Citation Nr: 21042631 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-11 535 DATE: July 13, 2021 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran's death certificate shows that he died in November 1997. 2. A May 1994 rating decision that denied the Veteran's increased rating claims for otitis and media and externa, and bilateral high frequency hearing loss became final, because the Veteran did not appeal that decision timely; thus, the Veteran did not have any pending appeals for VA benefits at the time of his death. 3. The evidence of record does not show that the Veteran's service-connected scars on his right shoulder and chest area warranted compensable disability rating; thus, the Veteran would not have prevailed on the increased rating claim for scars, had the issue have been adjudicated in 1994 prior to his death. 4. The Veteran did not have any other due and unpaid VA benefits at the time of his death. CONCLUSION OF LAW The criteria for accrued benefits have not been met. 38 U.S.C. § 5121, 7105 (2012); 38 C.F.R. §§ 3.104, 3.1000 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. The Veteran's death certificate shows that he died in November 1997, and the appellant is his surviving widow. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the issue of entitlement to service connection for cause of the Veteran's death was also on appeal, but that claim was granted by the RO in its December 2018 rating decision. Thus, the only remaining issue on appeal is whether the appellant is entitled to accrued benefits. In August 2020, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. The appellant is seeking entitlement to accrued benefits. Periodic monetary benefits to which a veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as "accrued benefits." 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2020); see also Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). 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) (2012); 38 C.F.R. § 3.1000 (2020); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Only evidence contained in the claims file at the time of the Veteran's death will be considered when reviewing a claim for accrued benefits. At the time of his death, the Veteran was service-connected for: scars of right shoulder, at 0 percent disabling from January 29, 1970; scars of right posterior chest region, at 0 percent disabling from January 29, 1970; history of otitis media and externa, at 0 percent disabling from June 1, 1984; and bilateral high frequency hearing loss, at 0 percent disabling from June 1, 1984. The Veteran was receiving a 10 percent rating for multiple noncompensable service-connected disabilities at the time. The appellant has not made a specific argument asserting that there was a pending claim at the time of the Veteran's death. However, after a review of the Veteran's claims file, the Board found that he had made an increased rating claim for his "service-connected conditions" in January 1994 and contended that his conditions have worsened. Following the Veteran's January 1994 claim, the Veteran underwent a VA audiological evaluation in April 1994. Based on the findings from the April 1994 evaluation, the RO denied the Veteran's entitlement to increased ratings for his service-connected otitis media and externa, and bilateral hearing loss. See May 6, 1994 Rating Decision. The Board finds that the May 1994 rating decision that denied the Veteran's increased rating claims for otitis and media and externa, and bilateral high frequency hearing loss became final, because the Veteran did not appeal that decision timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104 (2020). Therefore, the Board finds that the Veteran did not have any pending appeals for VA benefits at the time of his death. With the Veteran's general increased rating claim in January 1994 for his "service-connected conditions," the Board resolves reasonable doubt in the Veteran's favor and concludes that the RO should have also adjudicated on whether he was entitled to compensable ratings for his service-connected scars of right shoulder and chest area. Thus, now the Board will examine whether the Veteran should have received higher ratings for his service-connected scars prior to his death. The records reflect that the Veteran's scars were evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7805. At the time of the Veteran's increased rating claim in 1994, compensable rating of 10 percent for scars were warranted for superficial and poorly nourished scars with repeated ulceration; or, superficial scars that were tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (1994). Diagnostic Code 7805 at that time provided an instruction to rate the scars on limitation of function of the body part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1994). After a review of the Veteran's medical records associated with his claims file prior to his death, the Board finds that the evidence does not show that the Veteran's scars on his right shoulder and chest area became painful or that his scars started to result in limitation of function of his right shoulder or chest area. Also in this regard, the Board notes that the Veteran did not express any disagreement to an October 1970 rating decision, in which the RO found that the Veteran's scars were well-healed and non-adherent and that he had normal range of motion of joints. In light of the foregoing, the Board finds that the evidence of record does not show that the Veteran's service-connected scars on his right shoulder and chest area warranted compensable disability rating; thus, the Veteran would not have prevailed on the increased rating claim for scars, had the issue have been adjudicated in 1994 prior to his death. Moreover, the Board finds that the evidence of record does not show that the Veteran had any other due and unpaid VA benefits at the time of his death. Consequently, the appellant's entitlement to accrued benefits is not warranted, and her claim must be denied. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, Associate 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.