Citation Nr: 18152979 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 18-09 875 DATE: November 27, 2018 ORDER The September 18, 2018 Board decision addressing the issues of entitlement to service connection for an acquired psychiatric disorder, to include situational reaction, depression, anxiety and conversion disorder, service connection for hypertension and entitlement to total disability based on individual employment (TDIU) is vacated. Entitlement to service connection for an acquired psychiatric disorder, to include situational reaction, depression, anxiety and conversion disorder is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to total disability based on individual employment (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran submitted additional argument and evidence prior to the September 18, 2018 Board decision, however the evidence was not available to the Board at the time the decision was authored and therefore the decision did not consider the additional argument and evidence, denying the Veteran due process of law. 2. The Veteran does not have a current diagnosis of an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. As the Veteran was denied due process of law, the September 18, 2018 Board decision is vacated. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include transient situational reaction, depression, anxiety and conversion disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from September 1977 to September 1981. 1. Vacatur The Board issued a decision on September 18, 2018 that denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include situational reaction, depression, anxiety and conversion disorder. In August 2018, the Veteran’s representative submitted a brief to VA and through no fault of the Veteran or his representative, the brief did not reach the Board until after the September 2018 decision was issued. Subsequently, in October 2018 the Veteran’s representative filed a motion to reconsider based on the Board’s failure to consider the August 2018 brief. As the August 2018 brief was submitted timely but not considered by the Board in its decision issued in September 18, 2018, the Board hereby vacates it decision of September 18, 2018 that denied the claim of entitlement to service connection for an acquired psychiatric disorder, to include situational reaction, depression, anxiety and conversion disorder. Below, the Board reconsiders the claims herein, to include additional evidence offered by the Veteran and his representative. 2. Entitlement to service connection for an acquired psychiatric disorder, to include situational reaction, depression, anxiety and conversion disorder. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. 1131; 38 C.F.R. 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran asserts that he was diagnosed by VA with a conversion disorder and that this is related to his military service, namely to an “attack” provoked by hyperventilation. He was diagnosed with acute situational anxiety reaction during his active service. See July 9-10, 1980 Service Treatment Records (STR) Entries. In January 2015, a private licensed social worker diagnosed the Veteran with adjustment disorder with mixed emotional features, pseudoseizures/conversion reactions symptoms. The Veteran was referred for the assessment “after having what appeared to be a possible conversion reaction that was stress related.” See January 8, 2015 Aurora BayCare Medical Center Assessment. The private examiner noted the Veteran rejected the idea that his medical problems were the result of possible stress because “he sees himself as extremely calm and he describes himself as handling difficulties very well.” Id. In July 2015, the Veteran was afforded a mental health examination by VA. The VA examiner determined the Veteran has no symptoms attributable to a mental health disorder, nor does he meet the criteria for a mental health diagnosis. The Veteran denied any symptoms characteristic of anxiety or depression. In August 2016 the Veteran sought treatment with VA. The treating professional indicated the Veteran’s presentation was suggestive of a possible conversion disorder or somatic symptom disorder, but noted a further assessment was necessary. A provisional diagnosis ruling out a conversion and somatic symptom disorder was provided until further evaluation could be performed. The examiner noted the Veteran showed minimal signs of anxiety and depression. In September 2016, the Veteran followed up with VA treatment. The VA examiner noted the Veteran did not “currently have a diagnosable mental health disorder.” See September 9, 2016 Milwaukee VAMC Treatment Record. “With regard to the referral question, [the Veteran] does not demonstrate symptoms consistent with a somatic symptom disorder or conversion disorder.” Id. The examiner noted the Veteran did not endorse any features of either disorder during clinical interview and that although the Veteran experiences some anxiety and mood disruption, “these symptoms do not appear to be at a severity level to cause significant distress.” Id. The Veteran’s representative argues the July 2015 VA mental disorders examination is not adequate because the examiner failed to indicate a review of the Veteran’s private treatment records and discuss them. The July 2015 VA examiner indicated a review of the Veteran’s virtual VA records which include virtual or electronic copies of the Veteran’s private treatment records. Additionally, the VA examiner checked “other” and indicated the “Veteran’s electronic record was reviewed which included collateral information (e.g., social security disability records).” See July 27, 2015 VA Mental Disorders Examination. Failure to discuss these records is not an indication the records were not reviewed and considered. Further, failure to discuss the Veteran’s private treatment diagnosis does not render the July 2015 examination inadequate. The January 2015 diagnosis provided by the private examiner includes the Veteran’s own reports that he handles difficulties in his life well and feels relatively calm. The Veteran is competent to report feelings of anxiety and stress and he has consistently denied experiencing stress or anxiety prior to the onset of his medical problems. Therefore, the Board affords less probative value to this examination as the Veteran reports inconsistencies in symptomatology. Moreover, a social worker is less qualified than the medical professionals who have treated the Veteran on behalf of VA and rendered the opinions relied on herein. Accordingly, medical professionals have, after careful evaluation, declined to diagnose a service-connectable mental disorder at any time during the appellate period. The preponderance of the evidence being against the claim, service connection for an acquired psychiatric disorder, is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran’s STRs note that he complained of passing out and dizziness during service. The evidence of record does not show a diagnosis of hypertension or hypotension, but does indicate that the Veteran has complained of syncopal episodes since service. These episodes have been referred to as possible “pseudo seizures” or as a possible psychosomatic disorder but no origin has been established. A VA examination has not been afforded the Veteran. A remand is necessary to obtain a medical opinion as to the nature and etiology of the Veteran’s disability. See 38 U.S.C. 5103A(d); 38 C.F.R. 3.310. 2. Entitlement to total disability based on individual employment (TDIU) is remanded. The TDIU claim is “inextricably intertwined” with the service connection claim remaining on appeal and must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA hypertension examination. The claims folder must be reviewed in conjunction with the examination. The examiner should determine whether the Veteran has a disability related to blood pressure, and must opine as to whether any such disability is at least as likely as not (50 percent probability or greater) related to his active service. The examiner must consider the Veteran’s competent lay statements along with his STR entries noting complaints of “passing out” and “dizziness.” 2. Then readjudicate the Veteran’s claim. If the benefit sought remains denied, a supplemental statement of the case should be issued and the case returned to the Board for further appellate action, when appropriate. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel