Citation Nr: 0000403 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-17 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for ankylosing spondylitis, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from June 1973 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of June 1997 and November 1997. In July 1999 the veteran appeared at the Jackson, Mississippi, RO for a videoconference before the undersigned, sitting in Washington, D.C. REMAND The appellant's contentions regarding the increase in severity of his disability constitute a plausible or well- grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Therefore, the Department of Veterans Affairs (VA) has a statutory obligation to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). Initially, we note that the RO has only considered the issue as involving the sacroiliac joint. However, a VA hospitalization from April to May 1997 included X-rays which disclosed cervical, thoracic and lumbosacral spine changes consistent with ankylosing spondylitis. In June 1978, the veteran was granted service connection for ankylosing spondylitis of the sacroiliac joint, based on medical findings including X-ray evidence of bilateral sacroiliac sclerosing and lumbosacral spine squaring of L-2, 3, 4, laboratory studies showing an elevated sedimentation rate and positive HLA-B27, and a diagnosis of ankylosing spondylitis. Ankylosing spondylitis is a systemic disease. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1566 (27th ed., 1988). Moreover, it is a form of arthritis. Id; STEDMAN'S MEDICAL DICTIONARY 1656 (26th ed. 1995). As such, it is a chronic disease, pursuant to 38 C.F.R. § 3.309(a) (1999). Where a chronic disease is service connected, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). Therefore, the entire disability, ankylosing spondylitis, must be rated, according to the affected joints. The evidence also discloses that in April 1997, the veteran jumped from a second story window, to escape a fire, and sustained fractures involving the cervical, thoracic and lumbar spinal segments. However, it is not known to what extent the veteran's overall back disability is due to ankylosing spondylitis versus the fracture residuals. For instance, a private medical evaluation, performed for the Social Security Administration (SSA), in January 1993, revealed that the veteran was unable to lie is head back on the table, lacking approximately 8 inches, as a result of ankylosing spondylitis. The diagnosis at that time, four years before the fractures, was ankylosing spondylitis with marked decrease in range of motion of the cervical spine and lumbar spine. Moreover, it is not known whether the ankylosing spondylitis played a causal role in the fractures; i.e., whether the changes in the orthopedic structure of the back due to ankylosing spondylitis led to the fractures. Consequently, the veteran must be afforded an examination to determine the level of disability due to or caused by ankylosing spondylitis. Additionally, to assist in the determination, the veteran's treatment records, both before and after the 1997 accident must be obtained, as well as the SSA records. See Holoway v. Brown, 4 Vet.App. 454 (1993). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not withstand scrutiny by the U.S. Court of Appeals for Veterans Claims (Court) (known as the United States Court of Veterans Appeals prior to March 1, 1999). Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following: 1. The RO should obtain all records compiled in conjunction with the Social Security Administration's award of disability benefits to the veteran, to include, but not limited to, the award decision and all medical records considered pursuant thereto, directly from that organization. These records should then be associated with the veteran's claims folder. 2. The RO should request that the veteran provide a list containing the names, locations, and approximate dates of treatment of any physicians, hospitals, or treatment centers (private, VA or military) who provided him with treatment for a back and/or neck disability, including ankylosing spondylitis from April 1996 to the present time. After securing necessary authorizations, the RO should obtain all records so identified. If private treatment is reported and those records are not obtained, the veteran and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1999). 3. After allowing a reasonable time for the above requested evidence to be received, but regardless of whether any additional evidence is received, the veteran should be scheduled for a VA examination to determine (1) the manifestations and severity of ankylosing spondylitis of the cervical, thoracic, lumbosacral, sacroiliac and any other affected joints; (2) whether the fractures of the back which occurred in April 1997 were causally related to ankylosing spondylitis, i.e., whether the fractures were due to the bony changes resulting from ankylosing spondylitis; and (3) the extent, if any, to which the manifestations associated with ankylosing spondylitis can be dissociated from the symptoms attributable to the fracture residuals. Only those symptoms which are clearly and solely due to the fracture residuals should be identified as such. The examination should include all necessary tests and studies. The claims file, and a copy of this Remand, must be provided to and reviewed by the examiner prior to the examination. For each spinal segment, range of motion, pain on motion, weakness, fatigability, and any other factors affecting functional ability, due to or caused by ankylosing spondylitis, should be reported. All findings must be reported in detail, and the complete rationale for the requested opinions should be provided, as such is essential to the Board's determination. If an opinion as to one of the enumerated questions cannot be provided, this should be stated, along with the reasons therefor. 4. After the development requested above has been completed to the extent possible, the RO should again review the record in light of the additional evidence, including the hearing testimony of July 1999, and the evidence submitted at that time, and rate the veteran's disability due to ankylosing spondylitis under the appropriate diagnostic codes. If the decision is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto with additional argument and/or evidence. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JEFF MARTIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals 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) (1999).