Citation Nr: 21005283 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-19 176 DATE: February 1, 2021 ORDER Service connection for peripheral neuropathy of the lower extremities is granted. Service connection for peripheral neuropathy of the upper extremities is granted. REMANDED A rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran’s current peripheral neuropathy of the upper and lower extremities is related, at least in part, to his alcohol abuse resulting from his service-connected PTSD. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for peripheral neuropathy of the upper and lower extremities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to July 1977 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from June 2013 and May 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2017. A copy of the transcript is of record. This matter was previously before the Board in February 2018, at which time the issues on appeal were remanded for further development. This case has now been returned to the Board for further appellate consideration. Service Connection for Peripheral Neuropathy of the Upper and Lower Extremities The Veteran contends that his peripheral neuropathy of the upper and lower extremities is related to his presumed exposure to herbicide agents during service in Vietnam. Although no medical professional has unequivocally attributed his neuropathy to his herbicide agent exposure, the medical evidence establishes that his neuropathy is likely due to alcohol abuse, which has been attributed to his service-connected PTSD. The Board notes that alcohol dependence or disabilities caused by alcohol use are generally not disabilities for which service connection is available. The controlling precedential authority makes clear that direct service connection may not be granted for a disability that arises from a Veteran’s abuse of alcohol or drugs. Allen v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). In Allen, the Court interpreted 38 U.S.C. § 1110 as precluding service connection for disability that results from primary alcohol abuse, which the Court defined as “arising during service from voluntary and willful drinking to excess.” Id. at 1376. In conjunction with 38 U.S.C. § 105, the Court concluded that Congress expressed a clear intent to preclude service connection for a primary alcohol abuse disability, and that a primary abuse disability is included within section 105(a)’s and 1110’s “express exclusion from compensation.” Id. The Court further held that § 1110 does, however, allow for substance abuse disability under one circumstance—when the disability arises “secondarily from or as evidence of the increased severity of a non-willful misconduct, service-connected disorder.” Allen, 237 F.3d at 1378. The Court reasoned that a secondary alcohol abuse disability “results from” a line of duty disease or disability rather than as a result of abuse of alcohol or drugs itself. Id. at 1377-78. The Veteran underwent a VA examination for his PTSD in February 2013. The examiner diagnosed the Veteran with PTSD, chronic major depressive disorder, and alcohol abuse. The examiner noted that alcohol abuse is associated with maladaptive use of alcohol manifested by adverse consequences due to repeated use and opined that the Veteran uses alcohol to self-medicate his PTSD. The Veteran’s medical records show that his peripheral neuropathy may be related to his alcohol use. Notably, although the Veteran’s private physician stated that there is no clear etiology of the Veteran’s peripheral neuropathy, the physician discussed the use of alcohol and its relation to neuropathy with the Veteran. See Private Treatment Records Received December 2013. Additionally, VA treatment records state that a potential etiology of the Veteran’s peripheral neuropathy is alcohol use. See July 2012 and July 2013 VA Treatment Record. The Veteran underwent a VA examination in July 2018 for his peripheral neuropathy. The examiner diagnosed the Veteran with chronic idiopathic axonal polyneuropathy and opined that his neuropathy was less likely than not incurred in or caused by service. The rationale stated that the Veteran does not have the peripheral neuropathy highly documented due to agent orange exposure and his neuropathy did not manifest within one year of discharge. Additionally, the examiner’s rationale stated that the Veteran has been tested extensively, however the diagnosis is still idiopathic peripheral neuropathy and there is no clear etiology. The Board notes that the examiner did not provide an opinion as to whether the Veteran’s peripheral neuropathy is related to his alcohol abuse. Therefore, the Board affords the opinion limited probative value. At worse the evidence indicates the peripheral neuropathy is idiopathic, i.e. of unknown cause, and at best the evidence suggests a link between the Veteran’s peripheral neuropathy and his alcohol abuse, which has been attributed to his service-connected PTSD. The Board notes that the claim could be remanded for another medical opinion to reconcile the positive medical evidence and negative VA opinion. However, the Board finds that the competent medical evidence of record, both for and against a finding that peripheral neuropathy of the upper and lower extremities is due, at least in part, to his alcohol abuse resulting from his service-connected PTSD, is in a state of equipoise. Therefore, the benefit of the doubt will be conferred in the Veteran’s favor and remand for a VA examination and opinion is not necessary. Accordingly, service connection for peripheral neuropathy of the upper and lower extremities is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Rating higher than 50 percent for PTSD Since the issuance of the June 2019 Supplemental Statement of the Case (SSOC), new evidence pertinent to the claim for an increased rating for PTSD has been added to the record without a waiver of agency of original jurisdiction (AOJ) consideration. This new evidence consists of a May 2020 VA examination for PTSD. Therefore, remand is necessary for the AOJ to consider the additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37(a). TDIU With respect to the Veteran’s claim of entitlement to a TDIU, the claim is inextricably intertwined with the claim for an increased rating for PTSD. The claim for entitlement to a TDIU is also inextricably intertwined with the grant of service connection for peripheral neuropathy of the upper and lower extremities because the TDIU issue may be affected by the assignments of the disability rating and effective date for the grant of service connection. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Once the RO has assigned a disability rating and effective date for the grant of service connection for peripheral neuropathy of the upper and lower extremities, and completed any other development necessary, readjudicate the claims for an increased rating for PTSD and entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.