Citation Nr: 21024110 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-03 128 DATE: April 22, 2021 REMANDED The claim of entitlement to service connection for a back disability is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for a heart disorder is remanded. REASONS FOR REMAND The Veteran had active service from February 1983 to February 1986 and from May 1987 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2009 rating decision by the Agency of Original Jurisdiction (AOJ). In March 2018, the Board denied service connection for sleep apnea. The issues of entitlement to service connection for a back disability, a heart condition, hypertension, and tinnitus were remanded for development of the record. In February 2020, the AOJ granted service connection for tinnitus. As such, that issue is no longer in appellate status. While the remaining issues on appeal were in remand status, a supplemental statement of the case (SSOC) was issued in February 2020. The AOJ indicated that VA treatment records dated through October 30, 2019 were reviewed. Since the issuance of the SSOC, additional VA treatment records were added to the record. In January 2021, the Board advised the Veteran that additional evidence had been added to the record since the SSOC was issued. He was offered the opportunity to waive AOJ review of this evidence by submitting a written waiver. He was instructed to respond within 45 days, and that if he did not do so, the Board would assume that he did not wish the Board to decide his appeal and remand it to the AOJ for review. No response has been received from the Veteran. Thus, remand is necessary. The Board’s current review of the record also reveals that additional development of the record is necessary. In that regard, service personnel records reflect that the Veteran was present in Saudi Arabia from September 1990 to March 1991. Service connection may be warranted for a Persian Gulf War 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 not later than December 31, 2021. 38 C.F.R. § 3.317(a). In claims based on qualifying chronic disability, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Disabilities that have existed for 6 months or more and those disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic under the regulation. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A MUCMI is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317 (a)(2)(ii). It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. A chronic multisymptom illness will not be considered medically unexplained when both the etiology and the pathophysiology of the illness is partially understood. 38 C.F.R. § 3.317(a)(2)(ii). The determination of whether the illness is medically unexplained is particular to the individual Veteran in each case. See Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018). In this case, the Veteran has been afforded VA examinations; however, they did not address whether the claimed back disability, hypertension, or heart disorder are qualifying chronic disabilities as contemplated by § 3.317. As such, additional examinations are necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all low back disabilities present. Then, the examiner is asked to respond to the following inquiries: A. As to any diagnosed back condition, is the etiology OR pathophysiology of the condition not understood AT ALL as to this particular Veteran? B. As to any diagnosed back condition, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the diagnosed condition is attributable to service? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should respond to the following inquiries: A. Is the etiology OR pathophysiology of the Veteran’s hypertension not understood AT ALL as to this particular Veteran? B. If BOTH the etiology AND pathophysiology of hypertension is understood AT ALL as to this particular Veteran, is it at least as likely as not that hypertension is attributable to service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for an examination to determine the nature and etiology of his claimed heart condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all heart conditions present. If no diagnosis is made, the examiner must opine as to whether the Veteran has symptoms that, by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. If a diagnosis is made, the examiner is asked to respond to the following inquiries: A. As to any diagnosed heart condition, is the etiology OR pathophysiology of the condition not understood AT ALL as to this particular Veteran? B. As to any diagnosed heart condition, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the diagnosed condition is attributable to service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, readjudicate the Veteran’s claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.