Citation Nr: 21008607 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-03 576A DATE: February 17, 2021 ORDER Entitlement to service connection for arthritis is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for a left knee strain is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of arthritis that began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to February 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was requested on a December 2016 VA Form 9, but the Veteran’s representative withdrew this request in January 2019. In June 2019, the Board remanded the issues on appeal, in addition to entitlement to service connection for a left ankle disability, degenerative disc disease and spinal stenosis. In a September 2020 rating decision, the Veteran was granted service connection for a left ankle disability and degenerative arthritis of the lumbar spine with spinal stenosis. As this constituted a full award of the benefits sought on appeal, those issues are no longer before the Board. 1. Entitlement to service connection for arthritis is denied. The Veteran seeks service connection for arthritis. In her March 2011 claim (VA Form 21-526), the Veteran indicated that she had sustained physical difficulties during basic training which had permanently affected her. The Veteran then went on to list the physical conditions of joint knee damage, ankle fractures, depression, degenerative disc disease, and arthritis. In her subsequent communications, the Veteran did not provide further details as to her claim for arthritis. See e.g. February 2014 notice of disagreement; February 2015 VA Form 9. The Board previously remanded this claim for clarification as to the scope of the appeal. In doing so, the Board noted that it was unclear whether the Veteran’s claim for arthritis was part of the claim for degenerative disc disease and spinal stenosis. In January 2020 subsequent development letter, the RO requested that the Veteran clarify the scope of the issue. The letter was carbon copied to the Veteran’s representative. Neither correspondence was returned undelivered and there is no indication that the correspondence was not received. However, neither the Veteran nor her representative have provided additional information clarifying the claim. Given the above, the Board concludes that the Veteran has not identified any specific disability apart from her lumbar spine disability for which she planned to seek service connection. The Board is mindful that the “identification of the benefit sought” requirement does not necessitate technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Nonetheless, VA is not obligated to read a claimant’s mind, but must consider only claims that may be “reasonably encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran has provided a disability which is generally applicable to almost the entire musculoskeletal system and every joint in the body. Moreover, review of the record does not narrow the scope of the claim because the Veteran has multiple diagnoses of arthritis. The Board notes that the Veteran has diagnoses of arthritis for which service connection has already been granted, including her left ankle, left knee, and lumbar spine. The Veteran also has a diagnosis of arthritis relating to the right knee, for which service connection was denied in an unappealed March 2019 rating decision. See March 2002 treatment records. The Veteran has additional diagnoses of arthritis of the right thumb, the cervical spine, and her hands. See treatment records from April 2009 (left hand severe osteoarthritis of the basal joint of the thumb); April 2009 (acute inflammatory arthritis of base of the right thumb); March 2010 (arthritic changes at C5-C6, C6-C7); and March 2012 (arthritis of the hands). Without clarification from the Veteran, the Board is unable to discern whether her claim encompasses all, some, or none of these disabilities. Even assuming the Veteran’s claim encompassed one of the diagnoses related to her hands, neck, or thumb, service treatment records are negative for those conditions. See e.g. February 1977 medical board report. Arthritis relating to these conditions was not noted in service or within a year of discharge, and there is no evidence supporting continuity thereafter. The Veteran has not asserted any other etiology to support the claim and there is no evidence of record to support a nexus to service. Ultimately, the Veteran has not specified the symptoms, the specific disability, or even the body part for which she seeks service connection. The Board, without the assistance of the Veteran, cannot discern a more specific claim given the record before it. As such, it cannot find that the Veteran’s claim for arthritis is a disability separate from her lumbar spine disability or left ankle disability. Moreover, there is no other evidence which supports a nexus between the Veteran’s other diagnoses of arthritis and active military service. For the above reasons, there is no reasonable doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for a separate disability of arthritis is not warranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for a left knee strain is remanded. In June 2019, the Board remanded the Veteran’s left knee claim for an examination which complied with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016 and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO scheduled the Veteran for an examination in compliance with the Board’s directive in March 2020. The Veteran was informed of this examination in a letter dated in March 2020. An April 2020 deferred rating decisions reflects that the Veteran refused to report to the scheduled examination due to COVID-19 concerns. Another VA examination was re-ordered; however, a May 2020 examination request modification indicates the Veteran cancelled the examination. Generally, VA’s duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Where the Veteran fails to report without good cause, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Nonetheless, the Board notes that some consideration is due given the COVID-19 pandemic. Undeniably, the start of the pandemic in early to mid-2020 caused great hesitancy and difficulty in scheduling VA examinations. However, review of the record reflects that since at least August 2020 the Veteran has appeared in-person for a Compensation and Pension examination scheduled to evaluate her service-connected ankle disability and has also attended other routine examinations at VA medical facilities in person. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should assess any additional functional impairment in terms of the degree of additional range of motion lost. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. The Veteran is advised that failure to report for any scheduled VA examinations without good cause shown may have adverse effects on her appeal. See 38 C.F.R. § 3.655. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.