Citation Nr: 18150997 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-41 514 DATE: November 16, 2018 ORDER The petition to reopen the claim of entitlement to service connection for right leg peripheral neuropathy is granted. The petition to reopen the claim of entitlement to service connection for left leg peripheral neuropathy is granted. REMANDED The issue of entitlement to service connection for right leg peripheral neuropathy is remanded. The issue of entitlement to service connection for left leg peripheral neuropathy is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, the claims of entitlement to service connection for right and left leg peripheral neuropathy were denied on the grounds that the Veteran was not entitled to presumptive service connection because peripheral neuropathy did not become manifest to a degree of 10 percent or more within a year of the last date on which he was exposed to an herbicide agent during active duty service and was not entitled to direct service connection because treatment records showed that peripheral neuropathy was caused by alcohol dependence, which was willful misconduct that could not be service connected. 2. The evidence added to the record since the March 2012 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied entitlement to service connection for right and left leg peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. Because the evidence received after the March 2012 rating decision is new and material, the requirements to reopen the claim of entitlement to service connection for right and left leg peripheral neuropathy have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to February 1968, with service in the Republic of Vietnam from April 1965 to November 1965 and from January to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Claims to Reopen In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulations, “new” evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). “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. Id. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the Veteran is claiming entitlement to service connection for peripheral neuropathy of his right and left legs. His claims were previously denied in March 2012. The RO determined that the Veteran was not entitled to presumptive service connection because the peripheral neuropathy of the Veteran’s right and left legs did not become manifest to a degree of 10 percent or more within a year of the last date on which he was exposed to an herbicide agent during active duty service. The RO also denied the Veteran’s claims on a direct service connection basis, finding that the peripheral neuropathy of his right and left legs was caused by alcohol dependence, which was willful misconduct that could not be service connected. The Veteran did not appeal the March 2012 rating decision, nor did he submit any new and material evidence within a year of receiving it. This represents the last final denial of the Veteran’s claims seeking service connection for peripheral neuropathy of his right and left legs. After a review of the evidence submitted since the March 2012 rating decision became final, the Board determines that the claim should be reopened. Specifically, since the March 2012 rating decision, the Veteran has asserted that the peripheral neuropathy of his right and left legs is secondary to service-connected posttraumatic stress disorder (PTSD). The evidence now includes an April 2017 rating decision that granted the Veteran’s claim seeking service connection for PTSD and new medical evidence. The medical evidence submitted since the March 2012 rating decision includes the September 2012 opinion of the Veteran’s private physician, which indicates that the Veteran’s alcohol dependence is attributable to his PTSD. The record also contains VA treatment records indicating that peripheral neuropathy has been caused by alcohol abuse. This evidence is “new” because it was not of record prior to the last final denial of the Veteran’s claims, and is “material” because it relates to an unestablished fact necessary to support his claims. Indeed, the record reflects that the peripheral neuropathy of the Veteran’s right and left legs might be secondary to the his now service-connected PTSD. Therefore, the claims for service connection for neuropathy of the right and left legs should be reopened on this basis. Shade v. Shinseki, 24 Vet. App. 110, 118-21 (2010); see also 38 C.F.R. § 3.156(a). REASONS FOR REMAND A remand of the reopened service connection claims is warranted for additional medical inquiry. Evidence of record indicates that lower extremity peripheral neuropathy is due to alcohol abuse, and that alcohol abuse is due to service-connected PTSD. Disability resulting from alcohol abuse generally cannot be service connected because alcohol abuse is generally considered willful misconduct. See 38 U.S.C. § 105 (a); 38 C.F.R. §§ 3.1 (m), 3.303(c)(3) and (d); VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is a very limited exception to this general rule. Service connection can be awarded for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). A VA compensation examination should be conduced into the Veteran’s assertion that lower extremity neuropathy is due to alcohol abuse which is secondary to PTSD. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. Include in the record any outstanding VA treatment records, the most recent of which are dated in August 2018. All records/responses received must be associated with the electronic claims file. 2. Schedule a VA examination to determine the etiology of bilateral lower extremity peripheral neuropathy. After reviewing the claim file, the examiner should comment on the following questions: (a). Is it at least as likely as not (i.e., 50 percent or greater probability) that peripheral neuropathy is related to a disease, event, or injury during service? In answering this question, discuss the Veteran’s entire period of service, to include his presumed exposure to herbicides in the Republic of Vietnam. Although peripheral neuropathy may not be presumed related to service based on the facts of this case, a medical opinion should nevertheless comment on whether the late onset peripheral neuropathy here is due to service. (b). If the response to (a) is negative, is it at least as likely as not that bilateral lower extremity peripheral neuropathy is due to or caused by service-connected PTSD? In answering (b), comment on the Veteran’s assertion (supported by a private medical opinion) that PTSD caused alcohol abuse. Also comment on the Veteran’s assertion (supported by VA treatment records) that alcohol abuse caused peripheral neuropathy. (c). If the responses to (a) and (b) are negative, is it at least as likely as not that lower extremity peripheral neuropathy has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected PTSD (to include any alcohol abuse you find secondary to PTSD)? (Continued on the next page)   If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disorder(s). CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel