Citation Nr: 21000524 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-23 620 DATE: January 5, 2021 ORDER Entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for a right ankle disability is granted. FINDINGS OF FACT 1. The Veteran’s left ankle strain had its onset in service. 2. The Veteran’s right ankle strain had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ankle strain have been met. 2. The criteria for service connection for right ankle strain have been met.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2007 to March 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2018 Travel Board hearing. These matters were previously before the Board in April 2019 when they were remanded for additional development. Service Connection 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a right ankle disability. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in entrance examination reports are to be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute a “notation” of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). To rebut the presumption of sound condition under 38 U.S.C. § 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) (citations omitted). In this case, the Veteran has stated that he injured his left ankle while a member of a Reserve Officers’ Training Corp (ROTC) program in January 2005. The Veteran’s personnel records include a DA Form 5973 (Army Senior ROTC Scholarship Cadet Contract) showing the Veteran agreed to be in ROTC from September 2004 through June 2006. On April 2007 entrance report of medical examination, the Veteran’s lower extremities were normal on clinical evaluation. On his April 2007 entrance report of medical history, the Veteran indicated he sprained his left ankle in January 2005. Inasmuch as a left ankle disability was not found on entrance examination, and only a pre-service indication of a left ankle disability was indicated on the entrance history report, the presumption of soundness applies in this case and it is presumed the Veteran was in sound condition upon entry into service. The Veteran’s service treatment records are silent for complaints or treatment for the right or left ankle. However, the Veteran testified at the October 2018 hearing and explained that he did not seek medical treatment because he was advised he would be “recycled,” so he continued with service without seeking treatment. Post-service treatment records show a diagnosis of bilateral ankle strain. See February 2013 VA back conditions examination. Thus, the Veteran has satisfied the first element of service connection. The Board acknowledges the negative nexus opinion provided on December 2019 VA examination. The Board finds the opinion to be inadequate in addressing the etiology of the Veteran’s left ankle disability as the examiner addressed the disability as pre-existing service. However, as noted above, the presumption of soundness applies in this case as a left ankle disability was not “noted” on service entrance examination. In addition, the Veteran is competent to report recurrent left ankle pain and instability, and the Board does not question the credibility of the Veteran’s reports of recurrent left ankle pain and instability. Accordingly, the Board finds the December 2019 VA opinion inadequate. The Board also notes that the Veteran has testified experiencing recurrent right ankle pain and instability that had its onset during active service. See October 2018 Travel Board hearing. The December 2019 VA examiner noted the Veteran reported the onset of his symptomatic right ankle disability during service and presumably subsequent similar symptomatology would be considered as first manifesting during active service. Here, in light of the competent and credible lay evidence, the Board finds that the Veteran’s diagnosed right and left ankle disabilities became manifest while he was on active duty. As such, the Board concludes that the evidence shows that the disabilities became manifest while the Veteran was on active duty and thus were incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. Inasmuch as this decision is granting service connection for a left and right ankle disability as directly related to active service, there is no need for the Board to consider any alterative theories of entitlement, such as his left ankle disability being related to his service in ROTC or his right ankle disability being secondary to his left ankle disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.