Citation Nr: 1302293 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-37 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for beriberi, for accrued benefits. 2. Entitlement to service connection for dysentery, for accrued benefits. 3. Entitlement to service connection for malnutrition, for accrued benefits. 4. Entitlement to service connection for intestinal parasitism, for accrued benefits. 5. Entitlement to service connection for peptic ulcer disease, for accrued benefits. 6. Entitlement to service connection for irritable bowel syndrome (IBS), for accrued benefits. 7. Entitlement to service connection for a psychiatric disability, for accrued benefits. 8. Entitlement to service connection for polymyositis, for accrued benefits. 9. Entitlement to an effective date earlier than May 8, 2002 for the grant of service connection for ischemic heart disease (IHD), for accrued benefits. 10. Entitlement to a rating in excess of 10 percent for pulmonary tuberculosis with bronchiectasis, for accrued benefits. ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active military service from September 1941 to August 1942, and from October 1945 to February 1946. He was a prisoner of war (POW) from April 1942 to August 1942. The Veteran died in October 2002, the Appellant is the Veteran's surviving son. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2000 and October 2008 rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. A claim for entitlement to service connection for ischemic heart disease was received by the RO on March 8, 1999. 2. Symptoms of ischemic heart disease were first noted on private treatment records received May 8, 2002. 3. The Veteran's pulmonary tuberculosis with bronchiectasis, was characterized by FEV-1 of 103 percent predicted and FEV-1/FVC of 79 percent predicted. 4. The RO denied service connection for beriberi in May 1976; the Veteran was notified of that decision later that month and did not appeal or submit any evidence within the one year after that decision which would have allowed the claim to remain open. That decision is final. 5. Evidence submitted since the May 1976 decision denying service connection for beriberi does not bear directly or substantially upon the issue. 6. There is no credible or competent evidence that the Veteran had a current diagnosis of dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability, at any time between his date of claim and the date of his death. 7. There was no competent evidence in VA's possession on the date of death establishing that the Veteran suffered from polymyositis as a result of his military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an effective date prior to May 8, 2002 for the grant of service connection for ischemic heart disease, for accrued benefits, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.1000 (2012). 2. The criteria for a rating in excess of 10 percent for pulmonary tuberculosis with bronchiectasis, for accrued benefits, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.97, Diagnostic Codes (DCs) 6731-6600 (2012). 3. Evidence received since the May 1976 decision, which denied service connection for beriberi, is not new and material, and the Appellant's claim for service connection, for accrued benefits, is not reopened. 38 U.S.C. A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2000). 4. Dysentery was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 5. Malnutrition was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 6. Intestinal parasitism was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 7. Peptic ulcer disease was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 8. Irritable bowel syndrome was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 9. A psychiatric disability was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). 10. Polymyositis was not incurred in or aggravated by active military service, for accrued benefits. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided prior to an initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Further, the notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As a claim for accrued benefits is, by its nature, a claim for past-due and unpaid benefits, it must be adjudicated on the basis of the evidence of record at the relevant time in question, which is the evidence of record at the date of the Veteran's death. Because the Board's review is limited to evidence within that time frame, no reasonable possibility exists that further notice or assistance would aid the Appellant in substantiating the claims, and any deficiencies of notice or assistance would be moot. 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the duty to notify and assist is not required if no reasonable possibility exists that any notice or assistance would aid the Appellant in substantiating the claim). No additional notice is necessary prior to adjudication of the claims. The Board finds that no useful purpose would be served in remanding this matter for additional development as any additional evidence would be barred from consideration. There is no indication of any outstanding evidence of which VA is in constructive possession that must be obtained. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accrued Benefits Accrued benefits are benefits to which an individual was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). The claims considered in this decision were pending at the time of the Veteran's death, and had not been finally adjudicated by VA on or before the date of death. The Appellant filed a claim for accrued benefits within one year of the Veteran's death, and it was timely filed. Earlier Effective Date for Ischemic Heart Disease An October 2008 rating decision granted a 30 percent rating for ischemic heart disease, effective May 8, 2002. The Appellant contends that an effective date earlier than May 8, 2002, for the grant of service connection for ischemic heart disease is warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400 (2012). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). The Veteran separated from active service in February 1946. The Veteran submitted a claim of entitlement to service connection for ischemic heart disease that was received by VA in March 1999, more than one year after separating from service. Therefore, the assignment of an effective date the day following discharge is not warranted. Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). The RO received the Veteran's application for compensation for ischemic heart disease on March 8, 1999. Thus, that is the date of claim. The record, including the service medical records, does not show complaints of or treatment for ischemic heart disease, diagnosed as left ventricular cardiomegaly, until private treatment records were received by the RO on May 8, 2002. The diagnosis of left ventricular cardiomegaly is significant because that diagnosis has been later determined to be considered diagnostic evidence of ischemic heart disease, as shown in the October 2008 Rating Decision granting service connection for ischemic heart disease. Based on the evidence in the claim file at the time of the Veteran's death, evidence of ischemic heart disease was not shown prior to May 8, 2002. Therefore, entitlement did not arise prior to the showing that the Veteran had the disability of ischemic heart disease when private medical records were received May 8, 2002. In fact, a July 1999 VA examination reflected no objective evidence of ischemic heart disease. Therefore, the effective date of May 8, 2002, is appropriate. With respect to the earlier effective date claim, the Appellant has been granted an effective date of the date entitlement arose. The Board finds that an earlier effective date for service connection ischemic heart disease is not warranted because the standard is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b) (2012). The Board finds that there is no demonstration that entitlement arose at any time prior to May 8, 2002, for ischemic heart disease. In sum, the presently assigned effective date of May 8, 2002, is appropriate and there is no basis for an award of service connection for ischemic heart disease prior to that date. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for Tuberculosis with Bronchiectasis Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). The Board may consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Appellant is appealing the initial disability rating assigned for the Veteran's pulmonary tuberculosis with bronchiectasis. Therefore, the claim requires consideration of the entire time period involved, and consideration of staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Public Law 90-493 repealed 38 U.S.C.A. § 356 which had provided graduated ratings for inactive tuberculosis; however, the repealed section still applies to any veteran who on August 19, 1968 was receiving or entitled to receive compensation for tuberculosis. 38 C.F.R. § 4.96(a) (2012). The service-connected pulmonary tuberculosis with bronchiectasis has been rated under the criteria of 38 C.F.R. § 4.97 for Diseases of the Lungs and Pleura - Tuberculosis. That section distinguishes between ratings for pulmonary tuberculosis entitled on August 19, 1968 (Diagnostic Codes 6701 through 6724) and those ratings initially rated after August 19, 1968 (Diagnostic Codes 6730 through 6732). In this case, the Veteran was entitled to compensation for tuberculosis effective September 8, 1998. Accordingly, Diagnostic Codes 6730 through 6732 apply. The Veteran was rated under Diagnostic Code 6731. The rating criteria of Diagnostic Code 6731 are that depending on the specific findings, rate residuals as interstitial lung disease (Diagnostic Codes 6825 through 6833), restrictive lung disease (Diagnostic Codes 6840 through 6847), or, when obstructive lung disease is the major residual, as chronic bronchitis (Diagnostic Code 6600). The RO has rated the Veteran's disability under Diagnostic Code 6731-6600. The rating criteria of Diagnostic Code 6600 are based on pulmonary function test (PFT) diagnostics and a rating of 10 percent is assigned for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted or predicted value; or, the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent; or, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 66- to 80-percent predicted. A rating of 30 percent is assigned for FEV-1 of 56- to 70- percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) 56- to 65 percent predicted. A rating of 60 percent is assigned for FEV-1 of 40- to 55- percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, DLCO (SB) of 40- to 55-percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limitation). A rating of 100 percent is assigned for FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or, DLCO (SB) less than 40-percent predicted; or, maximum exercise capacity less than 15 ml/kg/min (with cardiac or respiratory limitation); or, cor pulmonale (right heart failure); or, right ventricular hypertrophy; or, pulmonary hypertension (shown by Echo or cardiac catheterization); or, episode(s) of acute respiratory failure; or, requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6600 (2012). Spirometry testing in November 1999 found FEV-1 of 103 percent predicted and FEV-1/FVC of 79 percent predicted. A December 1999 Tuberculosis Board review noted that the Veteran had pulmonary tuberculosis, inactive, stage IV, and at present there were no visible residuals in his right upper lung, the previous site of pulmonary tuberculosis lesions in 1946. It was determined that findings of bronchiectasis were demonstrated. Based on the medical evidence above, the Board finds that the criteria for a rating in excess of 10 percent are not met. The Board has considered the other potentially applicable codes for rating the respiratory disability, but finds that the Veteran's symptoms did not meet the criteria for a higher rating under those criteria. 38 C.F.R. § 4.97, Diagnostic Codes 6825-6833, 6840-6847 (2012). In conclusion, the Board finds that the Veteran's disability picture regarding his pulmonary tuberculosis with bronchiectasis did not more nearly approximate a rating in excess of 10 percent. Further, the Board finds that the evidence does not show distinct time periods exhibiting symptoms warranting any staged ratings. Consequently, the Board finds that the 10 percent disability rating assigned for the Veteran's pulmonary tuberculosis with bronchiectasis, throughout the rating period on appeal, appropriately reflects the clinically established impairment experienced by the Veteran prior to his death. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran was entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board must make a determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If the related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, there has been no showing that the Veteran's disability picture was not contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's pulmonary tuberculosis with bronchiectasis was applied to the applicable rating criteria. Although the applicable criteria provide for higher ratings, the Board has fully explained why a rating in excess of 10 percent for his pulmonary tuberculosis with bronchiectasis is not warranted. Because the applicable schedular rating criteria are adequate in this case, the Board need not consider whether the Veteran's pulmonary tuberculosis with bronchiectasis included exceptional factors. However, the evidence does not show frequent hospitalization or marked interference with employment due to the respiratory disability. Therefore, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board finds that there is no basis for a higher rating for pulmonary tuberculosis with bronchiectasis, for accrued benefits, and the claim must be denied. The preponderance of the evidence is against assignment of any higher rating, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence for Service Connection for Beriberi As to the issue of whether new and material evidence has been received to reopen the claim of service connection for beriberi, the Board notes that new regulations were placed into effect with respect to determinations as to whether new and material evidence has been submitted to reopen a claim during the course of this appeal. These regulations apply to claims filed subsequent to August 29, 2001. As this claim was received prior to this time, it is governed by the laws and regulations addressed below. A rating decision becomes final only after the period for appeal has run, and any interim submissions before finality must be considered by the VA as part of the original claim. Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final. King v. Shinseki, 23 Vet. App. 464 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461 (2009). When statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Buie v. Shinseki, 24 Vet. App. 242 (2011). The Board has considered all the evidence of record received following the May 1976 rating decision and to the date of the Veteran's death, as it relates to the beriberi claim. The Veteran was notified of the May 1976 decision in May 1976 and did not perfect his appeal. Moreover, no evidence or argument was received within one year following notification of the decision. Therefore, the decision became final with regard to this issue. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000). New evidence is considered to be material where the new evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The RO, in May 1976, denied service connection for beriberi in part on the basis that the Veteran's discharge examination did not show residuals of beriberi and that the evidence did not show beriberi. Evidence received between the May 1976 rating decision and the Veteran's death includes VA and private treatment records, a July 1999 VA examination, and statements from the Veteran. Those records show no current treatment for residuals of beriberi. In fact, a July 1999 VA examination report shows that the Veteran had no residuals of beriberi. This determination was made following a complete examination of the Veteran. The newly added treatment records and VA examination continue to demonstrate that the Veteran did not have residuals of beriberi. The Veteran's argument that he continued to suffer residual effects of beriberi are essentially cumulative of those of record at the time of the previous denial. The basis for the prior denial was that chronic manifestations of beriberi were not shown. There remains a lack of evidence showing any current residuals of beriberi. In sum, there has been no evidence submitted since the prior RO decision, and before the Veteran's death, that is new and material to warrant the reopening of the claim of entitlement to beriberi. In reaching this decision the Board finds that the preponderance of the evidence is against a finding that any newly submitted evidence is material. Therefore, the claim is not reopened and the benefits sought on appeal remain denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dysentery, Malnutrition, Intestinal Parasitism, Peptic Ulcer Disease, IBS, Psychiatric Disability Service connection may only be granted for a current disability. When a claimed disability is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran was a prisoner of war (POW) for more than thirty days. Certain listed diseases are presumed to have been incurred in service if they manifest to a compensable degree at any time after the service of a veteran who was a POW. 38 C.F.R. §§ 3.307(a)(5), 3.309(c) (2012). Those diseases are psychosis; any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite; post- traumatic osteoarthritis; atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia); stroke and its complications; avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; irritable bowel syndrome; peptic ulcer disease; peripheral neuropathy except where directly related to infectious causes; and cirrhosis of the liver. 38 U.S.C.A. §§ 1101, 1110, 1112(b), 1113 (West 2002); 38 C.F.R. §§ 3.1(y), 3.307(a)(5), 3.309(c) (2012). Initially the Board notes with respect to the Veteran's dysentery claim, historically, the Veteran initially filed a claim for entitlement to service connection for dysentery in October 1975. The RO, in May 1976 denied his claim. The Veteran did not appeal that decision within a year, and it became final. Therefore, the Veteran would typically be required to submit new and material evidence to reopen the claim for service connection for dysentery. 38 C.F.R. § 3.156(a) (2000). However, as part of his claim on appeal, the Veteran submitted a copy of a service medical record that had not been previously of record. Specifically, that document discussing specifics of his service, noted that the Veteran had suffered from dysentery in service. Where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. 38 C.F.R. § 3.156(c) (2012). The Board will therefore proceed with the service connection claim for dysentery on a merits consideration, as opposed to a petition to reopen the claim based on new and material evidence. A service document submitted by the Veteran in May 2002 showed treatment for dysentery in service. The Veteran's February 1946 separation examination showed normal clinical evaluations except for pulmonary tuberculosis. Additional treatment records are silent for treatment regarding dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability. Although the Veteran filed his claims in March 1999 alleging continuing ailments associated with his service and as a result of his POW status, the treatment records after service do not confirm any treatment or diagnosis of dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability. Furthermore, the evidence does not show any residuals of the inservice dysentery. In fact, July 1999 VA examinations reflected no intestinal parasitism, no evidence of a mental disorder, no active peptic ulcer disease, and no residuals of malnutrition, dysentery, or irritable bowel syndrome. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in March 1999. Clinical diagnoses of dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability were not of record at that time, nor at any time while the claims were pending prior to the Veteran's death. Those claim condition are medical in nature and would require medical expertise to diagnose and opine as to the etiology. For entitlement to compensation, the evidence must show the existence of a current disability, and one that has resulted from a disease or injury that occurred in the line of duty. In the absence of an identified disease or injury, service connection may not be granted. Based on evidence in the file submitted from his date of claim and prior to the date of his death, there is no competent evidence that the Veteran had a disorder relating to dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability. The Board finds significant that despite his allegations of dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability, when the Veteran was examined at July 1999 VA examinations, those disorders were not clinically diagnosed. Based on the foregoing, the weight of the evidence is against the claims for service connection for dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability. In essence, there was no present disability shown. A current disability is a prerequisite to service connection under any theory of entitlement. Therefore, the appeal for dysentery, malnutrition, intestinal parasitism, peptic ulcer disease, irritable bowel syndrome, or a psychiatric disability must be denied. The Board finds that the preponderance of the evidence is against the claims for service connection and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Polymyositis The evidence in file and in VA's possession on the date of the Veteran's death included the Veteran's service medical records, private and VA treatment records, and July 1999 VA examination reports. Subsequent to the Veteran's death, additional records to include the Veteran's death certificate and VA medical opinions were used to adjudicate a claim for Dependency and Indemnity Compensation. However, evidence in the file at the date of death means evidence in the claims file on or before the date of the beneficiary's death, or constructively in possession of VA prior to the date of death. In this case, although there was medical evidence of record, prior to the Veteran's death, documenting a diagnosis of polymyositis, there was no evidence linking the condition to the Veteran's military service. The Board has considered an April 2002 private treatment record which diagnosed the Veteran with polymyositis. The medical doctor opined that it was reasonable to conclude that the disease was contracted by the Veteran were due to an immunologic dysfunction which "may be" age-related and contributed to by poor health due to malnutrition, and physical and psychological stresses suffered by the Veteran during his younger years as a soldier in World War II. That April 2002 opinion is speculative in nature. A speculative opinion cannot be used to establish a claim for benefits. Stegman v. Derwinski, 3 Vet. App. 228 (1992) (opinion that did little more than suggest a possibility that an illnesses might have been caused by service radiation exposure was insufficient to establish service connection). Moreover, an adequate rationale was not provided for the speculative opinion such that it was sufficient to show that it was at least as likely as not that polymyositis was incurred in or aggravated by service or was proximately due to or the result of a disease or injury incurred in or aggravated by service. While evidence in the file on the date of death was sufficient to establish that the Veteran had a current disability, there was no adequate evidence linking his current disability to service. Unfortunately, the evidence of record on the date of the Veteran's death was not sufficient to establish that a current disability was related to military service. Therefore, at the time of his death, the evidence did not establish that the requirements for service connection had been met. The Board cannot consider the medical evidence received following the Veteran's death, nor can a medical opinion be sought to determine whether a nexus exists between military service and a current disability in an accrued benefits case. Ralston v. West, 13 Vet. App. 108, 113 (1999). Because the Board must base its accrued benefits decision on the evidence in the file at the date of death, and because there was no non-speculative medical evidence of record at the time of the Veteran's death linking polymyositis to service, the claim for accrued benefits must be denied. In reaching the above conclusions, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than May 8, 2002 for the grant of service connection for ischemic heart disease, for accrued benefits, is denied. A rating in excess of 10 percent for pulmonary tuberculosis with bronchiectasis, for accrued benefits, is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for beriberi and the claim for accrued benefits is denied. Service connection for dysentery, for accrued benefits, is denied. Service connection for malnutrition, for accrued benefits, is denied. Service connection for intestinal parasitism, for accrued benefits, is denied. Service connection for peptic ulcer disease, for accrued benefits, is denied. Service connection for IBS, for accrued benefits, is denied. Service connection for a psychiatric disability, for accrued benefits, is denied. Service connection for polymyositis, for accrued benefits, is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs