Citation Nr: 18143062 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 10-21 081 DATE: October 17, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 to December 1969. He served in the Republic of Vietnam (RVN) from May 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO, in pertinent part, denied service connection for PTSD. The Veteran appealed the RO’s June 2008 rating action and the determination therein to the Board. In July 2012, the Veteran and his spouse testified at a hearing before the undersigned at the RO. A copy of the hearing transcript is of record. In a July 2016 decision, the Board, in part, denied service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board’s July 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Memorandum Decision, the Court set aside the Board’s July 2016 denial of the claim for service connection for an acquired psychiatric disorder, to include PTSD and remanded the matter to the Board for further proceedings. The Court, in pertinent part, concluded that in denying the claim in July 2016, that the Board had erred in relying on the conclusions of VA examiners in July and December 2014 that the Veteran did not have a diagnosis of PTSD or any other mental disorder. In addition, and with respect to the claim for service connection for bilateral peripheral neuropathy of the bilateral lower extremities, the Court considered this issue to have been abandoned by the Veteran because he had not raised any arguments with respect to the Board’s July 2016 denial of the claim and it was dismissed. As noted in the preceding paragraph, according to the Court’s February 2018 Memorandum Decision, the Board had erred in its July 2016 denial of the claim for service connection for an acquired psychiatric disorder, to include PTSD because it had relied upon the inadequate conclusions of VA examiners in July 2014 and December 2014. (See July and December 2014 VA PTSD Disability Benefit Questionnaires (DBQs)). The Court found that the July and December 2014 VA examiners’ conclusions that the Veteran did not have a diagnosis of PTSD (or any other mental disorder) at either examination were not tantamount to a finding that he did not have PTSD, were not outweighed by the previous PTSD diagnoses of record and contravened the Federal Circuit’s holding in Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (finding that a medical examiner’s inconclusive opinion has no probative evidence either for or against a claim for compensation benefits. (See February 2018 Memorandum Decision). Accordingly, the Board finds that the Veteran should be provided a new VA examination for his claim for service connection for an acquired psychiatric disability, to include PTSD. Neither VA nor the Court can exercise independent medical judgment in deciding an appeal; thus, a new medical opinion must be obtained. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of any currently diagnosed acquired psychiatric disorder, to include PTSD during the appeal period. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. Identify each psychiatric disorder experienced by the Veteran; either diagnose or rule out PTSD. In determining whether or not the Veteran has PTSD, the examiner should consider VA treatment records reflecting a diagnosis of chronic PTSD, as well as opinions of VA examiners in July 2014 and December 2014 that the Veteran did not have a diagnosis of PTSD. b. For each psychiatric disability present, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset in service or is otherwise related to the Veteran’s military service, to include any claimed fear of hostile military activity. (Continued on the next page)   c. If the Veteran is diagnosed with PTSD, the examiner must identify the stressor that serves as the basis for the diagnosis. A rationale for all requested opinions should be provided. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel