Citation Nr: 18124167 Decision Date: 08/07/18 Archive Date: 08/06/18 DOCKET NO. 15-33 295 DATE: August 7, 2018 ORDER New and material evidence has been submitted to re-open a claim for entitlement to service connection for alcoholism and, to this extent only, the claim is granted. Entitlement to service connection for alcohol dependency is denied. FINDINGS OF FACT 1. The June 1991 rating decision that denied the Veteran’s claim for alcoholism was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final June 1991 rating decision is new and raises a reasonable possibility of substantiating the claim. 2. The Veteran’s claimed alcohol dependency is the result of his own willful misconduct or alcohol abuse in service. CONCLUSIONS OF LAW 1.The June 1991 rating decision that denied the Veteran’s claim for entitlement to service connection for alcoholism is final; however, new and material evidence has been received and, as such, the claim for service connection for alcohol dependency is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Service connection for alcohol dependency is precluded as a matter of law. 38 U.S.C. §§ 105 (a), 1110; 38 C.F.R. §§ 3.1(m), 3.301, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. 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 must raise a reasonable possibility of substantiating the claim. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for alcoholism in May 1991 that was denied in a June 1991 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the June 1991 decision became final. In August 2011, the Veteran filed a petition to reopen the claim for alcohol dependency. New evidence submitted since the final June 1991 decision includes multiple lay statements and an October 2004 private medical record from Dr. K.W. noting an assessment of alcohol dependence. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection The Veteran seeks service connection for alcohol dependence. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the appeal must be denied. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(m), 3.301(a). Compensation cannot be awarded either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). “Primary” means an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Id. VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a Veteran’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOPGCPREC 2-98 (1998), published at 63 Fed. Reg. 31,263 (February 10, 1998). The Veteran’s claim for direct service connection for alcohol abuse must be denied as a matter of law. The law states that service connection cannot be established on a direct basis for a disease or injury that results from a claimant’s abuse of alcohol or drugs if, as here, the claim was filed after October 31, 1990. 38 C.F.R. §§ 3.1(m), 3.301(a). Here, the claim was filed after October 31, 1991. Additionally, the evidence indicates that the Veteran’s alcohol dependency is a primary alcohol abuse disability. The preponderance of the evidence indicates that the Veteran’s alcohol dependence arose from voluntary and willful drinking in excess. See, e.g., October 2004 Private Medical Record; November 2011 Statement; August 2015 Substantive Appeal. Further, service connection is not in effect for any disabilities. Likewise, the Veteran not asserted that alcohol dependence is secondary to a disease that may be service-connected. Where the law is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. Accordingly, for the reasons discussed herein, the Veteran is not entitled to service connection for alcoholism and the claim must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel