Citation Nr: 0115163 Decision Date: 05/31/01 Archive Date: 06/04/01 DOCKET NO. 00-25 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for reflex sympathetic dystrophy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD William W. Berg, Counsel INTRODUCTION The veteran served on active duty from March 1975 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that denied service connection for reflex sympathetic dystrophy (RSD). In an extensive written argument dated in April 2001, the veteran's representative classifies the issue as entitlement to service connection for a neurologic or vascular disorder. The sole issue developed for the Board's consideration is service connection for RSD. The more broadly defined issue, as characterized by the representative, has not been addressed by the RO and is referred to the RO for action as set forth below. REMAND It is essentially contended that the veteran is entitled to service connection for RSD because he first experienced symptoms of this syndrome in service but was not properly diagnosed at that time. The record indicates that the veteran was seen in service in January 1976 for complaints of very red skin, especially of the hands and feet, with some accompanying pain in his feet, of two months duration. The redness was present all the time, but his feet were painful only when he stood on them. An examination showed cherry red erythema that blanched easily and refilled readily. He was currently on medication. Drug-induced photosensitive vasculitis and possible idiopathic "erythromyalgia" of the lower extremities were assessed. The veteran was hospitalized the following month for evaluation of a skin rash. He gave a two-month history of erythema over the hands, arms, face, neck and lower extremities. He also complained of occasional tingling in his hands but did not relate a history compatible with Raynaud's phenomenon. Systemic lupus (erythematosus) was suspected. An examination showed a fine blanching erythema of the hands, upper extremities, thorax and proximal lower extremities. He was neurologically intact. The discharge diagnosis was erythema of unknown etiology. A dermatology consultation in June 1976 resulted in a diagnosis of "livido reticularis (or more properly livido racemosa) and brown hairy tongue." In January 1978, the veteran was seen with the complaint that his extremities were cold to touch and felt tingly. He said that moving around kept the numbness away. He was referred for a dermatology consultation with a provisional diagnosis of erythema, but a definitive diagnosis was not thereafter entered. The veteran was hospitalized in January 1978 for psychiatric complaints. A physical examination was within normal limits. He was discharged from the hospital in February 1978 with a diagnosis of anxiety reaction with depressive features. A separation examination, if performed, is not of record. However, the report of a Medical Evaluation Board dated in November 1978 is negative for any physical abnormality. The diagnosis was transient situational disturbance. A letter dated in January 1989 from Joseph V. Conroy, M.D., noted that the veteran had had two prior back surgeries at the L5-S1 level for right leg pain. Magnetic resonance imaging showed a probable recurrent disc at L5-S1, mostly on the right. In February 1989, the veteran was admitted to a private hospital for surgery for extreme leg pain in the S-1 distribution. It was reported that he had had previous surgery elsewhere, but the pain had recurred and was severe. The veteran underwent surgery, and a significant epidural scar with severe nerve root fibrosis was encountered. There was a mild degenerated disc, which was removed. It was felt to be apparent that the main problem was a scar formation. Postoperatively, the veteran did not notice any real relief in his leg pain, and he was therefore considered a candidate for a dorsal column stimulator. When seen by Dr. Conroy in September 1989, it was reported that the veteran had apparently reinjured his back about six weeks previously. He was just lying in bed and developed excruciating back pain. There was no real history of any trauma. It reached the point where he could barely walk, and he was brought to the hospital, where a CT scan showed epidural scarring. On examination, he had decreased reflex on the right side with a mild change in strength. In a letter dated in December 1990, Dr. Conroy said that the veteran's diagnosis was arachnoiditis and that this was the reason the muscle in his leg had given way and caused him to fall. In January 1991, the veteran underwent surgery to implant a morphine pump for intractable lumbar pain. Thus, the veteran's history following service was notable for lumbar disc surgeries complicated by arachnoiditis. However, it does not appear that RSD was suspected until March 1994, when Dr. Conroy again saw him. In a letter dated in June 1994, Dr. Conroy said that he had seen the veteran in his office the previous month "and he does have RSD." RSD became an ever-firmer diagnosis as Dr. Conroy treated the veteran over the years. In a letter dated in May 1998, Dr. Conroy said that the veteran had RSD and that due to severe nerve damage, he had to undergo a total abdominal colectomy and ileorectostomy in March 1998. When the veteran underwent replacement of his morphine pump in March 1999, chronic pain syndrome was diagnosed. In a statement dated in September 1994, Dr. Conroy stated that the veteran was permanently and totally disabled due to severe arachnoiditis. In a letter dated in October 1997, Vladimir Petorak, M.D., an internist, stated that the veteran had a long and complicated medical history that dated back to 1987. After back surgery, Dr. Petorak said, the veteran developed arachnoiditis, which resulted in reflex sympathetic dystrophy. The record contains a letter to Dr. Conroy, dated in May 1990, from the attorney who had represented the veteran in connection with injuries that he had sustained "as a result of his original back injury in 1987." The attorney indicated that the insurance carrier had recommended that the veteran be seen by Dr. Richard Katz, a neurologist at the Penn Diagnostic Center in Philadelphia. The record also contains a letter to Dr. Conroy from Hoover Rehabilitation Services, Inc., dated in April 1991, in which reference is made to "U. F. & G." Insurance Company (probably a reference to U. S. F. & G. Insurance Company) and information is requested regarding the veteran's prognosis and treatment. The record thus suggests that the veteran was initially treated for a back injury, and underwent surgery therefor, as early as 1987. Owing to the complex etiology of the claimed RSD, it would be helpful to obtain any available medical records of this treatment. The veteran's original claim for service connection for RSD was received in November 1999 and included the opinion of Craig N. Bash, M.D., asserting, based on a review of the record, that the veteran had RSD with symptoms that were first shown on January 30, 1976, in service. In January 2000, A VA neurologic examiner essentially concurred with Dr. Bash, adding that the veteran might have a superimposed connective tissue disease. However, in May 2000, a VA rheumatologist reviewed the evidence of record and was of the opinion that the veteran did not have RSD. Among other things, the rheumatologist explained that RSD usually involves only one extremity at a time and that the symptom of erythema had been present since 1976, prior to any injury or surgeries that the veteran had following service. RSD, it was stated, usually occurs after injury or insult to an extremity. The VA neurologic examiner signed the rheumatologist's report without explaining its inconsistency with that examiner's January 2000 etiological opinion. In April 2001, the veteran's representative submitted another opinion from Dr. Bash, who again reviewed the record. Dr. Bash was of the opinion that the veteran suffered from a type of systemic sclerosis that had not been clearly diagnosed. He also agreed with the VA neurologic examiner that there might be RSD that coexisted with another systemic disorder. Dr. Bash was of the opinion that the conditions had their onset in service. The veteran's representative expressly declined to waive initial RO consideration of the latest opinion of Dr. Bash under 38 C.F.R. § 20.1304(c) (2000) and requested that the case be remanded to the RO for further development. In addition, as noted above, the representative raised the issue of entitlement to service connection for a neurologic or vascular disorder. This issue would seem to be inextricably intertwined with the issue currently in appellate status. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue.) Hence, adjudication of the TDIU claim must be deferred pending the outcome of the intertwined issue. The Board also notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, which, among other things, eliminates the requirement that claims be well grounded and redefines the obligations of VA with respect to the duty to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099. See VAOPGCPREC 11-00 (all of the Act's provisions apply to claims filed before the effective date of the Act but not final as of that date); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). On remand, the RO must ensure that all development and notification requirements of the Act are satisfied. In view of the current posture of the case and the comprehensive scope of the Veterans Claims Assistance Act of 2000, the Board is of the opinion that further development is necessary. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for any neurologic or related disorder of the extremities at any time since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran that are not currently of record. This should include any pertinent treatment records involving his original back injury in 1987, any pertinent treatment records in the possession of U. S. F. & G. Insurance Company, and any pertinent treatment records in the possession of Dr. Richard Katz, Penn Diagnostic Center, Philadelphia, Pennsylvania. 2. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the veteran's claims file, and the veteran and his representative so notified. The veteran may also submit any medical records in his possession, and the RO should give him the opportunity to do so prior to arranging for him to undergo VA examination. 3. After associating with the claims file all available records and statements received pursuant to the development requested above, the RO should contact the VA neurologic examiner who provided the January 2000 opinion, if available, and request that the examiner reconcile the opinions provided in January 2000, and May 2000. The examiner should review the claims file and note such review in any opinion provided. 4. The veteran should be afforded an examination by a board of two physicians with expertise in the neurologic disorders described above, specifically including RSD. The examination should be conducted by physicians who have not previously examined the veteran, if possible. The examiners are requested to determine the nature and extent of any neurologic or related disorder found to be present. Any indicated studies should be undertaken, and all manifestations of current disability should be described in detail. It is requested that the examiners review in detail the claims file, including the service medical records and all etiologic opinions, confer, and provide an opinion as to whether it is at least as likely as not (50 percent probability) that the veteran has RSD and, if so, that it is attributable to service or to any incident in service. A complete rationale should be given for all opinions and conclusions expressed. 4. The RO should also review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are satisfied. 5. In connection with review of the claim currently on appeal, the RO should adjudicate the inextricably intertwined claim of entitlement to service connection for a neurologic or vascular disorder, as requested by the veteran's representative in April 2001. In so doing, the RO should undertake any development, including VA examinations with nexus opinions, that it deems advisable. Then, the RO should readjudicate the claim of entitlement to service connection for RSD. 6. If the benefit sought on appeal is not granted to the satisfaction of the veteran, a supplemental statement of the case should be issued and the veteran and his representative provided with an appropriate opportunity to respond. The veteran and his representative are reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examination requested in this remand is deemed necessary to evaluate his claim, and that his failure, without good cause, to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (2000). 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. 2000) (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. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).