Citation Nr: 21001943 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-58 007 DATE: January 12, 2021 ORDER The petition to reopen the claim for entitlement to service connection for acquired psychiatric disorder is granted to this extent only. Service connection for an acquired psychiatric disorder is denied. REMANDED Service connection for chronic fatigue syndrome (CFS) is remanded. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was denied by rating action of August 2011. The Veteran was notified and did not appeal or offer new and material evidence within one year of notice. 2. Evidence received since the August 2011 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claim and it raises a reasonable possibility and redundant and raises a reasonable possibility of substantiating the claim. 3. An acquired psychiatric disorder is not shown to be related to any in-service injury, disease or event and is not shown to be otherwise related to service. CONCLUSIONS OF LAW 1. The August 2011 rating decision that denied entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2019). 2. Evidence received since the August 2011 rating decision that denied entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably in the Navy from June 1984 to April 1988. He was subsequently a member of the Reserve. The Veteran testified at a Board videoconference in August 2020 and a transcript is of record. New and Material Evidence Generally, rating decisions that are not timely appealed are final. 38 C.F.R. §§ 20.1103, 20.1105 (2017). A final rating decision may not again be reviewed in the absence of new and material evidence. 38 U.S.C. § 7105. Unappealed rating decisions by the Regional Office (RO) are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a claimant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” Smith v. West, 12 Vet. App. 312 (1999). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The appellant seeks to reopen service connection for an acquired psychiatric disorder. Here, a claim for entitlement to service connection for an acquired psychiatric disorder was denied in an August 2011 rating decision. The Veteran was notified and did not submit any new and material evidence within one year following the decision; the denial therefore became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final rating decision, the Veteran’s evidence includes VA treatment records indicating a possible causation for the acquired psychiatric condition. In August 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans’ Law Judge. At the hearing, the Veteran’s representative cited a high voltage shock incident for which the Veteran did not receive any kind of medical attention. The representative went on to assert that the Veteran’s subsequent sleep problems and early psychiatric issues while still in the Navy are possibly attributable to the electrocution incident. Veteran asserts that his “[mind] got scrambled when [he] got the electrocution, when [he] was in that electric accident.” This evidence addresses an alternative theory of entitlement to service connection, which is sufficient reopen the claim. Review of the record reveals that in the most recent supplemental statement of the case, the RO considered the claim on the merits, and the merits were discussed at the personal hearing so the Board may proceed to the merits of this issue without prejudice to the Veteran. An Acquired Psychiatric Disorder As noted in the decision herein, the Board has reopened the Veteran’s claim with respect to this issue. It may now be addressed on the merits. According to the May 2019 examiner, the Veteran’s diagnoses included a bipolar disorder, depression, with alcohol and benzodiazepine abuse. Alcohol abuse before and during service may have been a marker of mild pre-morbid mental illness such as depression, however flagrant symptoms of schizoaffective disorder, to include frank delusions, did not become apparent until 1994. The Veteran began to have consistent problems performing at work due to psychiatric illness in 1994, and it is therefore less likely than not that his schizoaffective disorder was either incurred in, or caused by, the 1987 electrical accident on the USS Vancouver during service. The Veteran contends that he did not go to the sick bay or receive medical attention while in service because he did not want to get the electronics technician in trouble. Based on subsequent treatment records and the May 2019 VA Medical Center examination, the examiner diagnosed the Veteran with schizoaffective disorder, bipolar type, with alcohol use disorder in sustained full remission, unspecified paraphilic disorder independent of schizoaffective disorder, and borderline personality disorder, also independent of schizoaffective disorder. The examiner stated that Veteran’s schizoaffective disorder did not clearly and unmistakably pre-exist active duty service; the Veteran was ultimately deemed psychiatrically fit to service even though he reported pre-military alcohol abuse on his enlistment exam. Notwithstanding, the May 2019 VA examination cites a buddy statement that serves as evidence that the Veteran “had an incident regarding an electrical accident where he was injured on the ship while [they] were cleaning the floors as Radiom[e]n” as relevant military psychiatric history, however no causal links between the incident and the onset of Veteran’s subsequent psychiatric issues are yet to have been established. The Veteran recounts the chief electronic technician at his duty station at the time reportedly coming by after the accident and telling the veteran that he would “slowly deteriorate over time” and that he assumed that the technician was referring to a mental deterioration. The explanations contained in May 2019 VA examiner's opinion, as set forth above, are detailed and self-evident. For the reasons he states and the various pathologies he identifies, the Veteran does not have a diagnosis of an acquired psychiatric disorder incurred in or caused by active service. This opinion is given substantial probative value. The examiner thoroughly reviewed the record and considered the Veteran’s contentions. He responded in full, with a comprehensively reasoned opinion. Thus it is considered highly probative as to this issue. For the reasons stated and based on the objective medical evidence, the Board finds an acquired psychiatric disorder, is not caused by an event, injury or illness during active service. Consequently, service connection has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND CFS The Veteran also asserts that he has chronic fatigue that is related to his service onboard the USS Vancouver and a tour in Southwest Asia. Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for this condition. Significantly, the Veteran has not received any VA medical examination or similar medical opinion in reference of the chronic fatigue claim. In light of the above, additional development is required in this instance, in the form of a VA examination and corresponding medical opinion. VA must provide an addendum opinion where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes an event, injury or disease in service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159 (c)(4) (2017); McClendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). After obtaining all outstanding VA treatment records from the VA Medical Center in Bedford, a VA etiological opinion should be obtained which addresses whether the Veteran’s chronic fatigue was caused or aggravated by any service-connected events. Additionally, the Veteran has not been afforded a VA examination to determine the nature and etiology of his CFS. Therefore, the Board finds that remand is necessary to afford the Veteran a VA examination. McClendon, supra. The matter is REMANDED for the following actions: 1. Obtain all pertinent VA treatment records, to include records from the VA Medical Center in Bedford, Massachusetts. Attempts to locate the records should be documented. 2. Thereafter, forward the entire claims file in electronic records and a copy of this remand to an appropriate VA examiner for an etiological opinion. If examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran’s claimed chronic fatigue is proximately due to or the result of any service-connected incident. This should include a discussion of whether there are sufficient findings to enter a diagnosis of CFS. If so, the   etiology should be determined, to include whether it is related to service. If a diagnosis cannot be supported the reasons therefore should be clearly set out. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Omosegbon, Babalakin O. 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.