Citation Nr: 1323136 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-00 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus, including secondary to service-connected bilateral hearing loss, for accrued benefits purposes. 2. Entitlement to a total disability rating based on individual unemployability, for accrued benefits purposes. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to January 1966. He died in June 2007. The appellant is his surviving spouse. This matter arises to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2011, the Board issued a decision that disposes several issues on appeal. One such issue was entitlement to a greater schedular rating for a bilateral hearing loss disability. The Board then remanded the issues of entitlement to service connection for the cause of the Veteran's death and entitlement to service connection for tinnitus, including secondary to bilateral hearing loss, for accrued benefits purposes. Since then, VA's Appeals Management Center (hereinafter: AMC) has granted service connection for the cause of the Veteran's death and that issue is no longer before the Board. The AMC continued the denial of service connection for tinnitus and that issue is now ready for Board adjudication. The appellant appealed only that part of the September 2011 Board decision that failed to adjudicate an inferred claim for TDIU (for accrued benefits purposes). In April 2012, pursuant to a joint motion for remand (JMR), the Clerk of the United States Court of Appeals for Veterans Claims (hereinafter: the Court) ordered the case remanded back to the Board, "only to the extent it failed to adjudicate a claim of entitlement to a total disability rating for individual unemployability as it relates to the increased rating claim for hearing loss." The appellant and/or the record raises the issues of whether new and material evidence sufficient to reopen claims of entitlement to service connection for diabetes mellitus and for multiple myeloma, for accrued benefits purposes, has been submitted. These issues are referred to the RO for adjudication. Entitlement to a total disability rating based on individual unemployability, for accrued benefits purposes, is addressed in the REMAND portion of the decision and is remanded to the Appeals Management Center (hereinafter: AMC) in Washington, D.C. FINDINGS OF FACT 1. The appellant's claim for accrued benefits was timely filed within one year of the Veteran's death in June 2007. 2. The Board is precluded by statute and regulation from considering evidence not in the file on the date of the Veteran's death. 3. At the time of the death of the Veteran, his VA claims files contained a pending claim for service connection for tinnitus, two VA opinions addressing the etiology of tinnitus, a private etiology opinion addressing tinnitus, medical treatise evidence tending to link tinnitus to exposure to loud noise, and credible testimony concerning the onset of tinnitus. 4. Medical evidence tending to attribute tinnitus to in-service noise exposure has been submitted. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, because the Board has granted the benefits sought, no further duty to notify or assist is required. Service connection for Tinnitus, for Accrued Benefits Purposes The Veteran passed away in June 2007, at the age of 62. At the time of his death, a claim for service connection for tinnitus, including secondary to his service-connected hearing loss disability, among other claims, had been filed, but not finally adjudicated. When a Veteran has a claim pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death, based on existing ratings or decisions, or other evidence, on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. Although the appellant's claim for accrued benefits is separate from the claims that the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the Veteran's claims and the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). There is no basis for an accrued benefits claim, unless the individual from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The former provisions concerning accrued benefits apply to this case. Under those provisions, the appellant must file for benefits within one year of the Veteran's death. 38 C.F.R. § 3.1000 (c) (2012). Appellant's claim for accrued benefits was timely filed within one year of the Veteran's June 2007 death. The evidence that may be considered in conjunction with an accrued benefits claim is restricted. "[A]ccrued benefits" are "periodic monetary benefits (other than insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death..." 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Therefore, the general rule is that is that evidence other than "existing ratings or decisions" or evidence "in the file at date of death" may not be considered in the adjudication of a claim for accrued benefits. See Jones v. Brown, 8 Vet. App. 558 (1996), overruled on other grounds, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Exceptions to this general rule exist. Under 38 U.S.C. § 5121(c); a person claiming accrued benefits must be afforded an opportunity to submit "evidence necessary to complete the application." 38 U.S.C.A. § 5121(c). VA regulations therefore authorize the submission of a death certificate after the date of death. 38 C.F.R. § 3.1000(d)(4). VA's General Counsel (hereinafter: GC) has observed in a Precedent Opinion that the items referred to in these provisions are data supporting the accrued benefits application itself, not the claim for the underlying benefit. VAOPGCPREC 6-93 (59 Fed. Reg. 4752 (1994)). In Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the Court held that service department and certain VA medical records, to include reports of autopsies made on the date of death, pertinent to the claim that a Veteran had at the time of his death were relevant to the accrued benefits claim because they are constructively [emphasis added] of record on the date of death, but physically absent from the claims file. The Court cited service department records; reports of VA hospitalization; reports of treatment or examinations in VA medical centers; reports of hospitalization, treatment, or examinations authorized by VA; and reports of autopsy made by VA on the date of death. Hayes, 4 Vet. App. at 360. See also Green v. Brown, 10 Vet. App. 111, 118 (1997); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam order). Hayes dicta suggests that § 5121 is ambiguous and therefore VA might accept, under § 5121(c), other kinds of post-date-of-death evidence pertinent to the underlying benefits claim. Hayes, 4 Vet. App. at 360. A VA GC Precedent Opinion, referring to the Hayes decision, rejects that proposition and stresses that there is no authority for introducing into the record of an accrued benefits claim "post-date-of-death evidence" "relating to the decedent's underlying benefit entitlement." VAOPGCPREC 6-93 (59 Fed. Reg. 4752 (1994)) (citing Conary v. Derwinski, 3 Vet. App. 109 (1992) (per curiam)). GC precedent opinions are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). Therefore, the only outstanding evidence pertinent to the issue of service connection for tinnitus that could be added to the claims file in this case is that corresponding in type to the evidence cited by the holding in Hayes. Reviewing the evidence "in the file at date of death," the Veteran filed his original claim for benefits in February 1999, claiming a bilateral hearing loss disability. In May 1999, he submitted a VA clinical record addressing tinnitus. According to that form, he had reported, in May 1999, that tinnitus became noticeable about 10-years after active service. VA obtained the Veteran's service treatment reports, which do not note a complaint of tinnitus. In July 2003, the RO granted service connection for a bilateral hearing loss disability, but deferred the tinnitus claim. In September 2003, a VA physician examined the Veteran and then dissociated tinnitus from active service on the basis that the Veteran had reported that tinnitus did not arise until a "number of years" after active service. In November 2004, the Veteran testified before an RO hearing officer that he first noticed tinnitus right after discharge from active service and he questioned why VA had not considered whether his hearing loss had caused or increased his tinnitus. The Veteran submitted argument in November 2004 for service connection for tinnitus and he submitted medical abstracts that note that up to 90 percent of tinnitus patients also have hearing loss, although the causes of tinnitus remain debatable. An article suggests that loud noise is likely to trigger or worsen tinnitus. He also submitted a November 2004 letter from K. Tran, M.D. In the letter, Dr. Tran concludes that it is likely that active service noise exposure "could be the cause of this condition." Dr. Tran did not offer a rationale, however. In December 2004 a VA physician examined the Veteran and offered a diagnosis of bilateral recurrent tinnitus. The physician then dissociated this from active service on the basis that none of the medical evidence submitted to date tended to relate tinnitus to active service. In January 2007, the Veteran requested a second medical opinion on the issue of service connection for tinnitus. He expired in June 2007. In September 2011, the Board remanded the case for a medical opinion addressing the etiology of the Veteran's tinnitus. Although a VA audiologist offered an opinion on the matter in November 2012, this evidence cannot be used, as it was not of file on the date of the Veteran's death. Turning to the statutes and regulations governing service connection, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id, at 448. 38 C.F.R. § 3.310 was amended effective October 10, 2006. However, because the claim had been pending since 1999, the earlier version applies, as that version favors the appellant. In this case, the evidence for and against service connection for tinnitus, for accrued benefits purposes, is in relative equipoise. Although two VA examiners have dissociated tinnitus from active service, the examiners did not satisfactorily address the issue of secondary service connection. Because of this shortcoming, the factual underpinning for the September 2003 and November 2004 negative opinions is lacking and the persuasive value of those opinions is lowered. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The favorable evidence includes Dr. Tran's opinion, the medical treatise evidence, and the Veteran's testimony. Although Dr. Tran's rationale for linking tinnitus to noise exposure during active service is lacking, his opinion is supported by the medical treatise evidence that cites statistical proof that noise exposure might lead to tinnitus. While VA's duty to assist might include asking Dr. Tran for a rationale (Savage v. Shinseki, 24 Vet. App. 259, 272 (2010)), VA is precluded from adding new evidence to the record. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). The Board notes well that VA has already conceded that aircraft carrier noise exposure has caused the Veteran's bilateral hearing loss disability. No medical evidence was submitted to explain why that noise exposure did not also cause his tinnitus. Moreover, the Board is precluded from obtaining additional clarifying evidence, as supporting evidence obtained after the date of death of the Veteran cannot be considered. Id. Because the Veteran served aboard aircraft carriers where he was routinely exposed to loud noise, because VA has already granted service connection for a bilateral hearing loss disability associated with that noise exposure, and because favorable medical nexus evidence has been submitted, after considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), Service connection for tinnitus, for accrued benefits purposes, will therefore be granted. ORDER Service connection for tinnitus, for accrued benefits purposes, is granted. REMAND As noted in the introduction, the Board finds the appellant has, within a January 2013 statement, petitioned to reopen a claim seeking entitlement to service connection for multiple myeloma and diabetes mellitus, type II, for accrued benefits purposes. The remaining TDIU issue on appeal here, however, is inextricably intertwined with issues that have been referred to the AMC for adjudication. The Board notes that the recent JMR from the Court directs that the Board consider an implied claim for TDIU, for accrued benefits purposes, as it relates to a service-connected hearing loss disability; however, a TDIU claim takes into account all service-connected disabilities. Indeed, the resolution of those referred claims may render the TDIU claim moot. The appellant contends that prior to the Veteran's death, service connected disabilities prevented him from engaging in substantially gainful employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). At the time of death of the Veteran, service connection was in effect for a bilateral hearing loss disability, rated 10 percent disabling. In the decision above, the Board has granted service connection for tinnitus, for accrued benefits purposes, based on evidence of file at the time of death. It is also noteworthy, although not directly relevant to the TDIU claim on appeal, a January 2013 rating decision granted service connection for the cause of the Veteran's death due (and the evidence indicates the Veteran died from complications of multiple myeloma). During the Veteran's lifetime he was not service-connected for multiple myeloma and the Board has previously denied a claim seeking entitlement to service connection for multiple myeloma for accrued benefits purposes. What must be adjudicated by the AMC is whether the appellant has standing to reopen a claim for service connection for diabetes mellitus and for multiple myeloma, for accrued benefits purposes, and if so, whether new and material evidence has been submitted. After such adjudication, the AMC must then address the implied claim of entitlement to TDIU, for accrued benefits purposes. The case is therefore remanded to the AMC for the following action: 1. VA must review the entire file and ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012)), as well as VAOPGCPREC 7-2004, are fully satisfied. 2. The AMC must fully develop and adjudicate the appellant's January 2013 petition to reopen claims for service connection for diabetes mellitus and for multiple myeloma, for accrued benefits purposes; thereafter, the AMC must then adjudicate the implied claim for TDIU, for accrued benefits purposes. 3. After the development requested above has been completed to the extent possible, if the benefits sought remain denied, the appellant and her representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. The Board intimates no opinion as to the ultimate outcome of this case. No action by the appellant is required until she receives further notice. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs