Citation Nr: 1453045 Decision Date: 12/02/14 Archive Date: 12/10/14 DOCKET NO. 07-32 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tremor of all fingers, shingles, loss of strength in both arms, right shoulder disorder, arthritis in spine, and legs and feet tiring easily, claimed as secondary to the service-connected disability of wound to muscle group XXIII with retained foreign body, for accrued benefit purposes. 2. Entitlement to service connection for twitching in fingers, for accrued benefit purposes. 3. Entitlement to service connection for heart condition, for accrued benefit purposes. 4. Entitlement to a total disability rating based on individual unemployability (TDIU), for accrued benefit purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1942 to February 1947. His awards and decorations included the Purple Heart Medal and the Combat Infantryman Badge. The Veteran died in December 2000; the present Appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama denied the Appellant's request to reopen a previously-denied claim of entitlement to accrued benefits. In November 2008 the Appellant testified before the undersigned Veterans Law Judge in a Travel Board hearing at the RO. A transcript of her testimony is of record. The Board issued a decision in June 2009 that denied the Appellant's request to reopen, based on a determination that as a matter of law an accrued benefits claim cannot be reopened more than one year after a veteran's death. The Appellant thereupon appealed the Board's decision to the United States Court of Appeals to Veterans Claims (Court), which issued a Memorandum Decision in January 2012 vacating the Board's denial and remanding the case to the Board for further actions consistent with its decision. Pursuant to the Court's guidance, the Board issued a decision in July 2012 that granted the Appellant's request to reopen the previously-denied claim and remanded the case to the Agency of Original Jurisdiction (AOJ) for further action. The development actions required by the Board have been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2014). FINDINGS OF FACT 1. Evidence that was before VA at the time of the Veteran's death does not show the Veteran to have had symptomatic tremor or twitching of all fingers, shingles, loss of strength in both arms, right shoulder disorder, arthritis in spine, and/or legs and feet tiring easily that were etiologically related to service or that were proximately caused by or permanently worsened by the service-connected gunshot wound disability. 2. Evidence that was before VA at the time of the Veteran's death does not show the Veteran to have had arthritis of the spine, heart condition, or organic disease of the nervous system that was incurred in service or that became manifest to a compensable degree within the first year after discharge from service, or that such disorders were proximately caused by or permanently worsened by the service-connected gunshot wound disability. 3. Evidence that was before VA at the time of the Veteran's death suggests that a chronic tremor of the right index finger was made worse by service-connected anxiety state. 4. Evidence that was before VA at the time of the Veteran's death does not show the Veteran to have been rendered unable to obtain or maintain gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The requirements to establish entitlement to service connection for tremor of the right index finger (also claimed as twitching in the finger), for accrued benefit purposes, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014); 38 C.F.R. § 3.310 (2006). 2. The requirements to establish entitlement to service connection for tremor of fingers (other than right index finger), shingles, loss of strength in both arms, right shoulder disorder, arthritis in spine, and legs and feet tiring easily, for accrued benefit purposes, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014); 38 C.F.R. § 3.310 (2006). 3. The requirements to establish entitlement to service connection for twitching in the fingers (other than right index finger), for accrued benefit purpose, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014); 38 C.F.R. § 3.310 (2006). 3. The requirements to establish entitlement to service connection for heart condition, for accrued benefit purposes, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014); 38 C.F.R. § 3.310 (2006). 4. The requirements to establish entitlement to a TDIU, for accrued benefit purposes, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2014). This case involves accrued claims, which must be decided based on evidence in VA's possession at the time of death. The Appellant's claim was initially denied because the RO determined the Veteran did not have a claim pending at the time of his death. She thereafter submitted VA created documents as evidence that there was a claim pending at his death. She has been advised of pertinent laws in the statement of the case, to include the relevant VCAA duties. Her claim was last adjudicated in a May 2014 supplemental statement of the case. She was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in November 2008, during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues and the Appellant testified as to why she believed the Veteran should have been service connected for his claimed conditions and entitled to a TDIU. Neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims and the Appellant testified as to those elements. As such, the Board finds that there is no prejudice to the Appellant in deciding this case and that no further action pursuant to Bryant is necessary. Here, there is no reasonable possibility that any additional notice or development would aid in substantiating the appellant's claim for accrued benefits. The record includes the Veteran's service treatment records, VA treatment records, private medical records, and the Veteran's death certificate. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence in constructive possession of VA at the time of the Veteran's death exists but is not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that there is no prejudice to the Appellant in deciding the issues on appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Service Connection Applicable Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2014); 38 C.F.R. § 3.303 (2014). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2014); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2014). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2014). Establishing service connection generally requires competent evidence of a current disability; an in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis, diseases of the nervous system, and cardiovascular-renal disease become manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & West 2014)); 38 C.F.R. §§ 3.307, 3.309 (2014). Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2006). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits, or else be entitled to them under an existing rating or decision. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2014); 38 C.F.R. § 3.1000 (2014); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). "Claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally-disallowed claim based on new and material evidence or a deceased beneficiary's claim for clear and unmistakable error in a prior rating decision. However, any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death. 38 C.F.R. § 3.1000(d)(5) (2014). "Evidence in the file at the date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4) (2014). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis The Veteran died in December 2000. Per the death certificate, the immediate cause of death was acute renal failure, due to or as a consequence of disseminated intravascular coagulation (DIC) that was due to or a consequence of methicillin-resistant staphylococcus aureus (MRSA) septicemia. Prior to the Veteran's death, the last claim initiated was for service connection for hand tremors, shingles, loss of strength in both arms, right shoulder condition, arthritis of the spine, feet and legs tiring easily, and twitching finger, as well as a claim for a TDIU. All these claims were denied by an unappealed rating decision in July 2000. As noted in the Board's July 2012 remand, the one-year appeal period had not expired as of the Veteran's death, and the claim thus remained "pending" and was subject to a determination for accrued benefits purposes upon receipt of the Appellant's timely claim in February 2001 for dependency and indemnity compensation (DIC). See Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007). Turning to the evidence, service treatment records (STRs) are silent in regard to any chronic disorder manifested by hand tremors, shingles, loss of strength in both arms, right shoulder condition, arthritis of the spine, feet and legs tiring easily or twitching finger. The Veteran had a VA neuropsychiatric examination in February 1948 in which the examiner attributed tremulousness (trembling of the fingers) and fatigability to the Veteran's service-connected anxiety reaction rather than to distinct physical nerve impairment. Treatment notes from Flowers Hospital show the Veteran was treated in November 1991 for chills, nausea and chest pain. The clinical impression was osteomyelitis of the sternum secondary to staphylococcus, status postoperative coronary artery bypass grafting for ischemic heart disease, status postoperative splenectomy, history of diverticulitis and history of hypertension. He was treated again in February 1992 for continued symptoms, now diagnosed as acute diverticulitis with E. coli bacteremia. The treatment notes are silent in regard to any relationship between these symptoms, to include underlying ischemic heart disease, and the service-connected gunshot wound. However, the treatment notes do show family history of heart disease (father and one brother both died of heart attacks). In February 1994 the Veteran submitted a claim seeking service connection for disorders of the right shoulder, right eye, right hand and right index finger, which he attributed to nerve damage associated with the service-connected gunshot wound to the right jaw, neck and head. In May 1995 he additionally requested service connection for "spine." The Veteran had a VA general medical examination in June 1995 in which he reported having been shot in the right side of the face in 1944; the bullet was still in place because surgical removal of the bullet entailed risk of paralysis. The Veteran complained of discomfort in the neck radiating into the lower spine. He also endorsed having had