Citation Nr: 0006698 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 98-13 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES Entitlement to service connection for residuals of pneumonia. Entitlement to service connection for a residuals of a fat embolism. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from June 1991 to January 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim for service connection for residuals of pneumonia is not plausible. 3. The claim for service connection for residuals of a fat embolism is not plausible. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of pneumonia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for residuals of a fat embolism is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A report of inservice hospitalization from September 1994 to October 1994 for injuries sustained by the veteran in an automobile accident includes discharge diagnoses of a fat embolism syndrome and left lower lobe pneumonia, acinetobacter and enterobacter. The hospital report reflects that these conditions were serious and required extensive treatment during hospitalization, but that the veteran made rapid progress toward the end of his period of hospitalization. As a result of physical injures sustained in the automobile accident, the veteran was seen by a Medical Evaluation Board in July 1995. Among the several diagnoses rendered was left lower lobe pneumonia, resolved, did not exist prior to enlistment, not considered disabling. The matter was referred to a Physical Evaluation Board. A September 1995 Physical Evaluation Board report indicates that the veteran was unfit for duty due to persistent bilateral leg pain which was a residual of fractures to the right femur and left tibia. The veteran's resolved left lower lobe pneumonia was found to be among the conditions which were not separately unfitting and did not contribute to the unfitting condition. During the veteran's December 1995 separation examination, clinical evaluation of the veteran's chest and lungs was normal. During a January 1998 VA examination the veteran was noted to have a history of having developed a fat embolism syndrome and pneumonia during hospitalization after an inservice automobile accident. Upon examination, the veteran had no complaints of respiratory problems. The veteran reported no cough, no dyspnea, no asthma, no need for oxygen, no hemoptysis, and no melena. Upon physical examination, he had very good breathing. Even while walking with his straight cane there was no shortness of breath noted. Based on the veteran's lack of complaints and his physical condition during the examination, the examiner opined that the veteran had no pulmonary complications. The examiner's diagnosis was status post pneumonia and fat embolism syndrome, September 1994, very well treated with no residual defects. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit medical evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran has not presented a well-grounded claim, his appeal on the claim must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997). In order for a claim for service connection to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well- grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. In the present case, there is no medical diagnosis of current residuals of the veteran's inservice pneumonia or fat embolism. In other words, there is no medical diagnosis of a current disability and no medical "nexus" opinion linking a current disability to the inservice pneumonia or fat embolism. Accordingly, the claims for service connection for residuals of pneumonia and residuals of a fat embolism must denied as not well grounded. Epps; Caluza. ORDER The claim for service connection for residuals of pneumonia is denied. The claim for service connection for residuals of a fat embolism is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals