Citation Nr: 21014849 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-29 758 DATE: March 15, 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 in the United States Navy from December 1981 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied this matter in April 2019. The Veteran timely appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In December 2019, the Court issued an order granting a December 2019 Joint Motion for Remand (JMR). In September 2020, the Board remanded this claim in accordance with the December 2019 JMR and ordered the RO to attempt to verify the Veteran’s claimed stressors, as well as to obtain an addendum medical opinion. This claim has since returned to the Board for further appellate review.   1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. In its September 2020 remand, the Board ordered the examiner to specifically address the following evidence of record: (a) the August 2015 private opinion; (b) the November 2016 private opinion; (c) the July 2018 private opinion; and (d) the August 2020 private opinion. The Board notes that the August 2015 private opinion should have been the October 2015 private opinion. The Board also instructed the examiner to opine on whether the Veteran had somatic symptoms or a somatic disorder in service that could be related to his current psychiatric disorder(s), despite not having a current diagnosis of somatic symptom disorder. Additionally, if the examiner found the Veteran to be diagnosed with a personality disorder and an acquired psychiatric disorder(s), the examiner was to opine on whether the acquired psychiatric disorder(s) was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. In December 2020, a VA examiner conducted a records review and provided an addendum opinion. In her opinion, the examiner noted the following evidence: (a) October 2012 medical opinion; (b) November 2012 VA examination; (c) October 2015 psychiatric evaluation; (d) July 2016 VA examination; (e) November 2016 psychiatric evaluation; (f) July 2018 private opinion; (g) November 2019 VA examination; and (h) August 2020 psychiatric evaluation. The examiner opined that the Veteran had been diagnosed with a personality disorder, somatic symptom disorder, adjustment disorder, multiple substance use disorders, and an anxiety disorder, with no evidence of in-service mental health treatment or diagnoses, and “thus, there is no link between current mental disorder symptoms and the service.” Additionally, the examiner notes that while the August 2020 private examination by Dr. V.N. diagnosed the Veteran with PTSD, this was “in the context of a private psychiatric evaluation, not a C&P exam completed by a trained VA or VA contracted clinician.” The examiner goes on to state that although Dr. V.N. diagnosed the Veteran with PTSD, “this is not sufficient to override C&P exams of record. There is simply not sufficient data to show that a diagnosis of PTSD is accurate or that it is related to military service. Verbose reporting of history and literature does not negate the work of trained C&P examiners.” The examiner states again that there is no evidence of mental health treatment in service, and thus there is no evidence that any diagnosed mental disorders are due to or incurred by the Veteran’s military service. Although the 2020 VA examiner noted the specific examinations as instructed in the Board’s September 2020 remand, the examiner does not expand further on any of these examinations and why she considers them to be less probative than the VA examinations. While the examiner addressed some of the disorders diagnosed throughout the Veteran’s VA and private examinations, the examiner failed to address the June 2016 VA examination and November 2016 private examination that both noted no mental health disorder diagnoses. The examiner also failed to address the July 2018 private examiner’s opinion that “it is as likely as not [the Veteran] experienced the onset of the Somatization Disorder while on active duty,” instead only noting the diagnosis in her general statement of diagnoses present in the Veteran’s file. With respect to the August 2020 private examination, the December 2020 examiner states that Dr. V.N.’s opinion was “insufficient” and was merely based on “[v]erbose reporting of history and literature” and therefore less probative than the VA examinations.” However, Dr. V.N.’s private opinion notes that he reviewed the entirety of the Veteran’s service records, to include service treatment records, as well as “Veterans Administration (VA) medical records and VA administrative and VA service connection processing and rating documents for disability determination,” which goes beyond the verbal-only history review alleged by the December 2020 examiner. Additionally, the VA examiner did not establish that Dr. V.N. was unqualified to make the diagnoses he made; instead, the examiner relies upon the fact that Dr. V.N. performed a private examination and not a VA examination. However, a private opinion is not entitled to less weight merely because the examiner does not work for VA. Accordingly, the Board finds the examiner failed to substantially comply with its September 2020 remand instructions, and therefore this matter must be remanded on these grounds as well. A remand by the Board confers on the Veteran a legal right to substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). A failure by the Board to ensure that its remand orders are substantially complied with constitutes legal error. Id. Furthermore, the December 2020 examiner stated that none of the Veteran’s diagnosed psychiatric disorders were related to service because there “is no evidence of in-service MH treatment or diagnosis, thus there is no link between current mental disorder symptoms and the service.” The examiner also concluded that Dr. V.N.’s diagnosis of PTSD was not sufficient because there “is simply insufficient data to show that a diagnosis of PTSD is accurate or that it is related to military service.” However, the examiner completely disregarded the Veteran’s lay contentions of his experiences during service, to include the following: (a) witnessing the death of fellow servicemembers on two separate occasions; (b) fear of “going 15 feet down” and fear associated with going into a pool or boat; and (c) fear of being locked up for his late/AWOL behaviors. An examination is inadequate where an examiner fails to comment on a veteran’s reports of in-service event and instead relies on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 38 (2007). Thus, because the December 2020 examiner failed to address the Veteran’s lay statements, the Board finds that examination to be inadequate and must remand in order to obtain an addendum opinion. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for an addendum opinion on the nature and etiology of his claimed psychiatric disorder(s). If the clinician determines an in-person examination (to include a telehealth examination if an in-person examination is not feasible) is necessary, one shall be scheduled. The examiner should identify all psychiatric disorders diagnosed during the appeal period (August 2006 to the present). 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 the examiner does not diagnose the Veteran with PTSD, the examiner should explain why the August 2020 private diagnosis of such is not warranted. If the Veteran is diagnosed with a personality disorder and an acquired psychiatric disorder(s), the examiner must opine whether the acquired psychiatric disorder(s) was at least as likely as not (a 50 percent or greater probability) superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease. The examiner should provide an opinion, at a minimum, for adjustment disorder and mood or depressive disorder. The examiner must specifically address and fully consider the following: (a.) Whether the Veteran had somatic symptoms or a somatic disorder in service that could be related to his current psychiatric disorder(s), despite not having a current diagnosis of somatic symptom disorder; (b.) The October 2015 private opinion; (c.) The November 2016 private opinion; (d.) The July 2018 private opinion; (e.) The August 2020 private opinion; (f.) The Veteran’s multiple statements about witnessing a fellow servicemember suffer a fatal fall from a window; (g.) The Veteran’s multiple statements about witnessing a fellow servicemember suffer a fatal gunshot; (h.) Any additional statements made by the Veteran concerning incidents in service. The examiner is to note if there is any medical reason to accept or reject any of the evidence listed above, this should be noted, and additional supporting rationale should be provided. The examiner must address the Veteran’s contentions of in-service events, as noted in (f) – (h) above, and cannot rely on the absence of evidence in the Veteran’s service treatment records alone as the basis of a negative opinion or else the opinion will be inadequate. ERIC MINE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, Associate 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.