Citation Nr: A25035334 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240102-405718 DATE: April 16, 2025 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The Veteran does not have a current psychiatric disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to June 1971, which included service in Vietnam. He was then a member of the Army Reserve/Individual Ready Reserve until 2009. In the January 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on December 18, 2024. The Veteran was unable to attend the hearing, but his representative presented argument on his behalf. The Board may only consider the evidence of record at the time of the May 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review in September 2023, as well as any evidence submitted at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Here, neither the Veteran nor his representative submitted evidence at the hearing or within the 90 days following the hearing. Although new VA treatment records were added to the claims file within that period, the Board cannot consider them because they were not submitted by the Veteran or his representative, and VA's evidentiary rules are quite clear on this point. 38 C.F.R. § 20.302(a)(3). If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In the September 2023 higher-level review rating decision, the AOJ implicitly found new and relevant evidence was received and denied the claims on the merits. Thus, the Board will only review the merits. The Veteran seeks service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). After consideration of the evidence, the Board finds that service connection is not warranted because there is no competent evidence of a psychiatric disability. The Veteran was afforded a VA PTSD examination in February 2018. The examiner concluded the Veteran did not have a PTSD diagnosis nor another mental health disorder that conforms with the DSM-5 criteria. The Board considered the argument made by the Veteran's attorney during the Board hearing that the VA examiner diagnosed the Veteran with a severe stress reaction based on the code used in the VA examination report. Regardless of the code the examiner used, it is clear from the examination report that the examiner's opinion was the Veteran had no mental health diagnosis per the DSM-5. On page 11 of the report, the examiner wrote multiple times that a medical opinion was not applicable because "the veteran does not have any mental disorder being diagnosed today." The Board thus finds that this examination report does not demonstrate a psychiatric disability. The Veteran's VA treatment records date to 2011. He denied psychiatric symptoms and depression and PTSD screenings were negative until October 2017, at which time he reported a history of PTSD and depression as part of a pre-surgery evaluation. He underwent an Agent Orange assessment later that month. The provider documented "? PTSD, in process of workup" for psychological history. The VA records thereafter do not show any "workup" nor reference treatment by any private mental health professional. Moreover, all of his VA treatment records are negative thereafter for a mental health diagnosis, all depression and PTSD screenings were negative, and he denied depression in September 2019, March 2022, August 2022, December 2022, and February 2023 treatment visits. The Veteran's attorney argued that the Veteran's VA treatment records show an anxiety disorder related to his prostate cancer. The Board disagrees with this characterization. His VA treatment records show a "nursing diagnosis" of "anxiety related to surgical procedure" in January 2022 related to a kidney procedure. The record noted that the nurse's goal was to reduce anxiety and promote relaxation and the outcome was achieved. He was similarly given a "nursing diagnosis" of a "potential anxiety related to procedure" in May 2022 due to a lung nodule biopsy and in March 2023 for a left thyroid biopsy related to elevated thyroid test results. The goal for both visits was to "reduce anxiety and promote relaxation," and the records note that outcome was achieved. Thus, none of these records show an actual diagnosis of an anxiety disorder by a mental health professional, as opposed to a patient experiencing anxiety prior to a surgical visit. It also does not trigger VA's duty for a medical examination as it is not competent medical evidence of a current diagnosed disability per the criteria in 38 C.F.R. § 4.125. Instead, it was clearly documented as "potential anxiety" specific to a medical procedure and any potential anxiety was alleviated at that time. Furthermore, there is no evidence of persistent or recurrent psychiatric symptoms to warrant a new examination. See 38 C.F.R. § 3.159(c)(4)(iv). All other records are negative for a diagnosis or persistent symptoms. Finally, the Board considered the argument that there are outstanding service and post-service treatment records, and a remand is necessary. Although the Veteran's attorney argued that the Veteran's reserves records are not in the claims file, they were uploaded to the claims file on December 10, 2009 and contain examinations from when the Veteran was in the Reserve. Regarding post-service records, the evidence does not show that there are outstanding relevant records. Instead, the evidence shows any outstanding non-VA records stored in VistA are irrelevant to the issue of a current psychiatric disability diagnosis, including a Mohs surgery from November 2017, an October 2022 record that shows a radiation oncology appointment was made and later canceled, and a November 2022 ultrasound of the head and neck. The Board argument also did not suggest that there was outstanding treatment for a mental health disorder in those records. Accordingly, remanding this claim to obtain such records would only delay the decision with no benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Service connection may only be granted for a current disability; when the claimed condition is not shown, there may be no grant of service connection. Because the competent medical evidence shows no current disability, the claim for service connection for an acquired psychiatric disorder is denied. Again, this decision can only be based on the evidence that was before the AOJ when the claim was denied in May 2023, as no evidence was submitted by the Veteran or his representative within the 90-day period following the hearing. The May 2023 rating decision noted that the Veteran was deployed to Vietnam, so it is conceded his service included exposure to hostile military or terrorist activities, but denied the claim due to lack of a diagnosis. If the Veteran has evidence of a diagnosis of a mental health condition by a medical professional, then he is encouraged to file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.