Citation Nr: 21025313 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-13 998A DATE: April 27, 2021 ORDER Entitlement to accrued benefits based on a prior adjudicated claim or appeal is dismissed. REMANDED Entitlement to dependency and indemnity compensation (DIC) based upon service connection for the cause of the Veteran’s death is remanded. INTRODUCTION The Veteran served on active duty from February 1951 to March 1954. He died in March 2015, and the Appellant is his surviving spouse. FINDING OF FACT At the time of his death in March 2015, the Veteran did not have a claim or appeal pending. CONCLUSION OF LAW There being no justiciable case or controversy with regard to entitlement to accrued benefits, the Appellant’s appeal is dismissed. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSION 38 U.S.C. § 5121A provides, in pertinent part, that if a claimant dies while a claim or appeal is pending: [A] living person who would be eligible to receive accrued benefits due to the claimant under [subsection (a) of the accrued benefits statute] may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. This section does not apply to prior claims where, as in this case, notice of the decision was provided prior to death of the claimant and no appeal was filed prior to death. In this case no claim or appeal was pending at the time of the Veteran’s death. Accordingly, there is no justiciable case or controversy regarding entitlement to accrued benefits. See 38 U.S.C. § 7105; see also 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000 (stating accrued benefits may be paid when a claim for VA benefits had not been finally adjudicated on or before the date of death). Thus, the Board does not have jurisdiction to review the appeal on this matter, and the claim must be dismissed. REASONS FOR REMAND Dependency and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). 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). The evidence indicates the Veteran died of severe sepsis and aspiration pneumonia, recurrent; with congestive heart failure, chronic obstructive pulmonary disease, chronic kidney disease and adrenal insufficiency. The Veteran’s service treatment records (STRs) indicate he was diagnosed and treated for pneumonia on two separate occasions during his period of military service. Additionally, the evidence indicates he was wounded by small arms fire during his time in Korea, and the Appellant has asserted his gunshot wound may have contributed to his pneumonia recurrences. She also reported the Veteran experienced pneumonia roughly four times per year following his discharge from active duty. The Board also observes a September 1984 lateral chest radiograph, which revealed evidence of old granulomatous changes in the right lower lung. Additionally, the Appellant has provided an August 2020 statement from Dr. C.B., wherein the clinician found the Veteran’s death was the result of his in-service gun shot wound, which severely damaged his left lung. Unfortunately, the Board finds this opinion provides limited probative value for multiple reasons. First, the clinician initially acknowledged he did not review the Veteran’s STRs, as he believed those records were destroyed. More importantly, the Veteran’s STRs indicate he sustained a through-and-through gunshot wound which initially penetrated the anterior portion of his lower left arm and exited through the posterior section of his arm. Repeat radiographs taken thereafter revealed no evidence of infiltrates or pulmonary damage. Nonetheless, the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In this case the Veteran experienced repeat episodes of pneumonia in service. Evidence shows he was noted to have old granulomatous changes of the lungs in 1984. The Veteran died in March 2015 as a result of severe sepsis due to or as a consequence of aspiration pneumonia recurrent. Based on the foregoing, the Board finds sufficient evidence to obtain a comprehensive medical opinion in this case. Accordingly, this case is REMANDED for the following actions: 1. Obtain a VA medical opinion from a Pulmonologist with sufficient expertise to address the etiology of the Veteran’s recurrent pneumonia. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a comprehensive review of the relevant records and lay statements, the examiner should address the following questions: a) Please state whether the Veteran’s recurrent pneumonia was at least as likely as not (a 50 percent probability or greater) incurred in service; and b) Please also state whether the Veteran’s recurrent pneumonia was at least as likely as not (a 50 percent probability or greater) caused or worsened to any degree by his service-connected gunshot wound, muscle V and VI. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Appellant’s reports of ongoing pneumonia during and following service, the 1984 radiographic findings of old granulomatous changes of the lungs, and the Veteran’s recurrent pneumonia in service. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, Counsel 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.