Citation Nr: 21072254 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-22 311 DATE: December 2, 2021 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 from July 1962 through November 1965. The Veteran presented sworn testimony before the undersigned Veterans Law Judge in a March 2019 videoconference hearing. A transcript has been associated with the claims file. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c)(1). Most recently, the Board denied the above-listed claim in a June 2020 Board Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC issued an order granting the parties' April 2021 Joint Motion for Remand (JMR) to set aside the June 2020 Board Decision and remanded the case back to the Board for compliance with the JMR. Subsequent to the JMR, the Veteran's representatives submitted a written brief attaching a September 2021 private psychiatric evaluation as well as various records supporting the Veteran's claim regarding in-service events. The Veteran, through his representatives, waived AOJ consideration of the written brief "and the enclosed evidence." Therefore, remand is not required based on the submission of additional evidence. 38 C.F.R. § 20.1305. However, for reasons discussed below, the Board finds remand is appropriate. The April 2020 JMR directed the Board to reconsider the Veteran's claim and "adequately address the probative weight of the May 2020 private psychological assessment, taking care to address the private examiner's explanations as to why [the Veteran] minimized his psychiatric symptoms." The Veteran has now submitted an updated opinion from that same private psychiatrist. Moreover, the private psychologist's updated opinion is based in significant part on military records related to the duties and activities of the Veteran's unit during deployment to the Republic of Vietnam. The Board finds that there is insufficient evidence to permit a comparison of the probative value of the September 2021 private psychiatrist's opinion versus that of prior VA examiners. Specifically, the private psychiatrist asserts that the new military records provide significant evidence in support of the claim. The Board notes that VA had already established, based on the Veteran's reports and other records, "the Veteran's claimed stressor of fearing for his life due to combat and/or terrorist activity in Vietnam." See June 2020 Board Decision (citing October 2013 VA administrative decision). It would be helpful to obtain an updated opinion from a VA examiner to discuss whether the new records (and the updated private opinion) impact the prior etiological conclusions of the VA examiners and, if so, how. Moreover, the private psychiatrist has directly addressed the prior VA examiner's opinions and provided additional explanation for why the contemporaneous records reflect far more mild symptoms than the severe symptoms the Veteran and his lay witness now claim he has been experiencing since his service in Vietnam. It is beyond the province of the Board to make a medical determination as to whether the private psychiatrist's opinions are supported by the clinical evidence, but the VA examiner's opinions create a conflict in the evidence that requires additional medical opinion evidence to resolve. In short, an updated VA examiner's opinion would be helpful in resolving numerous factual issues. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the Present. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the conceded stressor of fearing for his life due to combat and/or terrorist activity in Vietnam (specifically, receiving incoming fire from the enemy and witnessing fellow service members being injured while making supply drops into combat zones via airdrop). It would be helpful if, in rendering the requested opinion, the VA examiner commented on areas of agreement or disagreement with the September 2021 private psychiatrist's opinion, the May 2020 private psychiatrist's opinion, and the November 2013 VA examiner's opinion, particularly with respect to the etiology of the Veteran's diagnosed acquired psychiatric disorder. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.