Citation Nr: 21003850 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 12-29 085 DATE: January 25, 2021 ORDER Compensation under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg is granted. FINDING OF FACT Prior to his death, the Veteran sustained saphenous nerve damage of the right leg due to a surgery that the Veteran underwent in 2004 in order to correct a previous surgery that had mistakenly installed a screw that was too long into the Veteran’s right knee. CONCLUSION OF LAW The criteria for compensation for under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg have been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from August 1983 to June 1986. The Veteran passed away in August 2008. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This rating decision pertains to claims pending prior to the Veteran’s death, on which the Appellant belatedly was deemed a successful substitute appellant. This appeal is being adjudicated under the legacy appellate framework. In August 2013, the Appellant testified at a personal hearing before the Board, and a transcript of that hearing is of record. This matter was previously before the Board, and the Board remanded this matter for further development in July 2019 and in August 2020. Further development in substantial compliance with the Board’s previous remand instructions has been completed. Compensation under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg is granted. At issue is whether the Veteran was entitled to compensation under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg prior to his death. The weight of the evidence indicates that the Veteran is so entitled. VA obtained an independent medical opinion in September 2020. The provider noted that the Veteran underwent knee surgery in 2003, and, thereafter, the Veteran reported nerve pain. It was determined a screw used in the knee surgery was too long, and, as a result, a second surgery was required to shorten the screw. The Veteran continued to manifest nerve pain thereafter. The provider subsequently opined that it was at least as likely as not that VA care caused or worsened the Veteran’s saphenous nerve injury. The provider subsequently opined that the Veteran’s saphenous nerve injury was not the result of negligent healthcare. The provider reasoned that saphenous nerve damage was a foreseeable result of and likely caused by the second surgery. The weight of the evidence indicates that compensation under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg should have been granted. It is undisputed that the Veteran sustained saphenous nerve damage as a result of a second surgery provided by VA to correct problems with the first surgery. The Board is cognizant that the September 2020 independent medical opinion does not indicate that the nerve damage caused by the second surgery was due to substandard care. Nevertheless, the Board notes that the second surgery was only necessary, because the first surgery used a screw that was too long. But for this mistake, the Veteran would not have needed the second surgery, and would not have sustained the saphenous nerve damage caused by the second surgery. As such, the Veteran’s saphenous nerve damage of the right leg was ultimately attributable to substandard VA care. Here, the weight of the probative evidence of record demonstrates that the Veteran’s saphenous nerve damage of the right leg was ultimately attributable to the installation of a screw that was too long during a surgery provided by VA. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to   compensation under 38 U.S.C. § 1151 for saphenous nerve damage of the right leg is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.