Citation Nr: 21026267 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-23 201 DATE: April 30, 2021 ORDER Entitlement to service connection for a right leg disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a current right leg disability had its onset in or is otherwise related to a period of service. CONCLUSION OF LAW The criteria for service connection for a right leg disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1999 to November 1999, from January 2003 to January 2005, and from May 2009 to June 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2014, May 2015, and most recently in March 2019, the Board remanded the case to the RO for further development and adjudicative action. 1. Entitlement to service connection for a right leg disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that residuals of right leg crush injury, which are described as pain, were aggravated by active military service, to include due to carrying heavy equipment and body armor in service. The Board finds that there is a current right leg disability for VA purposes. Pain may constitute a disability for VA purposes if pain results in functional impairment in earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 16-17 (2020). The record does not contain evidence of a diagnosed right leg disorder. The Veteran contended that he has increasingly worsening right leg pain and that it gets to the point where the pain is so bad he has avoid standing at all. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s right leg pain results in functional impairment of earning capacity. Veterans are presumed sound except as to conditions noted at entry into service. 38 U.S.C. § 1111. When an entrance examination has been conducted and is unavailable, the Veteran is presumed sound. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody)). Here, it appears that the Veteran’s entrance examination for active duty in 2009 is unavailable. Furthermore, there is no indication of any residual issues of the right leg crush injury prior to deployment in June 2009. Consequently, his right leg is presumed to have been sound at entry into service. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the Veteran’s right leg disorder existed prior to service and was not aggravated by service to rebut the presumption of soundness. See VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board finds that the presumption of soundness is not rebutted. Although it is undisputed that the Veteran experienced a right leg injury in October 2008 as a result of a tree falling on his leg, there is not clear and unmistakable evidence that the Veteran’s right leg symptoms were not aggravated by service. In November 2010, a VA examiner noted that although there was no fracture shown on x-ray following the right leg injury, it is likely that there was some injury to the cortical bone such that prolonged standing causes pain localized to that area, worse when carrying a heavy load. The examiner noted no specific injury during service, but the burden of heavy body armor caused increased pain, both in intensity and frequency of occurrence. In August 2014, a VA examiner opined that residuals of a right leg injury clearly and unmistakably pre-existed service based on the October 2008 private records, as the injury predated the last period of active service. The examiner further opined that leg pain while wearing heavy body was at least as likely caused by or the result of the residuals of the October 2008 injury. In November 2019, a VA examiner opined that the October 2008 right leg contusion resolved. Based on the VA examinations, the Board finds that there is not clear and unmistakable evidence that the current right leg disability pre-existed service and was not aggravated by service. The examinations are in conflict as to whether there were symptoms of the October 2008 injury at the time the Veteran entered service in May 2009. Additionally, two examiners noted increasing pain while carrying a heavy load or body armor. As the presumption of soundness is not rebutted, the Board must determine whether it is at least as likely as not that the current right leg disability had its onset in or is otherwise related to a period of service. On multiple occasions, the Veteran reported right leg pain beginning while deployed during his last period of service, with increasing levels of pain throughout service and continuing since. The Board finds the Veteran’s statements credible in this regard. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s current right leg disability had its onset in or is otherwise related to a period of service. The claim is therefore granted. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.