Citation Nr: 21029682 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-17 739 DATE: May 14, 2021 REMANDED Service connection for right collarbone condition is remanded. Service connection for right foot condition is remanded. Service connection for left foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in September 2020. As a preliminary matter, in a March 2020 statement, the Veteran requested to withdraw his appeal for the issue of service connection for residuals of right shoulder injury. However, during the September 2020 hearing, the Veteran testified that he views the right shoulder as different from the right collarbone and only wished to withdraw the issue of a right shoulder condition. Given the Veteran's testimony, the Board finds that the Veteran did not withdraw his claim for right shoulder collarbone condition and, therefore, the claim is before the Board. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant"). 1. Service connection for right collarbone condition is remanded. 2. Service connection for right foot condition is remanded. 3. Service connection for left foot condition is remanded. The Veteran contends that his right collarbone condition and his right and left foot conditions are related to service. He maintains that each of these conditions has been recurrent since service and his representative asserted that this case should be remanded to afford the Veteran VA examinations. During the September 2020 hearing, the Veteran testified that he had problems with his feet in the military and went to sick call seeking treatment. He stated that he lagged behind during forced marches, had a lot of pain in his feet following running, and his feet have continued to be a problem since service. The Veteran also testified that he cracked his right collarbone when he fell down steps while living in an apartment with his wife during service in Germany. He stated that service doctors thought it was a sprain and he was given a brace and sling to wear for six weeks. The Veteran's former spouse submitted an October 2020 statement noting her marriage to the Veteran during his time in service. She stated that the Veteran injured his collarbone and had to wear a sling for approximately eight weeks while stationed in Germany. The Veteran's service treatment records show complaints and treatment for his feet and left shoulder. See Medical Treatment Records, November 1970 and June 1971. To date, the Veteran has not been afforded a VA examination. VA has a duty to provide a veteran with a medical examination when such is necessary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Given the Veteran's competent and credible testimony and the medical evidence of record, the Board agrees with the Veteran's representative and finds that this duty has been triggered and remand is warranted for a VA examination for the Veteran's right and left foot condition and right collarbone condition. Importantly, if formal diagnoses are not found, the examiner should also note recent case law of Saunders v. Wilkie. In Saunders v. Wilkie, 866 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit found that the term "disability" as used in 38 U.S.C. §1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Therefore, if such functional impairment is shown, an opinion must also be obtained as to the question of whether it is as likely as not related to the Veteran's period of service. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any in-service and post-service bilateral foot and right collarbone conditions. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a competent medical examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to address the nature, onset and etiology of his claimed right and left foot and right collarbone conditions. The examiner should express an opinion as to whether it is at least as likely as not the claimed disability(ies) had their onset during service or are otherwise related to the Veteran's military service. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability for each of the Veteran's conditions. For any such functional impairment found to be present, the examiner should opine whether it is related to an in-service injury, event, or disease. The examiner must acknowledge and discuss the on the Veteran's competent report of having recurrent right and left foot and right collarbone pain during and since service, including the Veteran's credible report of in-service trauma. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.