BVA9503573 DOCKET NO. 92-11 030 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for shrapnel wounds of the calves. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from February 1969 to December 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1990 rating decision from the Manchester, New Hampshire, Regional Office (RO). Thereafter, the case was transferred to the Salt Lake City, Utah, Regional Office. The Board remanded the case, and the case was returned for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran was wounded during service and that he was awarded the purple heart. It is argued that the VA failed to properly follow the provisions of 38 U.S.C.A. § 1154 (West 1991). 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 claim for service connection for shrapnel wounds of the calves is not well grounded. FINDING OF FACT The veteran does not have current disability due to shrapnel wounds of the calves. CONCLUSION OF LAW The claim for service connection for shrapnel wounds of the calves is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION This case was previously before the Board and was remanded. As a result of the remand, service connection was granted for shrapnel and gunshot wounds of the lower back and right leg. The issue returned for appeal is entitlement to service connection for shrapnel wounds of the calves. At the outset, the Board does not doubt that the veteran served in Vietnam or that he was wounded in action against the enemy. There is no doubt that the veteran received the purple heart medal and the veteran is competent to testify that he was wounded. See 38 U.S.C.A. § 1154 (West 1991). The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for shrapnel wounds of the calves. 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). In order to warrant a grant of service connection there must have been an inservice disease or injury and a current disability as a result of the inservice disease or injury. Again, the Board believes that the veteran sustained shrapnel wounds of the calves during a tour of duty in Vietnam. However, the law and regulations require current disability in addition to the inservice injury. 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). Although the veteran is competent to establish that he was wounded in combat, there must also be competent evidence of a current disability, such as muscle loss, a retained foreign body, neurologic deficit or scar that reflects the presence of disability. In June 1993, a VA examination was conducted, and in part due to the findings of the examination, service connection was granted for the wounds to the back and right leg. However, the detailed examination also demonstrated that the veteran did not have current disability as a result of the inservice wounds to the calves. There was no medical evidence of retained foreign bodies, no evidence of neurologic deficit, no evidence of residual scar, no evidence of muscle damage and no evidence of impairment of function due to the wounds. Although many veterans may be of the belief that service connection is warranted because of an inservice injury, the United States Court of Veterans Appeals has held that such belief 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). In deciding that the claim is not well grounded, the Board has considered the provisions of 38 U.S.C.A. § 1154 (West 1991); and 38 C.F.R. § 3.306 (1993). Because of such provisions, the Board has conceded that the veteran is competent to establish that the injury to the calves took place. However, the law still requires the presence of current disability. The objective evidence disproves the presence of current disability, thus rendering the claim not well grounded. In regard to the veteran's testimony, the bulk of the testimony involved the veteran's other wounds, rather than establishing current disability as a result of the calf wounds. Regardless, the veteran's testimony, to the effect that he has current disability due to the wounds, involves a question of medical causation or diagnosis. The veteran, as a layman, does not possess the medical skill required to establish a diagnosis. As such, his testimony is not sufficient to establish a well grounded claim. Because there is no credible evidence of current disability, the claim is not well grounded and the appeal is dismissed. The veteran is informed that a dismissal, as distinguished from a denial, is to his benefit. If the veteran is able to establish the presence of current disability he may file a new claim and not have to overcome the finality that would attach to a decision on the merits. ORDER The appeal is dismissed. H. N. SCHWARTZ 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.