Citation Nr: 1304903 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-29 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for nerve damage of the right lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to November 2000, and from August 2004 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In November 2012, a videoconference hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. Subsequent to certification of the appeal to the Board, the Veteran's representative submitted a VA Form 21-4138, Statement in Support of Claim," wherein the representative indicated that it waswithdrawing its representatation of the Veteran. The record does not reflect that the Veteran was copied on this document, or otherwise provided notice of the intent to withdraw representation. As such, there has not been compliance with the provisions of 38 C.F.R. § 20.608(b), and as such, withdrawal of representation is not accepted as valid. The Board finds that the Veteran is not prejudiced by the failure of the Veteran's representative to provide an Informal Hearing Presentation on appeal in this case as the benefit sought is granted in full below. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record is in equipoise as to whether the Veteran's peroneal nerve injury of the right lower extremity is related to active service. CONCLUSION OF LAW Peroneal nerve injury of the right lower extremity was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran in this case contends that he sustained nerve damage to the right lower extremity as a result of an in-service improvised explosive device (IED) accident in which the Veteran was hit by a ricochet bullet on the back of his right leg. At his November 2012 hearing before the Board, the Veteran testified that he was serving in Ramadi, Iraq in January 2005 at which time the first democratic elections were held in Iraq. He volunteered for operations setting up poll sites and providing security. He described that while he was on a convoy mission, his vehicle came under enemy fire when an IED exploded and a fellow soldier who was riding in the vehicle was killed. A bullet ricocheted off his right leg and lodged directly behind his right knee, which was later removed at a combat medical tent. His wound was cleaned and he returned to duty. He stated that he experienced numbness from the bottom of the right knee to the tip of his little toe ever since that time. The Veteran's service treatment records are negative for any neurological abnormalities of the right lower leg. However, in a September 2005 post-deployment health assessment report, the Veteran reported that he was engaged in direct combat and that he was seen in sick call during his deployment in Iraq. In his January 2006 physical examination conducted for purposes of enlistment into Reserve service, he denied any numbness or tingling. After separation from service, the Veteran was seen by VA in November 2007. He reported that he sustained an IED injury in Iraq with shrapnel in his scalp. He also reported a bullet wound to the right knee and persistent numbness in the right leg. Objectively, there was decreased tactile sensation of the right leg. A March 2008 VA traumatic brain injury (TBI) note stated that on physical examination, the Veteran's sensation was intact to light touch in all dermatomes except in the lateral calf and lateral foot. The impression was probable right common peroneal neuropathy. A December 2009 VA TBI examination report noted that on physical examination, the Veteran had decreased sensation in the right lateral leg below the knee and lateral edge of the right foot, which he reported to have existed since a bullet injury to the right knee. The Veteran was afforded a VA neurological examination in December 2009. The Veteran reported that in January 2005 he was struck in the posterolateral aspect of the right knee with a ricochet bullet, which he stated hit the wheel of his truck and a fragment hit the lateral aspect of the right knee near the head of the fibula. He stated that the bullet penetrated the skin and it was removed by a corpsman and that there was a slight wound that was "superglued." He also stated that he carried on with his routine activities and was never incapacitated. The Veteran further reported that about two weeks after the injury, he noted a sensation of numbness along the lateral aspect of the right lower leg and the dorsum of the right foot, which had been persistent to the present time but had lessened to some extent. He stated that he had no pain associated with this injury or other symptoms in the right lower extremity related to this bullet wound. On neurological examination, strength was normal throughout the right lower extremity except for slight weakness in the right peroneus muscle. There was also moderately severe decreased pain, temperature, and touch sensation along the lateral aspect of the right lower leg and the dorsum of the right foot. The diagnosis was "mild, incomplete, right peroneal nerve injury secondary to bullet wound." The examiner noted that the injury resulted in some sensory loss along the lateral aspect of the right leg and the dorsum of the right foot and very subtle weakness in the peroneus muscle on the right side. The examiner further noted that there were no scars in the region of the lateral and posterior right knee and that there clearly had been complete healing of the wound that the Veteran sustained in January 2005. As noted above, the Veteran seeks service connection for nerve damage of the right lower extremity as a result of an IED during service. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the criteria for service connection have been met and the appeal will be allowed. As an initial matter, the record reflects a current diagnosis of mild right peroneal neuropathy. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As the Veteran has a current disability, the remaining question is whether there is evidence of an in-service occurrence of an injury or disease and evidence of a nexus or relationship between the current disability and the in-service disease or injury. In this regard, the Board accepts the Veteran's contentions regarding the in-service IED accident in January 2005 and the resulting neurological symptoms that developed ever since that time. Service personnel records confirm that the Veteran served in Iraq from October 2004 to September 2005. Although the claimed IED incident is not documented in service records and the Veteran reported in service that he engaged in direct combat during his deployment in Iraq. VA medical records consistently show that the Veteran has reported this IED incident and that he has shrapnel wounds in the head. Furthermore, service connection is currently in effect for TBI as a result of the claimed IED accident. Concerning this, VA conceded that based on military record searches, the Veteran was exposed to the claimed IED accident placing him in Iraq around January 2005 during elections when a fellow soldier was killed due to an IED explosion to which the Veteran was serving in close proximity. Furthermore, at his November 2012 Board hearing, the Veteran has provided testimony concerning numbness sensation in the right lower extremity that existed ever since the reported IED injury. He stated that he did not complain about the condition while serving in Iraq or on his separation examination as his personal situation at that time required that he be released from service as quickly as possible. The Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as the in-service IED accident or symptoms manifested subsequent to the traumatic accident. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran's testimony of continuing numbness in the right lower extremity during and after service to be credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Although his service treatment records do not specifically document this condition, post service records in less than two years reflect complaints and treatment for neurological abnormalities in the right lower extremity. As a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board therefore accords substantial weight to the Veteran's lay testimony regarding the observable symptoms despite the lack of documentation in the service treatment records of symptoms of the alleged condition. Finally, the December 2009 VA examiner noted a diagnosis of "mild, incomplete, right peroneal nerve injury secondary to bullet wound." The Board finds that this constitutes a medical opinion relating the Veteran's current nerve damage of the right lower extremity to his IED injury in service. In sum, the Veteran has evidence of a current disability of nerve damage of the right lower extremity, evidence of an IED injury during service and testimony as to continuity of symptoms since this event and evidence linking the current symptoms to the IED injury during service. Accordingly, resolving any reasonable doubt in the Veteran's favor, service connection for peroneal nerve injury of the right lower extremity is granted. See 38 U.S.C.A. § 5107(b). ORDER Service connection for peroneal nerve injury of the right lower extremity is granted. ____________________________________________ U R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs