Citation Nr: 21063393 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-36 974 DATE: October 14, 2021 ORDER Entitlement to service connection for a bilateral ear disorder for accrued benefits purposes is denied. Entitlement to service connection for a pulmonary/respiratory disability, diagnosed as sinusitis, for accrued benefits purposes is granted. REMANDED Entitlement to service connection for a pulmonary/respiratory disability, other than sinusitis, is remanded. FINDINGS OF FACT 1. At the time of the Veteran's death, he did not have a current diagnosis of a bilateral ear disorder. 2. At the time of the Veteran's death, the evidence of record showed his chronic sinusitis had its onset during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral ear disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for sinusitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1965 to June 1967. The Veteran died in February 2015. The appellant is the Veteran's surviving sister and has properly elected to proceed with the claims for accrued benefits purposes. This matter comes before the Board of Veterans' Appeals (Board) from a December 2016 denial letter issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board acknowledges the appellant also filed a claim for entitlement to burial benefits and plot allowance and subsequently initiated an appeal but did not perfect the appeal by submitting a VA Form 9 on this issue. Thus, the issue is not before the Board and will not be discussed further. Service Connection for Accrued Benefits Purposes General Accrued Benefits Law Accrued benefits are benefits to which a veteran 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. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the Appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The substance of the survivor's claim is purely derivative from any benefit to which the Veteran might have been entitled at his death; that is, the survivor cannot receive any benefit that the Veteran could not have received. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). In considering the Appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the Veteran's death is evaluated. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the United States Court of Appeals for Veterans Claims (Court) held that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the file until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on date of death. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitutions of claimants in the case of death of a claimant. 38 U.S.C. §§ 5121, 5121A. When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted. Here, the appellant elected for the claims to be processed as accrued benefits (see March 2020 VA Form 21-0820) thus, only evidence that existed at the time of the Veteran's death will be considered. Service Connection Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In order to be considered for service connection, a claimant must first have a current disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a bilateral ear disorder for accrued benefits purposes is denied. Here, the first element of service connection is not met, as a preponderance of the evidence of record does not reveal the Veteran had a current diagnosis of any bilateral ear disorder at the time of his death. Specifically, while the Veteran's post-service VA treatment records show a history of cerumen in his ears (see November 2010 through February 2015 VA treatment records), the September 2014 VA examiner, after conducting an examination and thorough review of the claims file, determined the Veteran did not have a current disability in either ear. To this end, the examiner explained that the Veteran's production of cerumen (ear wax) is not a disability, rather it is a normal physiologic process, with a wide range of individual variance in 'normal' amount of cerumen produced and that he had the ability to hear "but must rely on appropriate ear canal hygiene", and that cerumen is a symptom of insufficient hygiene and not a disability; thus, the Board finds that there is no competent evidence of a current bilateral ear disorder at the time of the Veteran's death and the claim fails on this basis alone. See Brammer, 3 Vet. App. 223; McClain, 21 Vet. App. 319; see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (a disability for VA compensation purposes exists where pain causes functional impairment). To the extent the Veteran asserted prior to his death and/or the appellant currently asserts that he had a current bilateral ear disorder prior to his death, neither of their opinions are competent in this regard. Specifically, while competent to attest to symptoms, they do not have the requisite expertise to diagnose an underlying bilateral ear disability. Thus, the first element of service connection is not met, and the claim fails on this basis alone. Regarding element two, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) are silent for complaints, symptoms, treatment, or diagnosis of any bilateral ear disability. Notably, at the time of the Veteran's death, he had not asserted how his claimed bilateral ear condition was incurred in or otherwise related to service. Thus, direct service connection also fails on this basis alone. Lastly, regarding the final element of direct service connection, nexus, as no current disability or in-service incurrence of a disease or injury was demonstrated at the time of the Veteran's death, an opinion from the September 2014 VA examiner was not required and thus not given. Thus, element three of direct service connection is also not established. As a preponderance of the competent evidence shows at the time of the Veteran's death he did not have a current diagnosis of any bilateral ear disorder at any time during or just prior to the appeal period, the first element of service connection is not met, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied on this basis alone. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a pulmonary/respiratory disability, diagnosed as sinusitis, for accrued benefits purposes is granted. Here, the September 2014 VA examiner diagnosed the Veteran with sinusitis. See September 2014 VA examination report. Element two is also satisfied, as service treatment records (STRs) show diagnoses of acute sinusitis, several episodes of sinusitis, and chronic sinusitis. See October 1966 and January 1967 STRs. Regarding element three, nexus, the September 2014 VA examiner, who noted review of the Veteran's STRs and considered the Veteran's diagnosis of chronic sinusitis during service and determined the Veteran had a current diagnosis of the same condition and that there was sufficient documentation to show that problems with "seasonal allergies" arose during service, thereby establishing a nexus to service. Critically, there is no competent medical opinion to the contrary. Thus, all elements are met, and service connection is established. REASONS FOR REMAND 3. Entitlement to service connection for a pulmonary/respiratory disability, other than sinusitis, is remanded. Pursuant to the Board's November 2013 remand directives, the Veteran was afforded a VA examination in September 2014. Although, as noted above, the Board may only consider evidence of record at the time of the Veteran's death, the Board must still ensure substantial compliance with prior remand directives. In this regard, the Board asked the examiner to: clearly identify all current pulmonary or respiratory disability(ies), to include bacterial pneumonia, COPD, and/or environmental allergies. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service-to include the assessments of polyserositis and collagen disease in service. However, although the examiner diagnosed asthma, restrictive lung disease, and sinusitis, he did not provide a nexus opinion on each disability, as specifically requested by the Board. Additionally, the examiner indicated that "seasonal allergies" were incurred during service but provided no corresponding diagnosis of the same and therefore the opinion is unclear in this regard. Thus, for these reasons, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board's November 2013 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from a VA examiner other than the September 2014 examiner to determine the nature and etiology of the Veteran's respiratory/pulmonary disabilities. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Determine whether the Veteran had a current disability for "seasonal allergies", other than sinusitis, at the time of his death and indicate the corresponding diagnosis. See September 2014 VA examination report. (b) Please render two separate opinions on whether it is at least likely as not that diagnosed (i) asthma and (ii) restrictive lung disease had their onset during service or are otherwise related to service. In addressing these questions, the examiner should provide a nexus opinion on whether the Veteran's current disabilities are medically consistent with the documented in-service notations of chest pains, polyserositis, acute respiratory disease, pneumonia, collagen vascular disease. See February 1966, June 1966, October 1966, and January 1967 STRs. Otherwise, the opinion will be returned as inadequate. A comprehensive rationale for each opinion must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.