United States Department of Labor

Employees’ Compensation Appeals Board

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K.P., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS,

SAN DIEGO VA MEDICAL CENTER,

San Diego, CA, Employer

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Docket No. 21-1065

Issued: March 30, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a 

July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The 

Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.

On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational 

disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of 

factors of her federal employment including repetitive use of a computer, keyboarding, and 

extensive dressing changes for patients. She indicated that she first became aware of her condition 

and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for 

right-sided thoracic outlet syndrome, also known as brachial plexus lesions.

On November 18, 2009 appellant underwent a right first rib resection with right anterior 

scalenectomy to treat her diagnosed right thoracic outlet syndrome.

In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist, 

diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome 

(CRPS), of the upper right limb, and myofascial myalgia and myositis.
2

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD 

secondary to thoracic outlet syndrome despite surgical intervention. 

Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed 

response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right 

hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on 

exertion.

In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,

myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right 

diaphragmatic paralysis secondary to thoracic outlet surgery.

In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with 

increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic 

paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic 

pain. She opined that factors of appellant’s federal employment caused appellant’sincreased pain. 

Dr. Carlin recommended work restrictions.

In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,

myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper 

extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed 

thoracic outlet syndrome with poor results after surgical intervention, flare-up of chronic 

cervicalgia and myofascial pain syndrome,RSD of the right upper extremity, also in flare-up, and 

recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress 

notes dated August 22, 2014.

In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s 

claim be expanded to include fibromyalgia. She explained that it had developed as a result of 

appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic 

outlet syndrome and secondary RSD.

In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from 

thoracic outlet syndrome with increased pain following failed surgical intervention, along with 

RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been 

diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that 

appellant’s conditions continued to be medically present and disabling and that appellant was 

permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in 

narrative medical reports dated June 27, 2016 and July 17, 2017.

In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of 

present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic 

outlet syndrome, and development of RSD of the right upper extremity.

In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with 

increased pain following surgical intervention, RSD of the right upper extremity, which began 

after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing 

some dyspnea on exertion, also a result of the failed surgery, and recurrent major depression 

exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be 
3

medically present and disabling, noting that appellant’s physical restrictions were extensive and 

unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and 

opinions in a letter dated August 20, 2019.

In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified 

rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip 

trochanteric bursitis, pain syndrome related to complications of thoracic outlet surgery with 

chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.

In a development letter dated March 24, 2021, OWCP advised appellant that it had received 

notification of a possible consequential condition of CRPS of the right upper extremity. It noted 

receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description 

of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical 

evidence. No additional evidence was received by OWCP.

By decision dated May 3, 2021, OWCP denied appellant’s request to expand the 

acceptance of her claim to include CRPS of the right upper extremity. It again referenced

Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on 

June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021, 

OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that 

appellant’s case had been considered in relation to the issues involved and that the issues could be 

equally well addressed by requesting reconsideration and submitting evidence not previously 

considered establishing that she sustained a consequential injury due to her accepted injury of 

March 3, 2008.

The Board has duly considered the matter and finds that this case is not in posture for 

decision. 

In the case of William A. Couch,

1

the Board held that when adjudicating a claim OWCP is 

obligated to consider all evidence properly submitted by a claimant and received by OWCP before 

the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated 

May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous 

reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing 

diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit 

decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of 

record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818 

(issued April 3, 2018).

2 OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision. 

Evidence received following development that lacks probative value also should be acknowledged. Whenever 

possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 --Claims, 

Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).
4

As Board decisions are final with regard to the subject matter appealed, it is crucial that 

OWCP address all relevant evidence received prior to the issuance of its final decision.3 On 

remand shall review and consider all evidence properly submitted by appellant prior to the issuance 

of the May 3, 2021 OWCP decision. Following other such further development as deemed 

necessary, OWCP shall issue an appropriate decision.

IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this order of the Board.4

Issued: March 30, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

3 E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25, 

2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); WilliamA. 

Couch, supranote 1.

4 As this case is remanded for further proceedings, the July 1, 2021denial of appellant’s request for an oral hearing 

before an OWCP hearing representative is rendered moot.