Citation Nr: 0902352 Decision Date: 01/23/09 Archive Date: 01/29/09 DOCKET NO. 05-03 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service-connection for Crohn's disease to include as secondary to service connected irritable bowel syndrome. 2. Entitlement to service connection for a right upper extremity numbness. 3. Entitlement to a disability rating in excess of 10 percent for chest pain. 4. Entitlement to a disability rating in excess of 30 percent for a cervical spine disorder. 5. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disorder. 6. Whether new and material evidence has been received to reopen a previously denied claim for service connection for chronic indigestion. 7. Whether new and material evidence has been received to reopen a previously denied claim for service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from October 1986 to November 1997. This case comes before the Board of Veterans' Appeals (Board) from rating decisions from the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a hearing before the undersigned Veterans Law Judge held at the RO in November 2008 (Travel Board). A copy of the transcript is associated with the claims folder. The matter concerning whether the issues of entitlement to service connection for a right upper extremity numbness, issues of increased ratings for chest pain, cervical spine and lumber spine disorders and new and material issues for service-connection for chronic indigestion and migraines remain in appellate status is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The veteran is currently service-connected for irritable bowel syndrome as a qualifying disability based on his Gulf War service. 2. The evidence has shown bowel problems dating back to service, with multiple episodes of treatment for gastrointestinal complaints in service, similar to those treated after service. 3. The evidence is in relative equipoise as to whether the proper diagnosis for the veteran's bowel disorder is Crohn's disease or irritable bowel syndrome. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, service connection is warranted for Crohn's disease. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159. 3.303 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection The veteran contends that he is entitled to service- connection for Crohn's disease. He is currently service- connected for irritable bowel disease (IBS) and alleges that this disorder should actually be reclassified as Crohns. Alternately he argues that the Crohn's disease is secondary to his service-connected IBS. Service connection has been in effect for IBS since an April 2003 DRO rating decision granted service connection for this condition under the provisions of 38 C.F.R. § 3.317. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic. The 6 month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)(5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98. When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Furthermore, the Court has held that the term "disability" as used in 38 U.S.C.A. §§ 1110, 1131 should refer to "any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service treatment records do not show a diagnosis of a chronic bowel disorder per se, but do reflect multiple instances of treatment for gastrointestinal problems. This includes treatment in January 1987 for rectal bleed and abdominal cramps with onset 4 weeks earlier, with 2 tablespoons of blood in the stool. Physical examination revealed positive bowel sounds, and no focal areas of tenderness. The examination was also negative for hemorrhoids either internally or externally and the assessment was normal examination. Another January 1987 record documented complaints of sharp pain in the left side of the abdomen with frequent left lower quadrant pain times 3 weeks. In January 1988 he complained of abdominal pain with no nausea and vomiting and soft watery stools the previous night. Again the physical examination revealed no significant findings other than mild tenderness on the hip, right and left lower quadrant. The assessment was possible mild gastroenteritis. He also had complaints of abdominal pain in August 1988 and diarrhea with watery stool in October 1988. In March 1992 he was treated again for gastroenteritis with symptoms of nausea, vomiting and stomachache. He was treated for diarrhea in April 1995 which was assessed as viral syndrome. In January 1996 the veteran complained of diarrhea with body ache and chills, with physical examination revealing hyperactive sounds and the assessment was gastroenteritis. In the November 1997 separation examination, the veteran said "yes" to having frequent indigestion-stomach trouble and endorsed stomach pains and cramps quite often. Service personnel records reflect service in the Persian Gulf during the Gulf War. VA examinations from February 1999 and December 2001 showed no diagnosis of bowel problems, but did show gastrointestinal complaints reported in February 1999 as chronic indigestion with a sensation of his stomach feeling if it was twisted and physical examination showing tenderness over the sternal costal junctions, but no findings of tenderness or other abnormalities of the abdomen. The December 2001 VA examination revealed complaints of his stomach feeling as though it were stabbed as well as burning, but no problems with defecation. No significant findings as per the abdomen were reported. VA and private records reveal repeated instances of problems with gastrointestinal (GI) complaints. In August 2001 the veteran went to the emergency room (ER) with complaints of body aches all over and gas pain, but no nausea or vomiting, or loose stool and his bowel movement had been brown. A January 2002 VA neurological examination primarily focused on neurological complaints with no findings or diagnosis for the abdomen. However his complaints of abdominal pain of several years duration and of unknown etiology were reported. No findings or diagnosis regarding the abdominal complaints were given. Likewise a VA respiratory examination from April 2002 was noted to include complaints of bowel problems but no diarrhea, with no findings on physical examination, but a diagnosis of irritable bowel syndrome (IBS) given. Private medical records revealed that he was seen in September 2002 for intense abdominal pain lasting for years with negative endoscopy, but now with 10+/10 pain of the midabdomen. A history of weight loss was also noted. He was assessed with chronic abdominal pain and continued weight loss of unknown etiology with differential diagnoses of questionable colitis, IBS, Crohns and underlying psychological component. Given his history of weight loss and loose stools he was sent for laboratory analysis of stool sample. Stool samples from the same month were positive for a large number of blastocystitis hominis (Blasto). He was administered a course of Flagyl for this, and in October 2002 he was noted to have improvement in his GI symptoms, but was also experiencing numbness in his hands which was deemed to be a side effect of this medication. Thus he was discontinued from this medication after 7 days as he was unable to complete the full 10 day course. However, the records from October 2002 revealed improvement in his abdominal pain and he was now eating 3 times a day and had stabilized his weight for the first time in 2 years, with a 10 pound weight gain. He still had occasional episodes where his stomach felt as though it were being ripped apart and he had some relief with Bentyl. Objective examination revealed a soft and nontender abdomen. He brought in pictures of his bowel movements which were noted to show apparent mucus on the outside. He was assessed with abdominal pain, improved with weight loss stabilized, as well as IBS. A December 2002 laboratory report was still positive for Blasto. A March 2003 VA examination for possible fibromyalgia and bowel dysfunction noted the veteran to give a history of occasional diarrhea and constipation in 1993. It also sounded as if he had possible GERD symptoms treated with antacids. The history of his treatment for Blasto was also noted and this apparently resolved with a stool sample from February 2003 apparently negative. He was continuing with alternating constipation and diarrhea with mucousy stools and was scheduled for a colonoscopy in April. Physical examination revealed no organomegaly or masses. There was mild tenderness but no deep tenderness to the abdomen and bowel sounds were normal. The assessment was that this was a Gulf War veteran with 7 months service in the Persian Gulf during Desert Storm. There were no clearly identifiable exposures although he did work in the boiler room aboard ship. He has a bowl motility disorder or IBS. He was scheduled for colonoscopy to clarify bowel disease. He was noted to be treated for Blasto in December 2002. The examiner opined that the veteran's history was suggestive of IBS. He still had symptoms even after treatment for Blasto. Therefore the examiner opined that the veteran's bowel disorder was secondary to his service in the Gulf. VA treatment from 2003 to 2004 included a January 2003 record showing main complaints of abdominal pain with loose stools, with an esophagastrodudodenoscopy (EGD) that was negative. He also had an abdominal pelvic computed tomography (CT) scan that was negative except for moderately enlarged vena cava of unclear significance. He claimed that only medication obtained from Thailand helped, and the doctor noted that the medication appeared to be simethicone. The history of Blasto was also noted and he was noted to have had unremarkable CT scan and never had a colonoscopy. Physical exam was unremarkable and he was assessed with abdominal pain relieved with Maalox and Simethecone. He was suspected to have IBS but did not want to have the sedation needed to undergo a colonoscopy. It was suggested that he have this test due to a history of loose stools and bright red blood in the past. In February 2003, plans were made for him to undergo more tests for complaints that included weight loss, abdominal pain not associated with food intake and stools that were liquid or soft and stringy. In April 2003 the veteran continued with similar complaints and was deemed to have chronic abdominal pain sounding a lot like IBS. An April 2003 telephone contact revealed the veteran to report that tests done by an outside provider were again positive for stool findings of Blasto. An addendum included a copy of the findings that were positive for 1+ Blasto, with treatment to include Bactrim for 7 days. Results from GI imaging done in June 2003 revealed no evidence of abnormality of the mucosal pattern of the small bowel, but did show a fistulous communication between 2 adjacent loops of ileum, with etiology of this finding deemed uncertain. Laboratory results from October 2003 included abnormal markers that were confirmed and were suggestive of Crohn's disease. Social Security records included duplicate or duplicative records from the VA and private providers showing treatment for abdominal pain in 2002, with treatment for Blasto also documented through December 2002 and again in April 2003. The April 2003 record showing treatment for complaints of abdominal pain and Blasto noted the doctor to recommend further GI evaluation by a specialist, and noting that Blasto is usually a carrier state not treated with antibiotics. June 2003 records revealed symptoms suggestive of IBS with alternating constipation and diarrhea. However in a private record from September 2003 the veteran was noted to have multiple abdominal complaints but with extensive negative followup and the VA. He was noted to have a fistula on small bowel follow through and the doctor suspected his GI complaints in light of this fistula may be due to inflammatory bowel disease. Scheduling was made for further studies and colonoscopy. In October 2003 the veteran has suspected Crohn's disease with a prescription of Azulfindine for Crohn's. The doctor did not want to prescribe Prednisone without more clear cut evidence on tissue analysis. Colonoscopy was recommended. The doctor noted that inflammatory bowel disease's first step marker series were suggestive for Crohn's as was the small bowel follow thru. The doctor did not wish to link other symptoms such as arthritis to Crohn's without a more definitive diagnosis with tissue analysis for Crohn's. VA GI records from October to November 2003 revealed that the veteran in a followup phone call from October 2003 informed the doctor that he had been diagnosed with Crohn's disease by an outside medical provider. The November 2003 GI followup included review of the laboratory findings from the outside medical findings including the June 2003 imaging and the October 2003 laboratory results, and following review the impression was possible Crohn's disease. Plans included a colonoscopy to further confirm this diagnosis. The results from a December 2003 colonoscopy were normal except for internal hemorrhoids. In a January 2004 followup the doctor advised the veteran that although he had some tests suggestive of Crohn's disease they were unable to confirm it through recent studies and his diagnosis remained unclear. They could not explain why he had developed any fistulous tract in his ileum as shown on small bowel imaging. The doctor advised that despite unclear findings, they would try empiric therapy for Crohn's. The report of an April 2004 VA examination reflects that it was done without review of the claims file. The veteran told the examiner that he was diagnosed in 1991 with IBS and had intermittent bowel movements with solid and liquid stools from 1992 to 1997. His condition had worsened with constant movements, and gave the history of diagnoses and treatment for Blasto, and estimated having relapsed with Blasto 5 or 6 times. He was currently treated with sulfasalazine and folic acid. He did occasionally get blood stained stools. There were no surgeries. He gave a history of recently being diagnosed with Crohn's with VA and private treatment. The serology findings and ileum imaging findings were noted to be positive for possible Crohn's. However the colonoscopy was negative with no ulcerations or abnormalities and the biopsies were also negative. He still had abdominal pain. Physical examination revealed tenderness along the abdominal area without masses or enlargement of the liver or spleen. The examiner opined that IBS and Crohn's are entirely different conditions, with IBS being a chronic functional disorder characterized by abdominal pain or discomfort with alteration in bowel habit. Crohn's was a disease of insidious onsets with intermittent bouts of low grade fever and diarrhea, right lower quadrant pain, right lower quadrant mass, tenderness, perianal disease with abscesses and fistulas and radiographic or colonoscopy evidence of ulcerations, structuring or fistula of small intestine