open-heart surgery in the early 1970s and reported he had been born with only one kidney. Examination showed the Veteran to have normal posture and normal, but slow, gait. The joints were normal for stability and range of motion (ROM). Neurological examination showed paralysis of the right fifth trigeminal nerve, numbness at the level of the right side of the face from the eye down to the mandible and slight weakness of the mandibular branch of the facial nerve. Psychiatric examination was normal. X-ray of the cervical spine showed moderate degenerative arthritis at C4-5 and C5-6 levels and a bullet present in the right C2 soft tissue. X-ray of the lumbosacral spine showed mild degenerative arthritis. The examiner diagnosed status post gunshot wound right mandible with missile still present at the base of the skull to the right of C2 (second cervical); paralysis of the right trigeminal nerve; partial paralysis of the right facial nerve; status post coronary artery bypass graft with sternal diastasis; mild degenerative osteoarthritis of the lumbosacral spine; moderate osteoarthritis of the cervical spine; and, abnormal electrocardiogram with first degree AV block and right bundle branch block with right ventricular enlargement. In a September 1995 claim for individual unemployability the Veteran stated he had developed severe pain in right shoulder that almost required retiring and had also developed twitching in right fingers and hand, which he first noticed in July 1990. VA X-rays of both shoulders in November 1995 showed no significant abnormalities. During the period December 1995 to March 1996 the Veteran had 36 treatments at a rehabilitation center for what was diagnosed as tendinitis of the right rhomboids. The Veteran presented to the VA outpatient clinic in December 1996 complaining of tremors in the right hand. The clinical impression was neuropathy versus rule out Parkinsonism. The Veteran had a VA general medical examination in February 1997 in which he complained of a history of vague pains from the middle of his trunk spreading out into all of his trunk and into the back and both upper extremities; he was not able to further describe this vague discomfort. He reported a history of coronary artery disease (CAD) since 1972 with coronary bypass surgery in 1992. He also reported having been involved in a motor vehicle accident (MVA) in 1990 that resulted in abdominal injuries that required splenectomy with intestinal excision and resultant digestive problems. Tremor of the index finger of his right hand had begun two years ago. The examiner performed a clinical examination of the Veteran and noted observations in detail. In relevant part the examiner diagnosed CAD status post coronary artery bypass grafting; intention tremor of the right index finger of uncertain etiology; and, tremor of the right hand of uncertain type. A rating decision in April 1997 denied service connection for neuropathy of the right arm, based on a determination that such disorder was not shown on examination. Entitlement to a TDIU was also denied in that decision and a May 1997 rating decision. The Veteran had a VA general medical examination in June 1998, performed by a physician who reviewed the claims file. The Veteran complained of decreased strength in the right upper extremity (RUE) since 1995. Also, since his MVA in 1991 he had experienced intermittent twitching of the right index finger. Neurological examination confirmed decreased muscle strength and decreased sensation in the RUE as well as tremor of the right index finger at rest. No weakness was noted in the shoulder girdle. Electromyography/nerve conduction velocity (EMG/NCV) study showed mild right carpal tunnel syndrome and right C5-6 radiculopathy. In relevant part the examiner diagnosed CAD status post coronary artery bypass grafting; tremor of the right index finger at rest; degenerative arthritis and degenerative disc disease (DDD) of the cervical spine at C4-5 and C7; decreased strength in the RUE with right C6-7 radiculopathy; and, mild right carpal tunnel syndrome (CTS). In regard to the etiology of symptoms, the examiner stated the retained bullet in the Veteran's jaw was productive of sensory changes on the right side of the Veteran's chin; the other problems noted were unlikely related to the gunshot wound. An August 1998 rating decision denied service connection for various disabilities and denied entitlement to a TDIU. The Veteran had a private cardiology consult in February 1999 for evaluation of dizziness and syncope. Neurological examination showed trigeminal neuralgia and occasional shingles, but the report is silent in regard to any peripheral neuropathy in the extremities. The Veteran subsequently underwent implantation of a pacemaker. The last claim for service connection prior to the Veteran's death was filed by the Veteran in May 1999. The Veteran asserted therein that he had worsening tremor in the right index finger and loss of use of the fingers of his right hand. He developed shingles the previous July (i.e., July 1998) and had shoulder problems since 1985. It was the Veteran's firm belief that these problems were related to his gunshot wound. Also, for the past few months he tired easily and his feet and legs would give out. In June 1999 the Veteran submitted a Statement in Support of Claim in which he