BVA9500240 DOCKET NO. 91-50 214 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to service connection for the residuals of a neck injury. 2. Entitlement to service connection for the residuals of a right eardrum rupture. 3. Entitlement to service connection for the residuals of a concussion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from February 1965 to December 1973. The Board of Veterans' Appeals (Board) received this case on appeal from a September 1990 rating decision. The Board remanded this case in June 1992 and August 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sustained a neck injury, a rupture of the right eardrum and a concussion in June 1969 when a mortar round exploded about 10 feet from him. 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 preponderance of the evidence supports a grant of service connection for the residuals of a right eardrum rupture and chronic cervicothoracic sprain. It also is the decision of the Board that the veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a well-grounded claim of service connection for the residuals of a concussion has been presented. FINDINGS OF FACT 1. The veteran probably has residuals of a right eardrum rupture suffered in service. 2. The veteran's chronic cervicothoracic sprain probably began in service. 3. The veteran has not submitted competent evidence to show that he has residuals of a concussion. CONCLUSIONS OF LAW 1. The residuals of the right eardrum rupture and the chronic cervicothoracic sprain are due to injuries which were incurred in wartime service. 38 U.S.C.A. §§ 1110, 1154, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1993). 2. The veteran has not submitted evidence of a well-grounded claim of service connection for the residuals of a concussion. 38 U.S.C.A. §§ 1110, 1154, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Residuals of a Right Eardrum Rupture and the Residuals of a Neck Injury The service medical records show that the veteran was seen in June 1969 with slight swelling at the edge of the right ear canal that was due to trauma. A consult was requested due to a possible perforation of the right tympanic membrane. The balance of the service medical records does not include references to any event related to the claimed mortar round explosion; however, the veteran was in combat in Vietnam. 38 U.S.C.A. § 1154(b) provides that lay evidence concerning an injury during combat is sufficient proof of service connection if consistent with the conditions of service. Thus, the veteran's statements concerning the nature of the eardrum injury carry significant probative weight. The examination by VA in 1987 revealed findings of minimal scarring of the right tympanic membrane, and the Board finds that a basis has been presented for the grant of service connection. Accordingly, service connection for the residuals of the right eardrum rupture is warranted. The postservice medical record is significant in regard to the claim of service connection for the residuals of a neck injury because it contains evidence of current disability consistent with the history of injury related by the veteran. A fee-basis examiner, in connection with recent evaluations, has indicated the veteran was suffering from a chronic cervicothoracic sprain due to injury sustained in service. In connection with a July 1991 examination, the doctor indicated that, based on his evaluation and the provided history, the veteran had "predominantly cervical muscular problems" which were "on a more probably than not basis related to the injury in the service in 1969." Following an examination in April 1993, the doctor reported the pertinent diagnosis as being that of chronic cervicothoracic sprain. Accordingly, based on a review of the evidence of record, the Board finds that service connection is warranted for chronic cervicothoracic sprain. II. Residuals of a Concussion The threshold question to be answered is actually always whether the veteran has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In short, VA is not required to adjudicate a claim until after the veteran has met his initial burden of submitting a well-grounded one. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). This means in this case that, initially, there must be submitted competent evidence showing that he actually has disability due to disease or injury which was incurred in or aggravated by service. Brammer v. Derwinski, 3 Vet.App. 223 (1992). However, the veteran has submitted no medical evidence to establish the presence of any specific disability which can be attributed to the claimed concussion in service. Hence, a well-grounded claim has not been presented. See Grottveit. ORDER Service connection for the residuals of a right eardrum rupture and chronic cervicothoracic sprain is granted. As a well-grounded claim of service connection for the residuals of a concussion is not presented, the appeal of this matter is dismissed. The RO should take appropriate adjudicatory action consistent with this decision in regard to this matter. STEPHEN L. WILKINS 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.