or colon. As to the findings and blood tests that were done, this examiner's impression was that the veteran does not suffer from Crohn's disease, and that IBS fit the pattern to a greater degree than IBS does. This was based on the findings from the colonoscopy which was clear, and the bloody stools were attributed to internal hemorrhoids. There was no evidence that these 2 diseases were the same as they have totally different entities. The findings of Blasto were said to be incidental and were probably the result of his time in the Gulf War. The examiner also opined that psychosocial stressors might also be affecting his GI symptoms. Social Security records included private medical records showing that in June 2004 the veteran continued to have a lot of abdominal pain with unexplained weight loss with questionable Crohn's but with contradictory test findings of negative esophagogastroduodenoscopy (EGD) and unremarkable abdominal CT scan, versus UGI findings of fistulizing disease between 2 loops of ileum. He was assessed with abdominal pain and questionable Crohn's. In August 2004 his colonoscopy was noted to be essentially normal and terminal ileum in December 2003, but was being treated empirically for Crohn's with mesalamine. He could not tell if he was better with this treatment and the assessment was unchanged from June 2004. A September 2004 GI consult for chronic abdominal pain noted that the colonoscopy was negative and SPFT showed ileal-ileal fistula, although the radiologist here did not believe one was present. The impression was abdominal complaint with multiple somatic complaints. The doctor was skeptical of the Crohn's diagnosis given the negative colonoscopy and the CT. The SBFT and serologies were the only hard evidence of Crohn's. However the SBFT was not consistently interpreted as showing a fistula and this doctor was skeptical of serologic studies. This doctor thought that IBS was the more likely diagnosis. Nevertheless, the doctor continued to work up this case and continued to treat him with mesalamine as the veteran thought this treatment was helping. In November 2004 followup for complaints of burning pain and multiple bowel movements per day, the doctor did not believe the veteran had Crohn's and assessed abdominal pain. Again this doctor expressed that he did not believe the veteran had inflammatory bowel disease and that IBS was the more likely diagnosis. In an April 2005 VA GI consultation the veteran discussed his abdominal pain, and reported having stopped the mesalamine treatment a couple of months ago, with a history of doing alright until the past several days when he began with burning on the right. The doctor believed the veteran had a functional bowel pain and suggested waiting to see if the pain subsided on its own. However in June 2005 the abdominal pain persisted and the veteran had a distended abdomen. The veteran had extensive workup and wanted to resume taking the mesalamine used to treat Crohn's as he had terrible abdominal pain and this medication helped before. The assessment was abdominal pain and plans were made to resume this medication. Private GI records from 2005 reflect that in November 2005 the veteran underwent laboratory and colonoscopy for his chronic diarrhea with labs negative for ova and parasites and negative for occult blood. The colonoscopy results showed microscopically the ileal mucosa was edematous, congested and focally eroded, with small number of eosinophils present and some villi blunted. A moderate number of lymphplasmacytic polymorphonuclear cells were seen. Rectal mucosa was edematous, congested and infiltrated by a moderate number of mostly lymphoplasmacytic cells. The diagnosis of the ileum mucosa biopsies was chronic nonspecific ileitis and of the rectal mucosa of mild chronic nonspecific proctitis. A December 2005 medical report for hospitalization for pain over the right lower abdominal quadrant noted the veteran to say he had Crohn's disease for several years but it seemed to be in remission and did not require medication for the past few months. His colonoscopy was noted to be normal except for mild proctitis and ileitis and CT showing thickening of the appendical wall but no obvious radiological evidence of periappendical inflammation. Due to the veteran's continued symptoms of pain, the doctor performed a laparoscopy with thickening of the appendix found. A laparoscopic appendectomy was done and subsequent histopathology showed hypertrophy of musculasris without evidence of acute inflammation. The diagnosis was right lower quadrant pain and Crohn's disease. A March 2008 VA treatment note revealed the veteran to be transferring his case from a doctor in San Juan with his first visit in 3 years. The past medical history was significant for IBS versus inflammatory bowel disease. The rest of the record dealt with significant mental health issues. The veteran submitted medical evidence dated in 2008 to support his claim. Among them was a June 