cited trouble with the right shoulder since 1985, twitch in the right index finger in 1995 that subsequently spread to the other fingers of that hand, loss of strength in the right and left arms, shingles since July 1998, pacemaker implantation in 1999 and DDD of the spine. The Veteran asserted that the bullet, which was still lodged in his neck, had caused permanent nerve damage on entry, and stated "odds are" that all the problems cited in his letter were related to this wound. The Veteran had a VA general medical examination in August 1999, again performed by an examiner who reviewed the claims file. The Veteran stated that since the previous examination in 1998 he had a pacemaker installed. He complained of generalized weakness and weakness/tingling in the RUE. ROM of the shoulders showed some restriction, which the examiner noted was probably because of age considerations; the elbows, hands and fingers moved normally. Strength in the extremities was approximately 4/5. There was no evidence of significant tremors other than intermittent twitching of the right index finger. The central nervous system was clinically stable except for memory deficit probably related to previous medical problems; there was no central palsy. In relevant part the examiner diagnosed CAD status post bypass graft; chronic tremor of the right index finger more with stress or anxiety; cervical arthritis with cervical C6-7 radiculopathy and with mild CTS; gunshot injury to the left mandible with right fifth nerve distal mandibular sensory deficit; and, retained bullet in C2-C3 spinous interspace but with no other complications. In an addendum issued in September 1999, the VA examiner cited above stated that the Veteran's gunshot wound resulted in residual lower lip numbness. As far as other conditions such as tremors of the fingers, twitch in the right fingers, shingles, complaint of weakness in the arms, right shoulder condition, arthritis in the spine, feet and legs, heart condition, pacemaker, CAD, and cervical arthritis, these were not connected to the World War II wound injury. In the July 2000 rating decision on appeal, the RO denied service connection for tremors of all fingers; shingles; loss of strength in both arms; right shoulder condition; arthritis in the spine; and, feet and legs tiring easily, based on a determination that the evidence of record failed to establish any relationship between those disorders and the service-connected gunshot wound. The rating decision also denied service connection for twitching in fingers on either a direct or secondary basis, noting that the symptoms began after a post-service MVA. Finally, the rating decision denied service connection for a heart condition with pacemaker on either a direct or secondary basis, noting that no heart condition was manifested until 1999. Thus, the Veteran had not presented a "well grounded" claim for service connection. Review of the evidence in possession of VA at the time of the Veteran's death does not establish that the Veteran's claimed disabilities were etiologically related to service or to his service-connected gunshot wound disability. Moreover, arthritis, CAD and neurological disease are not shown by the evidence to have begun in service or to have manifested to a compensable degree within one year following discharge from service. As noted above, although tremulousness was noted on an examination in February 1948, such was found by the examiner to be due to anxiety and not to neurological disability. The Board concludes that CAD, arthritis, and neurological disease were not manifested to a compensable degree within the first year after discharge from service. Accordingly, service connection under the provisions of 38 C.F.R. § 3.309(a) (2014) is not for consideration. During his lifetime, the Veteran asserted his strong belief that the disorders on appeal are proximately caused by his service-connected gunshot wound, and the Appellant has continued that assertion. However, the Veteran is shown to have had a number of significant health factors, such as heredity, age, comorbid nonservice-connected disorders and post-service traumatic injury. Accordingly, the etiology of symptoms is a complex medical question not within the competence of the Veteran or the present Appellant. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The VA examiners in June 1998 and August 1999 both provided medical opinions agreeing that the Veteran's disabilities on appeal were not related to the service-connected gunshot wound. These opinions were not controverted by any other medical opinion of record prior to the Veteran's death. However, the August 1999 VA examiner noted the chronic tremor of the right index finger was greater with stress or anxiety. The evidence indicates this tremor of the right index finger arose following the Veteran's MVA; however, as noted above, service connection may be awarded on a secondary basis when a nonservice-connected condition is aggravated by a service-connected condition. As the Veteran was service connected for anxiety state, the Board will resolve all doubt in the favor of the Appellant and find that the Veteran's chronic tremor of the right index finger was aggravated by the service connected anxiety state. Accordingly, secondary service connection for chronic tremor of the right index finger based on aggravation is granted. However, there is no medical opinion indicating that tremors or twitching of any other fingers or the hand present during the period of the claim prior to the Veteran's death is related to service or any service-connected condition. Thus, service connection for tremors or twitching of the other fingers is not warranted. The file contains letters dated in December 2002 by Dr. Leonard Freed and in February 2003 by Dr. Radford Barnes, both of which assert a relationship between the Veteran's gunshot wound and his diminishing health (and eventual death). As these opinions were not before VA at the time of the Veteran's death they are not for consideration in the present claim for accrued benefits. 38 C.F.R. § 3.1000(d)(4) (2014). Similarly, Dr. James Sullivan submitted letters dated in April 2005, September 2005 and June 2007 stating the Veteran's death in December 2000 of staphylococcus infection could have been associated with his service-connected gunshot wound. In reliance on Dr. Sullivan's opinion the RO issued a rating decision in November 2005 that granted service connection for the cause of the Veteran's death; however, as Dr. Sullivan's letters were not before VA at the time of the Veteran's death they are not relevant toward resolution of a claim for accrued benefits. Id. In her present claim for accrued benefits, received in January 2006, and in her testimony before the Board in November 2008, the Appellant asserted that the Veteran had submitted many claims for service connection during his lifetime that remained unresolved prior to his death; accordingly, service connection would and should have been granted prior to the Veteran's death, resulting in accrued benefits. In support of her assertion, she submitted copies of form letters addressed to the Veteran from the RO stating that unspecified claims for compensation were still being process as of October 2000, December 2000 and February 2001. The Board has patiently reviewed the seven volumes of the Veteran's claims file and can find no claims that were left unresolved by the rating decision in July 2000 or that were submitted by the Veteran between that rating decision and his death in December 2000. It is thus unclear what specific claims were referenced in the form letters cited above, but absent indication of what specific claims were "unresolved" the Board is unable to determine what, if any, additional benefits would have been granted prior to the Veteran's death, resulting in accrued benefits to the Appellant. In sum, the Board finds that secondary service connection for chronic tremor of the right index finger based on aggravation is warranted, but that the competent evidence before VA at the time of the Veteran's death does not establish that he had tremor of all other fingers, shingles, loss of strength in both arms, right shoulder disorder, arthritis in spine, legs and feet tiring easily, twitching in all other fingers, or heart condition that were etiologically related to service or that were proximately caused by or permanently worsened by a service-connected disability. Accordingly, the appeal for service connection for accrued benefits purposes for all issues other than the right index finger are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claims other than tremor of the right index finger, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU Applicable Laws and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2014). A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2014). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a) (2014). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a) (2014). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). Evidence and Analysis Treatment records from Flowers Hospital show the Veteran was working a normal schedule as a construction worker until he underwent coronary artery bypass grafting in October 1991; he subsequently developed osteomyelitis secondary to staphylococcal infection and did not return to work. In the claim for TDIU filed in September 1995, the Veteran stated that the service-connected disability that prevented him from working was "wounded in France WWII." In a November 1996 claim for TDIU the Veteran cited "results of gunshot wound" as the service-connected disability, and in an October 1997 claim for TDIU the Veteran cited "heart," dizziness and loss of use of the right side arm and hand. In response to the TDIU claims cited above, the RO issued rating decisions in October 1995, April/May 1997 and August 1998 that denied entitlement to individual unemployability, based on a determination that the Veteran was shown to be unemployable due to disorders that were not service-connected. The Veteran did not appeal those decisions. As noted above, the Veteran submitted a claim for individual unemployability in May 1999, which was denied by the July 2000 rating decision. The Veteran died in December 2000, soon after the rating decision was issued. At the time of his death the Veteran has service connection for the following disabilities: severe right mandible nonunion, rated as 30 percent disabling; severe wound to muscle group XXII (muscles of the front of the neck) with retained bullet, rated as 30 percent disabling; severe incomplete paralysis of a facial nerve, rated as 20 percent disabling; moderate incomplete paralysis of the trigeminal nerve, rated as 10 percent disabling; disfiguring scar of the right jaw, rated as 10 percent disabling; tender scar of donor site over the right ileum, rated as 10 percent disabling; headaches, rated as 10 percent disabling; and, anxiety state, rated as 10 percent disabling. His combined evaluation for service-connected disabilities was 80 percent. Because the Veteran's service-connected disabilities arise from a single injury (gunshot wound to the jaw), the criteria are met for consideration of a TDIU under 38 C.F.R. § 4.16(a). In the May 1999 claim for TDIU the Veteran stated he last worked as a heavy equipment operator from 1953 to 1992 and reported working 80 hours a week. He stated he had 2 years of education and also had training in upholstering. He stated he could no longer work due to neurological deterioration. In an accompanying letter the Veteran asserted having severe residuals of a gunshot wound during World War II, although he also cited a severe motor vehicle accident in 1990-1991 and a heart attack during the same period. The Veteran stated that he would never again be employable with all these factors occurring so closely. Service treatment records also list his education as 2 years and indicate he was a farmer prior to service. The Veteran had a VA general medical examination in August 1999 that resulted in diagnosis of gunshot injury to the right mandible with right fifth nerve distal mandibular level sensory deficit and retained bullet in C2-C3 spinous interspace but with no other complications. In terms of concurrent nonservice-connected problems, the examiner diagnosed CAD status post bypass graft; infected sternum with sternum removal; chronic tremor of right index finger; essential hypertension (stable); actinic keratosis (stable); splenectomy secondary to an old trauma (stable); and, cervical arthritis with radiculopathy and mild right CTS. The examiner stated the Veteran had multiple medical problems and a disability needing supervision; these kinds of mentioned findings are usually of a [illegible] hindrance in the Veteran's daily activities with functional status because of the medical problems. In the July 2000 rating decision, the RO denied entitlement to a TDIU based on a determination that the Veteran had not been found unable to secure or follow a substantially gainful employment as a result of service-connected disabilities. The Veteran was shown to be unemployed since his heart surgery in 1991, but CAD and its complications are not service-connected. The Veteran's employability was further limited by his nonservice-connected disorders such as hypertension, CTS and arthritis of the cervical and lumbosacral spine; nothing in the clinical treatment record establishes that the Veteran's service-connected disabilities, alone, would have caused him to be unemployable. A letter from Dr. James Sullivan, dated in September 2005, asserts the Veteran had coronary artery bypass grafting in October 1991 and subsequently developed a postoperative staphylococcal infection in December 1991. Dr. Sullivan stated the Veteran was never able to return to work after the staphylococcal infection and should be considered totally disabled from the date of surgery until his death. Because this opinion was not before VA at the time of the Veteran's death it is not relevant toward resolution of the present claim for accrued benefits. 38 C.F.R. § 3.1000(d)(4) (2014). In sum, the Board finds the evidence before VA at the time of the Veteran's death does not show that the Veteran's service-connected disabilities, when considered with his prior work history and education and without regard to nonservice-connected conditions, rendered him unable to obtain and maintain gainful employment. In this regard, the Veteran worked for decades with his service-connected disabilities, the majority of which were in effect at the same disability level since 1948. Only headaches was a new disability, added at a 10 percent rate in October 1997 and a tremor of the right index finger was just granted in this Board decision. The evidence of record at the time of the Veteran's death reflects he stopped working following his heart surgery. Indeed, even the Veteran pointed to his heart disability as impacting employability in his 1997 TDIU application. The preponderance of the evidence of record at the date of the Veteran's death does not reflect that he was unemployable from employment consistent with his education and prior work history due solely to service connected disabilities. Accordingly, entitlement to a TDIU for accrued benefits purposes is not warranted. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for tremor of all fingers, twitching in fingers, shingles, loss of strength in both arms, right shoulder disorder, arthritis in spine, and legs and feet tiring easily, for accrued benefit purposes, is denied. Entitlement to secondary service connection based on aggravation for chronic tremor of right index finger (also claimed as twitching in finger), for accrued benefit purposes, is granted. Entitlement to service connection for heart condition, for accrued benefit purposes, is denied. Entitlement to a total disability rating based on individual unemployability, for accrued benefit purposes, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs