BVA9505603 DOCKET NO. 93-07 161 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for residuals of shrapnel wounds and phosphorus burns. 2. Entitlement to non-service-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from September 1950 to November 1951. This case comes to the Board of Veterans' Appeals (Board) on appeal of a March 1992 rating decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for shrapnel wounds and phosphorus burns, and denied a permanent and total disability rating for non-service-connected pension purposes. Correspondence from the veteran indicates he is seeking to either claim or appeal for VA compensation or treatment for a dental condition. (In 1952 and 1953 he was service connected for numerous teeth for treatment purposes under the law then in effect.) Dental issues have not been developed for appellate review, are not inextricably intertwined with the issues before the Board, and are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sustained shrapnel injuries and phosphorus burns while engaged in basic training during service. It is also contended that he should be eligible for non-service- connected pension benefits. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claims for service connection for residuals of shrapnel wounds and phosphorus burns, and for non-service- connected pension benefits, are not well-grounded and must be dismissed. FINDING OF FACT The veteran has not submitted evidence of plausible claims for service connection for residuals of shrapnel wounds and phosphorus burns, and for non-service-connected pension benefits. CONCLUSION OF LAW The veteran has not submitted evidence of well-grounded claims for service connection for residuals of shrapnel wounds and phosphorus burns, and for non-service-connected pension benefits. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection for Residuals of Shrapnel Wounds and Phosphorus Burns In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The threshold question to be answered concerning these issues is whether or not the veteran has presented evidence of well-grounded claims; that is, ones that are plausible, meritorious on their own, or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). If he has not presented such claims, his appeal must fail and there is no duty on the VA to assist him in the development of his claims. Id. The veteran contends that he sustained shrapnel wounds and phosphorus burns during basic training. Review of the 1950-1951 service medical records shows that at the time he was examined for entry into service, a scar on the left forearm was noted. The service medical records show no complaints or manifestations of shrapnel wounds or phosphorus burns, and on examination for separation from active duty, the only abnormality of the skin or musculoskeletal system was the left arm scar that had been noted at entry. In December 1991 the veteran filed a VA claim for compensation or pension. He said he was treated during service for a shrapnel injury and phosphorus burns; he did not indicate what part of his body was involved. He reported no pertinent post-service treatment. Post-service medical treatment records which have been submitted refer to various disorders, such as post-service injuries, but do not mention residuals of shrapnel injuries or phosphorus burns. The veteran was given an examination by the VA in January 1992. At that time, examination of the skin showed several scars including the laceration scar on the left upper forearm, a vaccination scar on the left deltoid, a one inch circular scar on the right inner ankle, and bilateral irregular scars on each cheek. Examination of the hands showed remnants of burns and minute shrapnel. For his claim to be well grounded, the veteran needs to submit competent medical evidence of causality between incidents of service and the disability for which he is claiming service connection. Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran has not submitted any evidence that the scarring noted on the examination performed by the VA in 1992 is related to service he performed 40 years earlier. Rather, he has made allegations of a relationship which, unsupported by evidence, are insufficient to render the claim plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Under these circumstances, as there is no affirmative evidence establishing a relationship between service and scarring many years later, the claims are implausible and must be dismissed as not well grounded. II. Pension Benefits The veteran filed a claim for non-service-connected pension benefits with his application for service connected compensation benefits. On that claim form, received in December 1991, he indicated that he was employed as an air traffic assistant, with an annual income of $25,670. In the occupational history section of the medical examination form which he signed in January 1992, the veteran indicated he continued to be employed in this job (which he had held since 1986). The examination showed some minor medical conditions for which the RO subsequently assigned a combined 10 percent rating. Except for filling out that portion of the VA claim form applicable to pension benefits, the veteran has not made affirmative efforts regarding this claim. He has not mentioned it in correspondence with the VA and his appeal as to this benefit was formalized by his representative. One requirement for non-service-connected pension is that a veteran be permanently and totally disabled. 38 U.S.C.A. § 1502, 1521. Under one test (the objective, or "average person" test) a veteran will be considered permanently and totally disabled if he has a lifetime disability which would render the average person unable to follow substantially gainful employment. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15. The veteran has no such disability (e.g., blindness in both eyes), nor does he allege that he does. Under a second test (the subjective, or "unemployability" test), a veteran will be considered permanently and totally disabled if he is individually unemployable as a result of a lifetime disability. 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.321(b)(2), 4.16. The fact that the veteran is gainfully employed, and has been for years, renders him ineligible under this test. See Talley v. Derwinski, 2 Vet.App. 282 (1992); Brown v. Derwinski, 2 Vet.App. 444 (1992). The veteran has not met his initial burden of submitting evidence, sufficient to justify a belief by a fair and impartial individual, that his pension claim is well grounded (i.e., plausible). 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Thus, the pension claim must also be dismissed as not well grounded. ORDER Claims for service connection for residuals of shrapnel wounds and phosphorus burns, and for non-service-connected pension benefits, are dismissed as not well grounded. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.