BVA9508366 DOCKET NO. 91-37 279 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to compensation for additional disability of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had service from May 1963 to May 1966. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 1990 decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to compensation benefits for left leg injury, claimed as weakness, under the provisions of 38 U.S.C.A. § 1151 (formerly § 351). This is the issue that has been certified to the Board for review. However, since the February 1990 decision, the RO in a March 1991 decision, pursuant to the Hearing Officer's decision, granted the veteran service connection for arterial occlusive disease of both lower extremities, status post aortobiprofundic bypass as secondary to service-connected hypertension with nephrosclerosis. The denial of any benefits under 38 U.S.C.A. § 1151 was continued. The veteran's representative argues in effect that the residuals of the surgery include a nerve injury and that the claimed weakness of the left lower extremity is due to that injury as well as claudication. The Board construes the contentions as including assertions that the veteran has neuropathy of the left lower extremity which is proximately due to or the result of the service-connected postoperative arterial occlusive disease and should be service connected under 38 C.F.R. § 3.310(a). The Board considers this an inextricably intertwined issue over which it has jurisdiction, and, in light of the decision below, construes the issue to be that listed on the first page of this decision. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he has left lower extremity weakness, specifically, ischemic monomelic neuropathy, which is a result of aortobiprofundic bypass surgery performed in a VA hospital for his subsequently service-connected arterial disease. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of a grant of service connection for ischemic neuropathy of the left lower extremity as proximately due to or the result of service connected disability. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. It is more likely than not that the veteran has ischemic neuropathy of the left lower extremity which is the result of treatment for his service-connected arterial occlusive disease. CONCLUSION OF LAW Ischemic neuropathy of the left lower extremity is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In this case, the evidence shows that the veteran underwent aortobifemoral artery bypass graft for bilateral aortoiliac arterial occlusive disease and peripheral vascular disease at a VA Medical Center in May 1989. The summary report of hospitalization reveals that postoperatively he developed complications of motor deficits in the left lower extremity with patchy sensory loss. Two days after surgery, muscle strength in the left lower extremity was 3/5. A magnetic resonance imaging scan showed general stenosis of the lumbar spine with space filling lesions. His motor strength improved and sensory deficits resolved. The etiology of the lower extremity weakness remained uncertain. VA outpatient treatment records in 1989, subsequent to the surgery, reflect continuing complaints of pain and weakness in the left lower extremity. In July 1989 history was given of postsurgical immediate inability to move the left lower extremity and eventual weakness, numbness and atrophy. The examiner noted patchy sensory loss, not corresponding to a particular dermatome. The impression was that this most likely represented ischemic monomelic neuropathy. Subsequent outpatient treatment records in 1989 and 1990 showed a series of electromyographic studies (EMG) which reflected improvement in the lower extremity denervation. There was some consideration and impression (May 1990) of lumbar radiculopathy, but his neurologic deficit in the left lower extremity was, for the most part, assessed as being postsurgical ischemic monomelic neuropathy. In October 1991 the pain clinic examiner expressed the opinion that the veteran had a combination of nerve injury and claudication; and that his peripheral status was poor and consequently he was at a higher risk for nerve injury associated with the aortobifemoral artery bypass graft, anesthesia or both. After reviewing the evidence, the Board concludes that the weight of the evidence leads to the conclusion that the veteran has a neuropathy of his left lower extremity as a residual of surgery for his service connected arterial occlusive disease. Although denervation was shown to be improving on a series of EMG's during outpatient treatment after surgery, on the most recent evidence of record, the report of VA hospitalization in April and May 1992, there was still some mild loss of strength in the left lower extremity. Because the Board finds that the veteran has left lower leg neuropathy as a result of treatment for a service- connected disability and, therefore, that service connection for the disability is warranted under 38 C.F.R. § 3.310(a), the claim for compensation for the same disability under 38 U.S.C.A. § 1151 is moot. ORDER Service connection for ischemic neuropathy of the left lower extremity is granted. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.