2008 clinical summary which referred to a January 2007 note from a Dr. P.S. The summary noted the veteran to suffer multiple medical problems developed during service, to include findings that the veteran has irritable bowel disease that was related to chronic disease diagnosis, and recommended colonoscopy. A September 2008 letter from a Dr. E.C., noted the veteran to have had abdominal pain for 4-5 years prior to consultations with Dr. P.S. in 2005, and after obtaining medical history, physical examinations and investigations, he was diagnosed with Crohn's disease, GERD, vitamin B12 deficiency and multiple tiny liver cysts. An October 2008 letter from this same doctor stated that further discussion with the veteran's attending gastroenterologist confirmed that the veteran has been diagnosed to have IBS, further differentiated as Crohn's disease. The veteran testified at his November 2008 Travel Board hearing that he has continued to be diagnosed with Crohn's disease by his private medical providers in Thailand, who he continues to seek treatment from. He acknowledged that the VA doctors continued to diagnose IBS. He testified that he had GI symptoms while on active duty which he indicated were treated with Mylanta. Based on a review of the evidence, the Board finds that the evidence is in equipoise and that service connection is warranted for Crohn's disease. There is evidence reflecting that the veteran's current bowel disorder either is due to Crohn's disease or from IBS. Although a number of doctors, particularly VA doctors and examiners have continued to opine that the veteran's symptoms are due to IBS rather than Crohn's disease, the record also contains diagnostic indicators from 2003 suggestive of Crohn's, to include the small bowel followup findings of the ileal-ileal fistula, as well as the laboratory workup showing markers for Crohn's. These findings appear to have been weighed and interpreted differently by the different medical providers, allowing for a difference of opinion by reasonable minds. Furthermore, while further testing did not confirm the diagnosis of Crohn's, he continued to be worked up empirically for Crohn's and is noted to have responded favorably to medication specifically used to treat Crohn's. Finally, while his VA medical providers diagnosed his bowel disorder as IBS, his private medical providers have continued to diagnose him with Crohn's as recently as in 2008. Thus, the evidence appears to be in equipoise and it appears that the veteran as likely as not has a diagnosis of Crohn's as a diagnosis of IBS. As such, these appear to be differential diagnoses for the same bowel disorder, thus as service-connection is in effect for IBS, service-connection could also be granted for Crohn's as part and parcel of his service-connected IBS. Moreover, as he has had evidence of bowel problems shown in his service treatment records which are similar to his post-service bowel complaints, it appears that his bowel condition of Crohn's disease can be granted on a direct basis for continuity of symptomatology rather than on a presumptive basis or a secondary basis. Thus, there is no need to address either secondary service-connection or whether this disorder falls within the criteria for a presumptive disease either under 38 C.F.R. § 3.307, 3.309 or 3.317. Resolving all reasonable doubt in favor of the veteran, the evidence supports a grant of service connection for Crohn's disease. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for Crohn's disease is granted. REMAND The Board finds that clarification is needed pertaining to the appellate status of several issues. In June 2002, the RO denied entitlement to increased ratings for residuals of head injury with headaches and dizziness in excess of 10 percent disabling, non cardiac chest pain in excess of 10 percent disabling, cervical strain in excess of 10 percent disabling, lumbar strain in excess of 10 percent disabling and service connection for a right upper extremity numbness. The RO also declined to reopen previously denied claims for service connection for chronic indigestion and for migraine headaches. Notice of this decision was sent the same month. In July 2002, the veteran filed a notice of disagreement with all these issues. The representative sent a statement the same month which requested development for appellate review as well as de novo review by a decision review officer (DRO). In September 2002, the veteran's representative sent a statement clarifying that that the veteran was filing a notice of disagreement with the RO's denial of service connection for indigestion and expanded the issue to include colitis and/or IBS, thereby expanding the claim. The representative again requested development for appellate review as well as denovo review by a DRO. In February 2003, the RO issued a statement of the case (SOC) which addressed the issues of entitlement to increased evaluations for residuals of head injury with headaches and dizziness in excess of 10 percent disabling, non cardiac chest pain in excess of 10 percent disabling, cervical strain in excess of 10 percent disabling, lumbar strain in excess of 10 percent disabling and service connection for a right upper extremity numbness. The issues of whether new and material evidence was submitted to reopen a previously denied claim for service connection for a chronic indigestion and for migraine headaches were omitted from the SOC. The veteran filed a VA Form I-9 in February 2003, thereby perfecting appeals of the issues of entitlement to increased evaluations for residuals of head injury with headaches and dizziness in excess of 10 percent disabling, non cardiac chest pain in excess of 10 percent disabling, cervical strain in excess of 10 percent disabling, lumbar strain in excess of 10 percent disabling and service connection for a right upper extremity numbness. In an April 2003 DRO decision, service connection for IBS was granted with an initial 30 percent rating assigned. The DRO also granted increased ratings of 100 percent for head injury residuals with headaches and dizziness, 40 percent for the lumbar strain, and 30 percent for the cervical strain. Also granted was entitlement to special monthly compensation based on being housebound and dependents educational assistance. In conjunction with this rating a DRO conference report dated April 19, 2003 addressed this decision and stated as follows: "Summary of Discussion...See decision attached. Was not able to grant SC for right arm disorder but increased evaluations for other SC conditions and also for IBS which is now GW presumptive. Will this decision resolve this appeal?? THX." Thereafter the section for agreed upon action is left blank, and the conference report is signed by the DRO. There is no response from the veteran's representative whose name was typed into this conference report. There are no other communications from the veteran or from the representative to reflect that he wished to withdraw his appeal of these issues. In fact, a letter sent by the veteran on April 23, 2003 a few days after this conference appears to express his desire for a final decision, with no indication that he wishes to withdraw his appeal. Subsequent communications pertain to the claim for service-connection for Crohn's disease and while the representative in a July 2008 brief noted the current evaluations in effect for his various service-connected disorders, including the lumbar strain and cervical strain, this was for the purpose of discussing a combined rating and did not reflect intent to withdraw these pending issues. Currently the only issue clearly resolved by this April 2003 DRO decision is the 100 percent grant for the residuals of head injury with headache disorder and dizziness, thus this issue is no longer in appellate status. It also appears that this decision also resolves the pending, but not perfected claims to reopen the previously denied claims for service connection for chronic indigestion and for migraine headaches, as the veteran's representative indicated in September 2002 expanded the chronic indigestion claim to include IBS, and the adjudication of the residuals of the head injury residuals included consideration of migraine complaints. However the DRO decision did not specifically state that this decision satisfied these claims in full. As far as the issues of entitlement to increased ratings for lumbar strain and for a cervical spine disorder, the increased grants were less than 100 percent thus without any communication from the veteran or his representative stating that he was satisfied with the grants, these issues remain open. AB v. Brown, 6 Vet. App. 35, 39 (1993). The evaluation of chest pain remained unchanged and is still 10 percent disabling, and presumably pending. Likewise the issue of entitlement to service-connection for a right upper extremity numbness is still unresolved. Thus it is incumbent on the AOJ to take further action to clarify the appellate status of these issues. Accordingly, the case is REMANDED for the following action: The AOJ should contact the veteran and his representative and request a written withdrawal for the issues of entitlement to service connection for a right upper extremity numbness, issues of increased ratings for chest pain, cervical spine and lumber spine disorders and new and material issues for service-connection for chronic indigestion and migraines. In doing so, the AOJ should provide copies of the DRO rating action and conference reports. The AOJ should take appropriate follow-up action thereafter consistent with the response to such request, to include readjudication of any issues deemed not withdrawn, including issuing a statement of the case for any issues for which an appeal has been initiated but not perfected and issuing a supplemental statement of the case for any perfected issues that continue to remain in appellate status. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs