Citation Nr: 1751716 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-36 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for ankylosing spondylitis with erosive sacroiliitis and resultant loss of range of motion of the lumbar spine, prior to April 28, 2014, and in excess of 20 percent thereafter. 2. Entitlement to an initial disability rating in excess of 20 percent for left shoulder dislocation with frequent subluxation. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2001 to November 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A June 2014 rating decision granted a 20 percent disability rating for the Veteran's ankylosing spondylitis with erosive sacroiliitis and resultant loss of range of motion of the lumbar spine (hereinafter, ankylosing spondylitis), from April 28, 2014. The claims were previously before the Board in June 2015, when they were remanded for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND Regrettably, another remand is necessary in this case. As discussed by the Board in the June 2015 remand, in November 2013 correspondence, the Veteran asserted that his ankylosing spondylitis should be evaluated as rheumatoid arthritis. However, information from the February 2009 Compensation & Pension Bulletin indicates that when evaluating ankylosing spondylitis, the rater must determine whether it is an active process, and if so, it should be evaluated under Diagnostic Code (DC) 5009, which directs the disability to be rated as rheumatoid arthritis under DC 5002. The Veteran underwent VA orthopedic and rheumatoid arthritis examinations in March 2016. The Board remand requested that the VA examiner comment on the current nature of the Veteran's ankylosing spondylitis, and discuss whether it is an "active process" as opposed to chronic residuals affecting the spine and other joints, to include the cervical spine. The March 2016 examiner evaluated and commented on the current nature of the Veteran's ankylosing spondylitis, including indicating that a rash on the left thumb was related to the ankylosing spondylitis and assessing the severity of the rash. However, the examiner failed to comment on whether the Veteran's disability was in an "active process" or was manifested by chronic residuals. In addition, the examiner provided no further explanation or discussion on the nature and severity of the Veteran's cervical spine complaints. Additionally, the examiner indicated that the Veteran's left shoulder disability was part of the rheumatoid arthritis condition, but again did not provide any further explanation for this conclusion. Therefore, the Board finds that the Veteran should be afforded a new VA examination (or VA examinations) with respect to the nature and severity of his ankylosing spondylitis and associated manifestations. The June 2015 Board remand also requested that the Veteran undergo an examination to evaluate the current nature and severity of his left shoulder disability because an April 2014 examination did not adequately address lay statements, including correspondence received in December 2013, in which the Veteran's mother related that it took the Veteran an inordinate amount of time to accomplish daily activities, to include putting on his shoes and tying the laces. Following the June 2015 remand, the March 2016 VA examiner also noted functional limitation in heavy physical labor to include lifting carrying, pushing, or pulling. However, the examiner did not discuss the applicable lay statements. Therefore, the Veteran should again be afforded a VA examination with respect to the current nature and severity of his left shoulder disability. As such, the Board finds that the June 2015 remand directives have not been substantially complied with, and a remand to obtain new VA examinations is necessary in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain all the Veteran's VA treatment records from November 2015 to the present. 2. Schedule the Veteran for a VA examination or examinations by an appropriate medical professional in connection with the ankylosing spondylitis and left shoulder claims. The entire file should be reviewed by the clinician. The clinician should conduct all indicated tests. The clinician should address the current nature and severity of the Veteran's ankylosing spondylitis, to include whether it is an "active process" as opposed to chronic residuals affecting the spine and any other joints. The examiner is specifically requested to address whether the cervical spine symptoms and service-connected left shoulder disability are part of an "active process" of ankylosing spondylitis, are chronic residuals of the condition, or are completely separate disabilities. The current nature and severity of the orthopedic manifestations of the lumbar spine, cervical spine symptoms, and service-connected left shoulder disability must be specifically assessed. The severity of any other manifestations of ankylosing spondylitis, including any associated rash, must also be specifically assessed. The clinician must take into consideration the lay evidence from the Veteran regarding observable symptoms, including pain, to include statements made during the March 2016 examination, and lay statements submitted in December 2013 from the Veteran's mother and two co-workers regarding observable symptoms. A complete rationale for all opinions must be provided. If the clinician cannot respond without resorting to speculation, it must be so stated and the clinician must provide the reasons why an opinion cannot be made without resorting to speculation. 3. Thereafter, readjudicate the issues on appeal in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (2012). _________________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).