hand. The ganglion cyst was removed several years prior, and there was no disability related to that surgery with respect to the right third middle finger. In a September 2005 rating decision, service connection was denied for residuals of excision of giant cell tumor of the proximal phalanx of the right middle digit as secondary to the service-connected disability of the right wrist ganglion cyst removal. In the case at hand, the record shows that the veteran underwent surgery in August 2002 for removal of a cyst of the right middle finger. This was subsequent to surgery for cyst removal of the right wrist for which service connection is in effect. The veteran argues that the August 2002 surgery was for his service-connected right wrist disorder and that a temporary total rating, pursuant to 38 C.F.R. § 4.30, for convalescence is warranted. However, as explained in detail above, service connection was recently denied for the right middle finger disability. The preponderance of the medical evidence weighs against a finding that the right middle finger cyst may be secondarily associated with the service- connected right wrist disorder. The examiner noted that the veteran's right middle finger complaints began after the surgical removal of the cyst on that finger. Such residuals were not evident after the 1996 cyst removal for which service connection is in effect. Therefore, the August 2002 medical treatment, to include surgical removal of the right middle finger cyst, was not for a service-connected disability. As such, entitlement to a temporary total disability rating, pursuant to 38 C.F.R. § 4.30, for the August 2002 treatment in question is not established. As to this issue, the evidence is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2006). The preponderance is against this claim, and it must be denied. ORDER A temporary total disability rating, pursuant to 38 C.F.R. § 4.30, for August 2002 surgical removal of a cyst of the right middle finger is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs