Citation Nr: 1756442 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-01 590 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for alcohol abuse. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984, at which time the Veteran was discharged under honorable conditions based on his failure to rehabilitate from alcohol abuse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the VA RO. FINDINGS OF FACT 1. An unappealed June 2002 rating decision denied the Veteran's claim of entitlement to service connection for alcohol abuse; the Veteran did not file a notice of disagreement or submit new and material evidence within a year of this rating decision. 2. The evidence received since the June 2002 rating decision is cumulative and redundant, does not relate to unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for alcohol abuse. CONCLUSIONS OF LAW 1. The June 2002 rating decision denying the Veteran's claim of entitlement to service connection for alcohol abuse is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for alcohol abuse. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In the context of a veteran's request to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and must provide notice that describes the evidence necessary to substantiate the element or elements required to establish service connection that were not found in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with all appropriate notification in April 2012. The Veteran has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, adjudication of the Veteran's claims at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2017). The evidence contains the Veteran's service treatment records and all pertinent and identified post-service treatment records. VA has not obtained a medical opinion in this case. VA is not required to provide a medical examination of a claimant seeking to reopen a previously and finally disallowed claim unless new and material evidence had been presented. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-1343 (Fed. Cir. 2003) (holding that "in the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion"). Here, as is discussed in further detail below, a medical opinion is not required because new and material evidence has not been received. The Veteran requested a hearing before the Board, and the Veteran was scheduled to receive such a hearing in May 2017. At the Veteran's request, his hearing was rescheduled to occur in June 2017. The Veteran again requested that his hearing be rescheduled, and the Veteran's Board hearing was moved to September 2017. The Veteran failed to appear for this hearing, he has not presented good cause for failing to appear at this hearing, and he has not requested that VA reschedule the hearing. The Board thus considers the Veteran's request for a hearing to have been withdrawn. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C. § 5108 (2012); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017); Smith v. West, 12 Vet. App. 312 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As an initial matter, the Board notes that service connection is available for a substance abuse disability only when there is clear medical evidence establishing that such disability is caused by a service-connected disability, and where the alcohol or drug abuse disability is not due to willful misconduct. 38 U.S.C. § 1110; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In other words, compensation is not available for alcohol abuse as a primary disability, or "disability arising during service from voluntary and willful drinking to excess". Allen, 237 F.3d at 1376. The Veteran's claim of entitlement to service connection for alcohol abuse was last denied in a June 2002 rating decision, which found that the primary abuse of alcohol was not a disability subject to service connection. The Veteran did not appeal the June 2002 rating decision, no evidence was received within one year of the June 2002 rating decision, and no new service records have been submitted. Therefore, the June 2002 rating decision is final. Since June 2002, the additional evidence added to the record consists of the Veteran's statements again seeking service connection for alcohol abuse on a direct basis. In July 2012, the Veteran stated that his military service caused his alcohol abuse, arguing that he would not have become addicted to alcohol had a large volume of alcohol not been made available to him during service. Additional VA treatment records have been added to the record demonstrating the Veteran's continuing treatment for alcohol abuse. The Veteran is not in receipt of service connection for any disabilities, and he has only argued that his alcohol abuse is directly related to his service. Thus, the evidence added to the record is not new and material because it merely repeats the Veteran's allegations that his alcohol abuse is directly related to service. The primary abuse of alcohol is not a disability subject to compensation. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim of service connection for alcohol abuse, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER In the absence of new and material evidence, the request to reopen the previously-denied claim of entitlement to service connection for alcohol abuse is denied. ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs