Citation Nr: 23015035 Decision Date: 03/13/23 Archive Date: 03/13/23 DOCKET NO. 20-08 170 DATE: March 13, 2023 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a left lower extremity peroneal nerve disability with foot drop is granted. Entitlement to service connection for left lower extremity peroneal nerve disability with foot drop on a direct or secondary basis is denied. FINDINGS OF FACT 1. The Veteran incurred an additional disability of left lower extremity peroneal nerve disability with foot drop that was caused by VA treatment and was due to an event not reasonably foreseeable. 2. The evidence weighs against a finding that left lower extremity peroneal nerve disability with foot drop is attributable to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing compensation under the provisions of 38 U.S.C. § 1151 for left lower extremity peroneal nerve disability with foot drop are met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for establishing entitlement to service connection for left lower extremity peroneal nerve disability with foot drop have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August April 1972 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for left lower extremity peroneal nerve disability with foot drop and denied entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity peroneal nerve disability with foot drop. The Veteran timely perfected an appeal. See June 2017 Notice of Disagreement; January 2020 Statement of the Case; February 2020 VA Form 9. In October 2020, the Board remanded this matter for additional development. I. Compensation under 38 U.S.C. § 1151 The Veteran contends that he suffered additional disability due to VA surgery on May 2, 2006. A. Legal Criteria Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and either: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C. § 1151. The first element of a claim under 38 U.S.C. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. See 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure actually caused the additional disability. Id. However, causation alone is not sufficient to warrant compensation under 38 U.S.C. § 1151; rather, the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). B. Facts and Analysis The record reflects that the Veteran sustained closed and open femoral and tibial fractures after a motor vehicle accident in July 2005. He initially underwent intramedullary nailing (IM) of the femur and tibia, but he developed nonunion of his tibia. He underwent surgery for revision of his tibial non-union with removal of the IM nail and fibular osteotomy with bone graft in May 2006 at the Minneapolis VA Medical Center (VAMC). The operative report from the May 2006 surgery shows that an end cap on a nail fell back posteriorly into the cancellous proximal tibia and could not be retrieved. A July 2006 VA treatment record shows that the Veteran was seen for increased pain and erythema postoperatively in the left lower extremity. He was diagnosed with cellulitis versus deep infected nonunion, and he required additional surgery for incision and drainage and additional development. Subsequent VA treatment records show that the Veteran complained of chronic left foot drop since the May 2006 surgery. The Veteran was afforded a VA examination in May 2018. The examiner opined that the Veteran's left foot drop was more likely the result of the July 2005 motorcycle accident rather than the May 2006 surgery. The examiner also opined that the additional disability resulted from an event that could not have been reasonably foreseen. The Veteran was afforded an additional VA examination in March 2021. The examiner noted a diagnosis of left peroneal mononeuropathy with foot drop. The examiner opined that the Veteran's left peroneal mononeuropathy with foot drop was "clearly due to injury to the left peroneal nerve between the foot and ankle." The examiner further opined that it was at least as likely as not that the Veteran's left peroneal mononeuropathy with foot drop was caused by the surgery performed at the Minneapolis VAMC on May 2, 2006. The examiner noted that the end cap of a nail fell back into the cancellous proximal tibia and could not be retrieved. The examiner explained that it is "well recognized that retained foreign bodies in a wound increase the likelihood of postoperative infection." The examiner concluded that it was therefore more likely than not that the retained end cap substantially contributed to the development of the left lower extremity postoperatively and that it was more likely than not that the infection led to the Veteran's left peroneal mononeuropathy with foot drop either as a consequence of injury to the left peroneal nerve at the time of the May 2006 surgery or a consequence of peroneal nerve compression by the cellulitis that developed postoperatively. The examiner also opined that it was less likely as not that the Veteran's additional disability resulted form carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. However, the examiner further indicated that "[t]he end cap on a nail falling back posteriorly into the cancellous proximal tibia and inability to retrieve that end cap could not have reasonably been foreseen by a reasonable healthcare provider." In a May 2021 addendum report, the March 2021 VA examiner reiterated that it would not have been possible for a reasonable healthcare provider to foresee the end cap of the nail falling back into the tibia or the inability to retrieve it. The above evidence demonstrates that the Veteran incurred additional disability in the form of left peroneal mononeuropathy with foot drop due to a surgical procedure performed by VA medical personnel and that this additional disability was caused by an event not reasonably foreseeable, i.e., the end cap falling into the tibia and resultant infection/nerve damage. Accordingly, the criteria for entitlement to compensation under 38 U.S.C. § 1151 have been met and the claim is granted. II. Service Connection The Veteran has also asserted that his left peroneal mononeuropathy with foot drop is due to his service-connected low back disability. Although the Board acknowledges that it granted entitlement to compensation under 38 U.S.C. § 1151 for left peroneal mononeuropathy with foot drop in the discussion above, entitlement to VA compensation under 38 U.S.C. §§ 1110 or 1131 based on service connection is a greater benefit as there are potentially additional ancillary benefits that are not available with compensation under 38 U.S.C. § 1151. See Hornick v. Shinseki, 24 Vet. App. 50, 53-55 (2010). Accordingly, the Board will also address service connection for left peroneal mononeuropathy with foot drop. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § § 1113 (b); 38 C.F.R. § § 3.303 (d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). B. Factual Background Service treatment records show that the Veteran sustained a fracture of L1-L2 after an in-service motor vehicle accident in September 1972. A June 1975 VA neurological examination shows that the Veteran ambulated without any noticeable gait disturbance. There was no evidence of any foot drop or ankle clonus. Patrick and Lasegue signs were negative, and there was no weakness or atrophy in either lower extremity. Sensory modalities and vibratory sense were intact. In February 2017, a VA examiner opined that the Veteran's chronic foot drop was less likely as not related to his service-connected low back disability. The examiner noted that there was no evidence of left L2-S1 radiculopathy, which is the level at which the Veteran fractured his back. The examiner also noted that there were chronic changes suspected in L5 distribution, "many levels below his injury." In April 2017, a VA examiner opined that the Veteran's chronic foot drop was less likely as not related to his service-connected low back disability. The examiner indicated that examinations done from 1985 until his 2005 motor vehicle accident document no neurological deficit of the left lower extremity and no atrophy. The examiner further noted that since the 2005 motor vehicle accident, the Veteran developed a neurologic deficit of peroneal nerve with foot drop. The Veteran was afforded a VA foot conditions examination in May 2018. He reported that he developed pain, numbness, tingling, and foot drop of his left lower extremity after the May 2006 surgery. The Veteran was afforded a VA examination in March 2021. He reported that he had had a left foot drop since his in-service back injury in 1972. The examiner noted a diagnosis of left peroneal mononeuropathy with foot drop. The examiner opined that the Veteran's left peroneal mononeuropathy with foot drop was less likely as not due to his service-connected low back disability. The examiner indicated that the record contradicts the Veteran's claim that his left foot drop developed in 1972 along with his service-connected back disability. The examiner noted that the first evidence of foot drop followed the May 2006 surgery. The examiner also noted that an EMG (electromyography) performed in December 2016 showed abnormal peroneal nerve function with no evidence of left L4, L5, or S1 radiculopathy. The examiner concluded that the "Veteran's left foot drop is therefore clearly due to injury to the left peroneal nerve between the knee and the ankle." The examiner also opined that the Veteran's left foot drop was less likely as not aggravated by his low back disability because the left foot drop had neither worsened nor improved from its onset in 2006. C. Analysis As an initial matter, the Board notes that the Veteran has been diagnosed with left lower extremity peroneal nerve disability with foot drop. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, there is no evidence to suggest that left lower extremity peroneal nerve disability with foot drop first manifested during service or for many years thereafter. Following service separation, the evidence of record shows no complaints, diagnosis, or treatment for foot drop until 2006, over 30 years after the Veteran's discharge. Significantly, a June 1975 VA neurological examination shows no evidence of left lower extremity neurological deficits, to include foot drop. Subsequent treatment records do not reflect complaints of or treatment for foot drop until the Veteran's May 2006 surgery. As discussed in detail above, the evidence in this case clearly shows that the Veteran's left foot drop was caused by his May 2006 surgery. Based on the foregoing, the Board finds that service connection on a direct basis for left lower extremity peroneal nerve disability with foot drop is not warranted. The Veteran's main contention with respect to his claim is that his left lower extremity peroneal nerve disability with foot drop is secondary to his service-connected low back disability. After reviewing the foregoing evidence, the Board finds that service connection is not warranted on a secondary basis. In this regard, the Board finds the February 2017, April 2017, and March 2021 VA opinions to be highly persuasive to the issue of whether the Veteran's current left lower extremity peroneal nerve disability with foot drop is caused or aggravated by his service-connected low back disability. The Board places great probative weight on the VA opinions in this case, as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Specifically, the February 2017 VA examiner opined that the Veteran's current left lower extremity peroneal nerve disability with foot drop was less likely as not related to his low back disability because there was no evidence of left L2-S1 radiculopathy, which is the level at which the Veteran fractured his back. Similarly, the April 2017 VA examiner opined that Veteran's current left lower extremity peroneal nerve disability with foot drop was less likely as not related to his low back disability because examinations done from 1985 until his 2005 motor vehicle accident document no neurological deficit. Finally, the March 2021 VA examiner noted that an EMG performed in December 2016 showed abnormal peroneal nerve function with no evidence of left L4, L5, or S1 radiculopathy and that the "Veteran's left foot drop is therefore clearly due to injury to the left peroneal nerve between the knee and the ankle." The examiner also opined that the Veteran's left foot drop was less likely as not aggravated by his low back disability because the left foot drop had neither worsened nor improved from its onset in 2006. There is no competent opinion of record supporting a finding that the Veteran's current left lower extremity peroneal nerve disability with foot drop is caused or aggravated by his service-connected low back disability. The Board has also considered the Veteran's assertions that left lower extremity peroneal nerve disability with foot drop is caused or aggravated by his service-connected low back disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a peroneal nerve disability, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his diagnosed left lower extremity peroneal nerve disability with foot drop is related to a service-connected disability, requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Hence, his assertions in this regard have no probative value. Therefore, based on the foregoing, the Board finds that service connection for left lower extremity peroneal nerve disability with foot drop is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the weight of the evidence is against the Veteran's claim of entitlement to service connection for conjunctivitis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, Counsel 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.