BVA9501517 DOCKET NO. 93-10 466 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of pneumonia including a breathing disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from April 1952 to January 1954. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had pneumonia in November and December 1952, for which he was treated at Fort Lee Hospital, and that residuals of same continued after service. He claims that he currently has residuals of pneumonia including a breathing problem. He asserted in his substantive appeal of April 1993 that his breathing problem had worsened, causing him to seek Department of Veterans Affairs (VA) treatment, where he learned that he had scar tissue on his lungs and asthma. His VA doctor reportedly told him that "I cannot say that the pneumonia caused this condition, and I cannot say that the pneumonia did not cause this condition, but it could have very well done so. I don't know." The veteran claims that his only bout of pneumonia was in service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 veteran has not presented evidence of a well grounded claim for service connection for residuals of pneumonia including a breathing disorder. FINDING OF FACT Pneumonia was not shown in service, and post-service evidence is insufficient to make out a plausible claim that pneumonia began in service and that residuals, including a breathing disorder, are currently present. CONCLUSION OF LAW The veteran's claim for service connection for residuals of pneumonia including a breathing disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110 (West 1991). 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) (1994). The threshold question to be addressed is whether the veteran has presented a well grounded claim for service connection. If he has not presented a well grounded claim, then his appeal must fail and there is no duty to assist him further in the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). One element of a well grounded claim is a presently existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. Brammer v. Derwinski, 3 Vet.App. 223 at 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). A review of the service medical records indicates that the veteran gave a history at examination in January 1952 of having had whooping cough. No pertinent abnormalities were found. He was hospitalized in September 1952 at the Army hospital in Fort Lee, Virginia, for a common cold and was released 3 days later as "improved." Chest X-ray at that time was negative for abnormality. He had a chest cold in December 1952, and a cold with a runny nose in February 1953. In July 1953 he had a sore throat. In November 1953, he had coryza with a cough and bronchitis. At separation medical examination in January 1954, the lungs and chest, and mouth and throat were normal. The veteran gave a history of having had whooping cough in the past. He said he had never had asthma or pneumonia, or shortness of breath. Chest X-ray at that time was negative for abnormality. In March 1958, at reserve medical examination, the lungs and chest, and mouth and throat were normal. The veteran gave a history of having had whooping cough in the past, but said he had had no asthma or shortness of breath. Chest X-ray was negative for abnormality. We have considered all of the relevant evidence. We recognize that the veteran has provided information as to the events occurring in service and thereafter to the best of his ability. However, his allegations regarding his claimed pneumonia in service, essentially, concern medical issues. The United States Court of Veterans Appeals has held that the "quality and quantity" of the evidence required to meet the statutory burden of presenting a well grounded claim will "depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet.App. 91, 92- 93 (1993). We appreciate that the claims file contains no post- service medical evidence. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Here, the medical evidence does not support a current diagnosis of residuals of pneumonia including a breathing problem. Therefore, service connection for this disorder could not be granted on any basis. Brammer v. Derwinski, 3 Vet.App. 223 at 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In addition, the veteran's report that he has been told that he has asthma and scarring which could be attributable to pneumonia in service is not sufficient, since he is a layperson and the reported opinion is equivocal at best. While the veteran asserts that he had pneumonia in service, current pneumonia or residuals thereof must be shown in order for the claim to be well grounded. Since the medical evidence does not show that the veteran currently has the disorder or residuals thereof, his claim is not well grounded. Nor does any medical evidence link the veteran's current complaints to service or the service years. No duty to assist him in further developing the claim, or to further address the various related arguments, therefore, arises. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). ORDER The claim for service connection for residuals of pneumonia including a breathing disorder is dismissed. WILLIAM J. REDDY 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.