Citation Nr: 1237657	
Decision Date: 11/02/12    Archive Date: 11/09/12

DOCKET NO.  08-03 312	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Hartford, Connecticut


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for the left knee disability. 

2.  Entitlement to service connection for a nerve injury of the left leg, to include as secondary to the service-connected left knee disability (claimed as entitlement to compensation for a nerve injury of the left leg pursuant to the provisions of 38 U.S.C.A. § 1151).  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active duty for training from August 1992 to December 1992 and active military service from March 1993 to February 1996.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO.  

The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in June 2010; a transcript of his testimony is of record.  The case was remanded, in part, for further development in September 2010.

With respect to the Veteran's claim for compensation for a nerve injury of the left leg, as explained in more detail below, the Board notes that his essential contention is that the nerve injury of the left leg is a residual of ACL repair of the service-connected left knee.  Hence, while the Veteran might have initially claimed entitlement to compensation for the nerve injury of the left leg pursuant to the provisions of 38 U.S.C.A. § 1151, the tenor of his contention is that his claimed left leg nerve injury is proximately due to, the result of or aggravated by his service-connected left knee disability.  Accordingly, the Board has rephrased this issue as reflected on the title page.  Given the Board's favorable disposition of this issue as explained below, any issue of entitlement to compensation for the nerve injury of the left leg pursuant to the provisions of 38 U.S.C.A. § 1151 is essentially rendered moot.  

While the case was undergoing remand development, service connection was granted for a right knee disorder and for a mood disorder.  This represents a complete grant as to those claims, so those issues are not longer before the Board.

Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 


FINDINGS OF FACT

1.  In September 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal regarding the claim for an evaluation in excess of 20 percent for the left knee disability.

2.  The currently demonstrated nerve disorder of the left leg is shown as likely as not to be causally related to or permanently made worse by the Veteran's service-connected left knee disability, or treatment therefore.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for an increased rating of the left knee disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).

2.  With resolution of reasonable doubt in the Veteran's favor a nerve disorder of the left leg is proximately due to or the result of the service-connected left knee disability.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.310 (2011).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Left Knee Increased Rating

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, in September 2012, the Veteran withdrew his appeal regarding the claim for an evaluation in excess of 20 percent for the left knee disability.  

Nerve Injury of the Left Leg

The Board has considered the regulations pertaining to VA's statutory duty to assist the Veteran with the development of facts pertinent to this claim.  Given the favorable action taken hereinbelow, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.310(a) (2011), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury.  That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis.  See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).  However, given the basis of the denial, as noted below, any further discussion of the amendment is unnecessary. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

The Veteran's service treatment records reflect no complaints of, treatment for or diagnosis of symptoms related to a nerve disorder or any other neurological deficit of the left leg.
 
Subsequent to service, the Veteran contends that he has a current nerve disorder of the left leg causally related to his service-connected left knee disability.  A July 2008 VA treatment record reflects that the Veteran experienced residual post operative sensory loss in the skin over the infrapatella branch of the saphenous nerve.  The physician expected this to improve over one to three years.

The September 2008 VA examination report reflects the Veteran's complaint of numbness on the lateral side of the left knee due to nerve injury sustained when a tourniquet was used on the left side.  The examiner indicated that such injury was unusual and recommended further neurological work up.

Pursuant to the September 2010 Board remand, the Veteran received a VA examination in October 2010.  The Veteran reported that he first noticed numbness and tingling in the lateral aspect of his upper left calf after his second ACL repair surgery to remove hardware placed in his left knee.  There has been no change since that time.  

The examiner indicated that the numbness corresponded to the distribution of the lateral sural cutaneous nerve, a branch of the common peroneal nerve.  The examiner reported that medical literature confirmed incidents of injury to this nerve with transverse femoral fixation of the ACL.  The examiner indicated that while this type of nerve injury was uncommon it was not rare.  Accordingly, the examiner opined that it was at least as likely as not that the Veteran's symptoms were a direct result of the ACL repair surgery the Veteran underwent.  

In a May 2012 VA examination report, the examiner clarified that nerve damage was a recognized complication of repair of the ACL by transverse femoral fixation.

Given its review of the record, the Board finds the evidence to be in relative equipoise in showing that the Veteran has a current nerve disorder of the left leg that as likely as not is etiologically related to his service-connected left knee disability.  In this regard, the Board notes that the VA examiner (October 2010 and May 2012) is certainly competent to make a medical determination as to causal relationship.  Thus, reasonable doubt is resolved in the Veteran's favor, warranting allowance of service connection for a nerve injury of the left leg, as secondary to the service-connected left knee disability.


ORDER

That portion of the appeal regarding the claim for an evaluation in excess of 20 percent for the service-connected left knee disability is dismissed.

Service connection for a nerve injury of the left leg, to include as secondary to the service-connected left knee disability is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs