Citation Nr: 1512592 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 10-40 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for left Achilles tendonitis. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to September 1990 and from January 2007 to October 2007. He also completed 13 years and 10 months of inactive service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDING OF FACT The medical evidence does not clearly and unmistakably show that the Veteran's left Achilles tendonitis preexisted service. CONCLUSION OF LAW The criteria for service connection for left Achilles tendonitis have been met. 38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2014); 38 C.F.R. § 3.303, 3.304 (2014); VAOPGCPREC 3-2003 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record reflects that when the Veteran was examined at entrance into active service for deployment, no left Achilles tendon condition was noted. See November 2006 health assessment and January 2007 pre-deployment health assessment. The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2014). Here, VA cannot presume that, at service entry, the Veteran was not sound with respect to his left Achilles tendon. To rebut the presumption of sound condition under 38 U.S.C.A. §§ 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261-263 (Nebeker, C.J., concurring in part and dissenting in part). Even assuming that there was clear and unmistakable evidence that a left Achilles tendon injury preexisted service, the next question in order to rebut the presumption of soundness is whether there is clear and unmistakable evidence that such injury was not aggravated during service. Clear and unmistakable evidence that the disease or injury was not aggravated by service may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2013). In the Veteran's January 2009 claim for service connection, he specified that he received treatment in service for a ruptured Achilles tendon between January 11, 2007 and January 25, 2007. According to an October 2014 VA Disability Benefits Questionnaire for ankle conditions, the Veteran has a current diagnosis of left Achilles tendonitis. According to a December 2006 pre-deployment health assessment, the Veteran reported no ankle problems. The Veteran's service treatment records amply document his left Achilles injury in service the following month. The Veteran was first seen for this injury on January 16, 2007, at which time he was diagnosed with left Achilles tendonitis. The clinician noted a prior injury from "11jan06" and stated that the Veteran "still has some complaints with weight bearing on insertion of [the left] ankle achilles tendon." Service treatment notes dated January 22, 2007, January 23, 2007, January 26, 2007, January 31, 2007, and February 12, 2007 reflect follow-up treatment for this condition. The Veteran was cleared for full duty on January 31, 2007, although the clinician noted that the Veteran still experienced discomfort when inverting his left foot, and continued the assessment of Achilles tendonitis. According to a post-deployment health reassessment from March 2008, the Veteran endorsed muscle aches; however, further detail was not provided. This service connection claim was previously denied on the basis that the condition preexisted service. The sole evidence referenced by the RO and the VA examiner to support this conclusion was a single notation in the service treatment records of a prior injury from "11jan06." However, upon careful review of the record, the evidence strongly suggests that this notation contains a typographical error as to the year. First, the Veteran reported in his January 2009 application for service connection that his left Achilles tendon condition began on January 11, 2007, and that he received treatment through January 25, 2007. The first service treatment report documenting the injury was dated January 16, 2007, and it noted a prior injury from "11jan06." According to this treatment note, the Veteran "still" had some complaints with weight bearing on the left ankle, and the clinician's findings reflect a continuation of a recent injury rather than a new injury on that date. The record otherwise reflects that the Veteran has not reported ever receiving a prior left ankle injury, and there is no other evidence of such occurring on 11jan06, which is a very specific date to purportedly have been recalled one year after the fact (i.e. on January 16, 2007). In short, the evidence strongly suggests that there was no preexisting left Achilles tendon injury, and that the single notation on a January 16, 2007 service treatment record was a typographical error. At the least, VA has not rebutted the presumption of soundness because the evidence is not "clear and unmistakable" that an injury preexisted service. The Veteran has been diagnosed with left Achilles tendonitis, and service treatment records reflect treatment for the same condition. The Veteran filed his service connection claim shortly after his discharge from active service, and he has competently reported left ankle symptoms since the injury in service. As the Veteran was evaluated as normal at service entrance, and since the evidence does not clearly and unmistakably show that his left Achilles tendonitis both existed prior to service and was not aggravated by service, the criteria for service connection for this disability have been met. ORDER Service connection for left Achilles tendonitis is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs