Citation Nr: 21008223 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 99-08 912A DATE: February 12, 2021 REMANDED An initial rating in excess of 20 percent for hypertension on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from July to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2005, the Veteran testified during a Board hearing held at the RO before the undersigned. A transcript of that hearing is of record. In August 2005, April 2009, July 2010, April 2012, January 2013, and July 2017, the Board remanded the case for additional development. Of note, in the July 2017 Board decision, the Board denied a higher schedular rating for hypertension and remanded the matter of entitlement to an extraschedular rating for that disability to be referred for consideration by the Director of Compensation and Pension (Director), pursuant to 38 C.F.R. § 3.321(b)(1). In February 2018, the Director issued a determination denying an extraschedular evaluation for the Veteran’s hypertension. In June 2018 the Board denied an initial rating in excess of 20 percent on an extraschedular basis and remanded the issue of total disability based on individual unemployability (TDIU) on an extraschedular basis to the Agency of Original Jurisdiction (AOJ) for additional development. Because the AOJ is still undertaking this development with respect to the TDIU issue, it is not currently before the Board. The Veteran appealed the June 2018 denial of an initial rating in excess of 20 percent on an extraschedular basis to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, the Court granted a Joint Motion for Partial Remand (Joint Motion) which vacated the denial of an initial rating in excess of 20 percent on an extraschedular basis and remanded the claim to the Board for action consistent with the Joint Motion. The rest of the June 2018 decision was not disturbed. In December 2020, the Board received the Veteran’s attorney’s waiver of RO consideration of the evidence submitted with the December 2020 correspondence. However, the claims file contains additional evidence obtained by the AOJ since the March 2018 supplemental statement of the case (SSOC). This evidence has not been considered by the AOJ, and there is no automatic waiver for evidence obtained by VA. Finally, the Board notes the Veteran’s attorney has requested an extension of time to submit additional evidence and/or argument with respect to the issue of a compensable rating for headaches. As such, that issue will be addressed later, in a separate decision. 1. An initial rating in excess of 20 percent for hypertension on an extraschedular basis is remanded. Since the March 2018 SSOC, VA obtained additional pertinent evidence including a file of Social Security Administration records of examination and award of disability benefits and VA treatment records with no waiver of consideration by the AOJ. 38 C.F.R. § 20.1304. Therefore, a remand is necessary to consider this evidence in the first instance. While the appeal is in remand status, the RO should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103(b). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After review of the new evidence, consider whether any additional VA examinations are necessary, and if so, obtain those examinations and opinions. 3. After completion of the above, the claim should be reviewed considering any new evidence. If the claim is not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.