Citation Nr: 18150789 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-58 922 DATE: November 15, 2018 ORDER Entitlement to service connection for a back condition (claimed as a gunshot wound to the lower back), for accrued benefits purposes, is denied. Entitlement to service connection for a bilateral foot condition, for accrued benefits purposes, is denied. Entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, is denied. Entitlement to service connection for tinnitus, for accrued benefits purposes, is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include depression, anxiety, and any mental condition, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a back condition due to a disease or injury in service, to include a specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran had a bilateral foot condition due to a disease or injury in service, to include a specific in-service event, injury, or disease. 3. The preponderance of the evidence of record is against finding that the Veteran had, or had had at any time during the appeal, a current diagnosis of bilateral hearing loss. 4. The preponderance of the evidence of record is against finding that the Veteran had, or had had at any time during the appeal, a current diagnosis of tinnitus. 5. The preponderance of the evidence of record is against finding that the Veteran had, or had had at any time during the appeal, a current diagnosis of PTSD, to include depression, anxiety, and any mental condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2018). 2. The criteria for service connection for a bilateral foot condition, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2018). 3. The criteria for service connection for bilateral hearing loss, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2018). 4. The criteria for service connection for tinnitus, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2018). 5. The criteria for service connection for PTSD, to include depression, anxiety, and any mental condition, for accrued benefits purposes, are not met. 38 U.S.C. §§ 1110, 5107(b), 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the spouse of the Veteran who served on active duty from June 1969 to August 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in May 2014. However, at the time of his death he had a pending claim for service connection for PTSD, to include depression, anxiety, and any mental condition, a bilateral foot condition, bilateral hearing loss, tinnitus, and a back condition, filed in April 2014. In October 2014, the appellant filed a request for substitution of claimant upon death of claimant and in May 2015 she filed an application for accrued amounts due to a deceased beneficiary. The RO issued a February 2016 rating decision denying service connection for PTSD, a bilateral foot condition, bilateral hearing loss, tinnitus, and a back condition. In September 2016, the appellant filed an application for dependency and indemnity compensation, death pension, and/or accrued benefits. In an October 2016 rating decision, the RO granted the appellant service connection for cause of death and basic eligibility to dependents’ educational assistance. However, in November 2016, the appellant filed a notice of disagreement, requesting the RO continue processing the Veteran’s claim for service connection for PTSD, a bilateral foot condition, bilateral hearing loss, tinnitus, and a back condition as an accrued benefits claim. These claims are now before the Board. Accrued Benefits and Service Connection A claim for accrued benefits is derivative in nature. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1994). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) the United States Court of Appeals for the Federal Circuit (hereafter Federal Circuit) held that, together, 38 U.S.C. §§ 5101 and 5121 compel the conclusion that for a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to accrued benefits under existing ratings or decisions (comporting with Zevalkink) that an “accrued benefits claim is derivative”. Thus, where there was a claim pending on the date of the Veteran’s death, there may legally be a claim for accrued benefits if, as here, the accrued benefits claim is timely filed. 38 U.S.C. § 5121(c) and 38 C.F.R. § 3.1000(c). A claim for dependency and indemnity compensation (DIC) filed within one year after the veteran’s death is deemed to include and ‘shall also be considered’ a claim for accrued benefits under 38 U.S.C. § 5101(b)(1) and 38 C.F.R. § 3.1000(c). Satchel v. Derwinski, 1 Vet. App. 258, 259 (1991); Isenhart v. Derwinski, 3 Vet. App. 177, 179 (1992) and Shields v. Brown, 8 Vet. App. 346 (1995). Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for a back condition (claimed as a gunshot wound to the lower back). Following the Veteran’s original claim for service connection for a back condition, VA received medical records from the Fayetteville North Carolina VA Medical Center as well as the Veteran’s service treatment records. Resolving all reasonable doubt in favor of the Veteran, the Board finds a current disability as the Veteran reported and was noted to have chronic lower back pain in May 2014. Again, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran had an in-service event, as service treatment records show spine x-rays in September 1970 and February 1977, indicating the Veteran complained of back pain during service. However, no defects or diagnoses were noted on the x-ray results or on the Veteran’s August 1977 separation exam. Moreover, because the Veteran died shortly after filing his claim for service connection, he provided no statements as to whether the alleged gunshot wound occurred during service, and his service treatment records do not show any treatment for a gunshot wound. Therefore, the preponderance of the evidence is against the finding of a nexus between the Veteran’s May 2014 lower back pain and his back pain during service. The records contain no medical opinions connecting the two and the Veteran died before a VA examination could be performed. The Veteran also waited to file a claim for service connection for his back condition until 37 years after he separated from service. As such, the preponderance of the evidence is against the finding of a nexus, entitlement to service connection for a back condition (claimed as a gunshot wound to the lower back), for accrued benefits purposes, is denied. 2. Entitlement to service connection for a bilateral foot condition. As with the Veteran’s back condition, resolving all reasonable doubt in favor of the Veteran, the Board finds a current disability as treatment records from March 2014 note that the Veteran’s foot pain is likely from low arch or plantar fasciitis. It was again noted in May 2014 records that the Veteran has “chronic foot pain to lower back.” Despite the fact that no defects or diagnoses were listed in the final section of the report, and that it is unclear from the record whether the Veteran or the examiner made this note, resolving all reasonable doubt in favor of the Veteran, the Board finds an in-service injury as on the Veteran’s August 1977 separation exam bilateral flat feet is noted. Nevertheless, the preponderance of the evidence is against the finding of a nexus opinion. The record contains no medical opinions connecting the Veteran’s 2014 bilateral foot condition with his in-service flat feet. Moreover, the Veteran did not file a claim for service connection for this condition until 37 years after his separation from service. As the preponderance of the evidence is against the finding of a nexus, entitlement to service connection for a bilateral foot condition, for accrued benefits purposes, is denied. 3. Entitlement to service connection for bilateral hearing loss. A review of the record does not show the Veteran had a current disability of bilateral hearing loss for VA purposes. The Veteran’s audiometer on his August 1977 separation exam does not meet the requirements of impaired hearing under 38 C.F.R. § 3.385. Additionally, while “hearing difficulty” is listed in March 2014 medical records, no additional audiological testing was completed, as required to determine hearing loss for VA purposes. Since the record does not support a finding of a current disability, entitlement to service connection for bilateral hearing loss, for accrued benefits purposes, is denied. 4. Entitlement to service connection for tinnitus. As with the Veteran’s hearing loss, there is no evidence of a current disability of tinnitus in the record. On his application for service connection, the Veteran only listed the Fayetteville VA as possessing medical records for his listed disabilities. A review of the service treatment records and Fayetteville VA medical records following separation make no mention or complaint of tinnitus. As the record does not support a finding of a current disability, entitlement to service connection for tinnitus, for accrued benefits purposes, is denied. 5. Entitlement to service connection for PTSD, to include depression, anxiety, and any mental condition. Finally, as with the Veteran’s hearing claims, the record does not show a current diagnosis of PTSD, depression, anxiety, or any other mental condition. The Veteran underwent PTSD and depression screening in March 2014 at the Fayetteville VAMC, both of which came back negative. Moreover, the Veteran’s service treatment records show mild nervousness, but no psychiatric diagnoses. All of the Veteran’s in-service physicals were silent for any mental health conditions, and a mental status evaluation at separation found the Veteran to have normal behavior and thought content, a level mood, and no significant mental illness. The only mention of a potential mental health diagnosis during service was in July 1974 wherein it was noted that the Veteran was having hyperventilation during “jumps” which was noted to be possibly related to anxiety. The Veteran died before he could be scheduled for a VA examination and the medical records of file do not show any mental health diagnoses at any time. As the record does not support a finding of a current disability, entitlement to service connection for PTSD, to include depression, anxiety, and any mental condition, for accrued benefits purposes, is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel