Citation Nr: 21063215 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 07-00 784 DATE: October 13, 2021 REMANDED Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to August 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2006 and in May 2007, the Veteran presented testimony at local hearings before Decision Review Officers (DRO), in part, as to the issue of entitlement to service connection for hypertension. Transcript of these hearings are of record. Additionally, in February 2010, the Veteran presented testimony at a Travel Board hearing before a Veterans Law Judge (VLJ), in part, as to the issue of entitlement to service connection for hypertension. A transcript of the hearing is of record. However, the VLJ who conducted the February 2010 hearing is no longer employed by the Board. By letter dated on December 5, 2017, the Veteran was notified of the opportunity to request another Board hearing if he so desired, and in later in December 2017, the Veteran responded he did not wish to appear at another Board hearing. Thus, the Board may proceed with appellate consideration. Entitlement to service connection for hypertension was previously before the Board. Specifically, the claim was initially before the Board in May 2010, when the Board remanded the claim for further development. In March 2012, the Board dismissed the claim; however, in May 2012, the Board vacated the dismissal of the claim and remanded the claim for further development. In June 2013, the Board again remanded the claim, and in March 2014, the Board, in part, denied the claim. The Veteran, in part, appealed the Board's March 2014 denial as to this issue to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2015, the Court granted an April 2015 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), and vacated the Board's decision, in part, with respect to this issue, and remanded the case to the Board for re-adjudication consistent with the JMR. Thereafter, in August 2015 and June 2016, the Board remanded the issue of service connection for hypertension for further development. In December 2016, the Board again denied the claim of entitlement to service connection for hypertension. In an Order dated in November 2017, the Court granted an November 2017 Joint Motion for Partial Remand (JMPR) of the parties, and vacated the Board's decision with respect to this issue, and remanded the case to the Board for re-adjudication consistent with the JMPR. Pursuant to the November 2017 JMPR, the Board again, in part, remanded the claim in February 2018 for additional development. Most recently, this claim was again before the Board in September 2019. In September 2019, the Board, in pertinent part, denied the claim entitlement to service connection for hypertension. The Veteran appealed the Board's September 2019 denial as to this issue to the Court. In an Order dated in May 2021, the Court granted an May 2021 JMPR of the parties, and vacated the Board's decision with respect to this issue, and remanded the case to the Board for re-adjudication consistent with the JMPR. This issue now returns to the Board for further review. VA correspondence dated May 20, 2021 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court. Subsequently in May 2021, the Veteran waived the Veteran waived the 90 days period. Further, the 90 day period has elapsed. Thus, the Board may proceed with appellate review. As a final initial matter, additional evidence developed by VA, to include updated VA treatment records, was associated with the record subsequent to the May 2019 Supplemental Statement of the Case (SSOC), which, in part, most recently addressed the claim herein. The Veteran did not waive Agency of Original Jurisdiction review of this additional evidence. However, as the claim herein is remanded for further development, there is no prejudice to the Veteran in this regard. 1. Entitlement to service connection for hypertension is remanded. Following the May 2021 JMPR, in an August 2021 post remand brief, the Veteran's representative raised a new theory of entitlement. Specifically, the Veteran's representative argued the Veteran's hypertension constituted a medically unexplained chronic multisystem illness (MUCMI) under 38 C.F.R. § 3.317. In this regard, a MUCMI is a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs that has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317 (a)(2)(ii). Also, an illness can be a MUCMI where either the etiology or the pathophysiology of the illness is inconclusive. See Stewart v. Wilkie, 30 Vet. App. 383 (2018) (holding VA relied on an inadequate examination when it determined a claimant's asthma was not a MUCMI when an examiner failed to address both the etiology and pathophysiology of the condition in the context of the claimant's unique circumstances). Thus, as the question of whether the Veteran's hypertension constitutes a MUCMI as defined by 38 C.F.R. § 3.317 (a)(2)(ii) has not been considered by any of the previously obtained VA opinions concerning the Veteran's hypertension, an addendum opinion is warranted. In addition, in light of the heightened duty to assist when service records are unavailable, a supplemental opinion with respect to direct service connection has been requested. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and non-VA treatment records. 2. Request the Veteran provide records of medical treatment for hypertension (or treatment for symptoms the Veteran attributes to hypertension) prior to 1999. Please provide the Veteran with information regarding authorizations for any such treatment records if he desires VA assistance in developing such records. 3. After the action in paragraphs 1 and 2 is complete, obtain addendum opinions from a suitably qualified clinician regarding the etiology of the Veteran's hypertension. The claims folder must be made available to the clinician. The clinician must address the following: a. Was the Veteran's hypertension incurred in or is it otherwise related to his active service, with consideration of the Veteran's testimony that he had headaches in service (which he believes were a manifestation of hypertension). b. Is the Veteran's hypertension, alone, or when considered in combination with his service-connected obstructive sleep apnea, unspecified depressive disorder, migraine headaches, tinea cruris and tinea pedis, postoperative duodenal ulcer disease, and anemia, a medically unexplained chronic multisystem illness (MUCMI)? Please explain and address: i. Is the Veteran's hypertension without conclusive pathophysiology? ii. Is the Veteran's hypertension without conclusive etiology? Please note that chronic multisystem illnesses with partially understood etiology and pathophysiology are not considered MUCMIs. 4. Thereafter, readjudicate the issue on appeal with review of all evidence received since the last prior adjudication of the Veteran's claim. If the benefit sought is not granted, furnish the Veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, Counsel 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.