BVA9501478 DOCKET NO. 93-09 212 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of concussion. 2. Entitlement to service connection for malaria. 3. Entitlement to service connection for bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from March 1955 to March 1959. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision from the Houston, Texas, Regional Office (RO). The veteran's VA Form 1-9 may have included a notice of disagreement in regard to different issues. Such issues are not before the Board and are not inextricably intertwined with the issues on appeal. The regional office is instructed to review the VA Form 1-9. CONTENTIONS OF APPELLANT ON APPEAL It is contended that service connection is warranted for residuals of a concussion, malaria NAD bronchitis. It is maintained that he contracted malaria in the Far East, that he was hospitalized for a lung condition, and that he had a head injury. 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 evidence supports a grant of service connection for residuals of concussion. The claim for service connection for malaria and bronchitis is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The evidence tends to establish that the veteran has headaches as a residual of inservice head injury. 3. Satisfactory evidence of current bronchitis or malaria has not been presented. CONCLUSIONS OF LAW 1. Residual of concussion (headaches) was incurred during peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1993). 2. The claim for service connection for malaria and bronchitis is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Concussion The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). He has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The service medical records reflect that the veteran had been knocked down, that the head had been struck, and that he had been unconscious all night. In 1991, A VA examiner commented that the veteran had a history of head injury with loss of consciousness The diagnosis noted that the veteran had residual headaches which by description are of a tension type but which he relates to his head injury. The Board notes that the opinion of the examiner is not contradicted. Regulations 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) (1993). The regional office was at liberty to supplement the record, seek additional opinion, or have an examiner review the record with the benefit of the claims file. At this time, there is probative evidence of an inservice head injury and competent evidence attributing headaches to such injury. In the absence of competent evidence to the contrary, service connection is warranted. 38 U.S.C.A. § 5107. II. Bronchitis and Malaria The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for bronchitis and malaria. If he has not presented a well-grounded claim, the appeal must fail. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As we explain below, we find that the claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations 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) (1993). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. 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. 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. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). The service medical records are completely negative for complaints findings or manifestations of malaria. In regard to bronchitis, a possible respiratory abnormality was suspected during service. However, no disability was identified or diagnosed. We also note that the record lacks evidence of the claimed conditions in proximity to separation from service or attributing the claimed disabilities to service. Regardless of the negative inservice records and the silent immediate post service records, there is a fundamental basis for denying the claim. The appellant has not produced any evidence that would tend to show a presently existing disability. The 1991 VA examination did not result in a diagnosis of current bronchitis or malaria. He apparently is of the belief that he is entitled to some sort of benefit simply because he believes that he may have had a disease or injury while on active service. That, of course, is mistaken. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). At this time, there is a lack of credible evidence that the veteran had malaria or bronchitis during service and a lack of evidence tending to establish that he has current residuals of bronchitis or malaria. In the absence of current disability and the absence of credible evidence linking such disability to service, the claim is not well grounded and must be dismissed. ORDER Service connection for residuals of a concussion is granted. The appeal for service connection for malaria and bronchitis is dismissed. H. N. SCHWARTZ Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.