Citation Nr: 21066178
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 16-34 539
DATE: October 28, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for sacroiliitis is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from September 1980 to April 1983.  

The Board remanded this issue on appeal for additional evidentiary development in March 2019 and denied it on the merits in December 2020.  The Veteran appealed the December 2020 Board decision for this issue to the United States Court of Appeals for Veterans Claims (Court).  Counsel for the Veteran and the Secretary of VA (the parties) filed a partial Joint Motion for Remand (JMR).  An Order of the Court dated August 25, 2021 granted the motion and remanded this issue to the Board.

The parties agreed that the April 2016 and December 2018 VA examination reports are inadequate because the VA examiners failed to express an opinion on whether the Veteran experienced functional loss in terms of degrees of additional range of motion (ROM) loss during flare-ups and repeated use over a period of time or provide an adequate explanation for why an estimation could not be provided.  As a result, the Board finds that additional development is needed to properly adjudicate the appeal.  See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2020); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The matter is REMANDED for the following actions:

1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of her service-connected sacroiliitis.  The entire claims file and a copy of this remand must be made available to the examiner for review.

Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision.

If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups.  If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare ups or ask him to describe the additional functional loss, if any, he has during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so.  

It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up.  

2. Then, review the examination report and any medical opinions provided to ensure that the requested information was provided.  If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures.

3. Then, readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Carter, 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.