Citation Nr: 1540143 Decision Date: 09/18/15 Archive Date: 10/02/15 DOCKET NO. 08-05 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an anxiety disorder for the purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from June 1995 to June 1998. The Veteran died in August 2006. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The appellant did not report for her Travel Board hearing to be held in April 2015. No further development with regard to a hearing is necessary. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's anxiety disorder was related to working as a corrections officer during active duty. CONCLUSION OF LAW Resolving doubt in the appellant's favor, an anxiety disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations The law and regulation governing claims for accrued benefits state that, upon the death of a veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of his or her death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2014); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). Although the appellant's claim for accrued benefits that is at issue in this appeal is separate from the claim of the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the claim of the Veteran and, by statute, the appellant takes the Veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. § 1110. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis Private treatment records dated in 2005 and 2006, which were of record at the time of the Veteran's death, show a diagnosis of anxiety disorder not otherwise specified. Hickson element (1), current disability, has been met. With respect to Hickson element (2), the Veteran's DD Form 214 reflects that he served on active duty as a corrections officer. A June 2005 private treatment record shows that the Veteran's doctor stated that the anxiety disorder may be related to a long history of working in detention centers since he was 18 years old. Therefore, Hickson element (2), in-service disease or injury, is satisfied. As for Hickson element (3), medical nexus, in the June 2005 private treatment record reflects that the treating doctor thought the anxiety disorder may be related to steroid use or that it may be related to working as a corrections officer. The doctor noted that the Veteran denied any steroid use. A December 2005 private treatment record reveals that the Veteran's irritability and agitation were mainly focused on his spouse and dealing with her neurosis. A January 2006 private treatment record indicates that the Veteran apparently "still [felt] majority of trigger [for his anxiety disorder] is [his] wife." Although the treating doctor used the term "may" in the June 2005 treatment record relating the anxiety disorder to being a corrections officer, the doctor did explain the basis of that opinion. In particular, the doctor noted that the Veteran had developed a generalized agitation towards less controlled environments. Therefore, in its totality, the medical opinion relating the anxiety disorder to being a corrections officer, to include being a corrections officer during active service, is not speculative. The Board finds that the evidence is in equipoise as to whether the Veteran's anxiety disorder was related to working as a corrections officer during active duty. Accordingly, Hickson element (3) is established. In summary, the Board is of the opinion that all requirements needed to establish service connection for an anxiety disorder have been met. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to service connection for an anxiety disorder, for the purpose of accrued benefits, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs