Citation Nr: 21041575 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 645 DATE: July 9, 2021 REMANDED Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a big toe, right foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1970 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter first appeared before the Board in January 2019 at which time the issues were remanded to obtain updated VA treatment records and examinations. For the reasons notes below, the Board finds that remand is warranted. 1. Entitlement to service connection for a bilateral hip condition is remanded. 2. Entitlement to service connection for a bilateral knee condition is remanded. 3. Entitlement to service connection for a big toe, right foot condition is remanded. In his May 2013 claim for service connection of the big toe, right foot condition, the Veteran stated that it occurred when he dropped a one hundred and fifty pound hydraulic actuator on his right foot while working in service and it has caused abnormal brown growth. He stated that his back, hips, and knee conditions are directly connected to his job as a Navy diver, while in service and there is no remaining cartilage on one side of the lumbar disc. In a March 2014 statement, the Veteran stated that he has only been seen by VA medical facilities for the conditions he filed service connection claims for, and he has been treated at North Florida South VA medical center (VAMC), VA Surgi-Center in Jacksonville, FL, St. Mary's CBOC and was referred to Digestive Disease Consultants in Jacksonville, FL. First, the Board notes that although a VA memo noting the directions to the VA Surgi-Center are associated with the claims file in January 2012, treatment records from the VA Surgi-Center have not been associated with the claims file. The Board observes in this regard that the United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, the Board finds that remand is warranted to obtain such records and associate those records with the claims file. Second, the Board notes that the Veteran underwent VA examinations in December 2019. For his hip condition, the examiner opined that the Veteran has hip pain, but no current diagnosed disability of the hips. Here, the Board is mindful of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. In this case, the Board is not fully informed of the extent of the disability as the record is complete nor of its relation to service. Further, the examiner also opined that the Veteran does have osteoarthritis of the right foot, big toe, but he could not find supporting documentation of the claim in service treatment records (STR's) and remarked that his osteoarthritis is at least as likely as not related to his older age. Finally, the examiner opined that while the Veteran does have significant osteoarthritis of the bilateral knees, he could not find supporting documentation of the claim in the STR's and his osteoarthritis is at least likely as not related to his older age. The Board finds that the opinions are inadequate as the examiner did not directly address the Veteran's May 2013 lay statement of a hydraulic actuator dropping on his right foot, nor his statement that his knee and hips conditions are as a result of his service as a diver. The examiner simply stated that he could not find such evidence in the STR's. In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154. Further, the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds such opinions inadequate and remand is warranted to obtain adequate examinations. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical center treatment records, including records from VA Surgi-Center, and associate those records with the claims file. 2. After the above development is complete, forward the claims file to the examiner that performed the December 2019 VA hips, foot and knees examination, or an appropriate clinician. Upon review of the claims file and the questions below, an examination may be scheduled if deemed necessary by the examiner. The examiner is asked to determine the nature and etiology of the Veteran's disabilities of the bilateral hips, bilateral knees and right foot, big toe. The examiner(s) should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. 3. Please note that an opinion based solely on the lack of documented in-service treatment or the lack of medical literature supporting a claim would not be legally adequate for the Board to decide the claim. The examiner(s) is also instructed to elicit from the Veteran a history of the claimed disabilities since service and to A) Identify any disabilities of the bilateral hips; and B) Opine whether it is at least as likely as not (a 50 percent or better probability) that ANY current disabilities of the bilateral hips, bilateral knees and right foot, big toe had their onset in or is otherwise related to the Veteran's service? The examiner is asked to directly address the medical and lay evidence of record, including the Veteran's May 2013 statement that his: 1. Big toe, right foot condition occurred when he dropped a one-hundred-and-fifty-pound hydraulic actuator on his right foot while working in service and it has caused abnormal brown growth; and (Continued on the next page) 2. Hips and knee conditions are directly connected to his job as a Navy diver while in service. A complete rationale for all opinions is required. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, Associate 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.