Citation Nr: 21040889 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 09-30 390 DATE: July 7, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for ankylosing spondylitis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from June 1999 to May 2007. In May 2020, the Board of Veterans' Appeals (Board) issued a decision which, in pertinent part, denied the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for ankylosing spondylitis of the lumbar spine. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2021 Joint Motion for Partial Remand (JMR), the Secretary of the Veterans' Administration (VA) and the Appellant agreed to vacate and remand the May 2020 Board decision to the extent that it denied an initial disability rating in excess of 10 percent for ankylosing spondylitis of the lumbar spine. An Order memorializing the JMR was issued by the Court that same month. Entitlement to an initial disability rating in excess of 10 percent for ankylosing spondylitis of the lumbar spine is remanded. The parties to the JMR found that the Board did not provide an adequate statement of reasons and bases for its determination that the Veteran is not entitled to an initial disability rating in excess of 10 percent for ankylosing spondylitis of the lumbar spine. The parties concluded that the Board failed to address evidence of record that could indicate additional functional loss beyond that which was documented on examination reports and in the medical records. Such evidence includes the Veteran's reports of flare-ups during which he is unable to sit or stand, his inability to walk more than 1/8 of a mile, and the documented significant limitations on daily activities caused by this disability. On remand, the Board finds that an examination and medical opinions (current and retrospective) must be provided which adequately address all evidence of functional loss pursuant to DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected ankylosing spondylitis of the lumbar spine. 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. 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). In so doing, 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. 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). The examiner is also asked to review the examination reports from August 2008 and August 2009, which contain the Veteran's reports of flare-ups during which he is unable to sit or stand, his inability to walk more than 1/8 of a mile, and the documented significant limitations on daily activities, and determine whether, during that time he experienced additional functional loss during flare-ups or while performing activities of daily living. 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, a deficiency in the record, or the examiner does not have the knowledge or training. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.