BVA9502953 DOCKET NO. 93-10 179 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tuberculosis, Parkinson's disease, and heart disease including hypertension. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from February 1959 to August 1961. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently has tuberculosis, Parkinson's disease, and heart disease including hypertension, that justifies the payment of compensation or pension. He maintains that he is unable to work as a result of these medical problems. Therefore, he asserts that he is entitled to a permanent and total disability rating for pension purposes. 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 failed to present evidence of well grounded claims for service connection for tuberculosis, Parkinson's disease, and heart disease including hypertension. It is the decision of the Board that the veteran has failed to state a claim for a permanent and total disability rating for pension purposes upon which relief can be granted; accordingly, this claim is denied. FINDINGS OF FACT 1. No competent evidence links the post-service tuberculosis, Parkinson's disease, or heart disease including hypertension, to the service years or events in service. 2. The veteran had no active wartime service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of well-grounded claims for service connection for tuberculosis, Parkinson's disease, or heart disease including hypertension. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted a claim for a permanent and total disability rating for pension purposes on which relief may be granted. 38 U.S.C.A. § 1521 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active peacetime service. 38 U.S.C.A. § 1131 (West 1991). Where a veteran served for 90 days or more during peacetime, and heart disease including hypertension, or an organic disease of the nervous system, including Parkinson's disease, develops to a degree of 10 percent or more within one year from date of service separation, or tuberculosis becomes manifest to a degree of 10 percent within 3 years of service discharge, then such disease may be service connected even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The threshold question to be addressed regarding the service connection claims is whether the veteran has presented well grounded claims. If he has not presented well grounded claims for service connection, then these appeals must fail and there is no duty to assist him further in the development of these claims. 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). "In order for the veteran [to be granted service connection] . . . .there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury." Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Because there was no such evidence in Rabideau, the claim was not plausible and, therefore, was not well grounded. Rabideau at 144. The veteran's service medical records reveal no evidence of tuberculosis, Parkinson's disease, or heart disease including hypertension, either at service entrance, during service, or at service separation. In March 1961 he was treated for influenza, virus undetermined, and released after recovery. At service separation medical examination in August 1961, the lungs and chest, heart, and neurologic evaluations were all normal; a chest X-ray was negative for abnormalities. In his October 1992 application for compensation or pension, the veteran asserted that tuberculosis began in 1970, that Parkinson's disease began in 1991, that heart disease began in 1982, and that abnormal blood pressure began in about 1982. When the veteran was hospitalized at a VA facility in March to April 1988, the final diagnoses included history of tuberculosis, hypertension, and old myocardial infarction. Private medical records have been received showing an initial diagnosis of tuberculosis in 1970. Department of Veterans Affairs (VA) records dated from August to October 1982 document a reactivation of tuberculosis. The veteran was hospitalized at a VA facility in March and April 1988, following which the pertinent diagnoses were history of tuberculosis, hypertension and old myocardinal infarction. VA outpatient treatment records dated in October 1992 indicate an impression of Parkinson's disease. A VA medical examination in December 1992 revealed diagnoses of hypertensive cardiovascular disease, Parkinson's disease, and residuals of pulmonary tuberculosis with scarring, in pertinent part. In his April 1993 substantive appeal, the veteran asserted having a long history of tuberculosis, having had known Parkinson's disease for 4 or 5 years, and having had heart disease for 8 to 10 years. The issue is whether the veteran's tuberculosis, Parkinson's disease, and heart disease including hypertension began in or are otherwise attributable to service. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.307, 3.309. The answer to this question requires medical findings because these disorders first became manifest many years after service. The Board's decision makers "may consider only independent medical evidence to support their [medical] findings." Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The veteran, as a medically untrained person, is not qualified to render an opinion of evidentiary weight as to the etiology of his diseases. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The medical treatment records and the VA examination are silent for any etiological link between the veteran's post-service tuberculosis, Parkinson's disease, and heart disease including hypertension and service. Under the circumstances of this appeal, competent evidence of an etiological relationship between tuberculosis, Parkinson's disease, and heart disease including hypertension and service must be presented in order for the claims to be well grounded. Such evidence is not of record. Accordingly, the claims are not well grounded. II. A PERMANENT AND TOTAL DISABILITY RATING FOR PENSION PURPOSES A veteran who served during a period of war and meets certain other requirements, and who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, is entitled to receive a pension. 38 U.S.C.A. § 1521. The threshold question to be answered in this claim is whether the veteran has presented a legal claim which might entitle him to the VA benefit he seeks. If his claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law and an inquiry into whether the claim is well grounded is not appropriate. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). The requisite element of 38 U.S.C.A. § 1521, regarding entitlement to non-service-connected pension, is that the veteran must have served during a period of war. The veteran does not assert that he served during a period of war. In his application for compensation or pension, he indicated that he had served on active duty from February 1958 to August 1961. The RO verified the dates of active service as being from February 1959 to August 1961. The veteran has not expressed disagreement with the verified dates. In any event, service from February 1958 to August 1961 only constitutes peacetime service. See 38 C.F.R. § 3.2 (1994). Without having to determine whether the veteran meets the other requirements for entitlement to a non-service-connected pension, the Board finds that because he did not serve during a period of war, at least one of the legal prerequisites for entitlement to a non-service-connected pension has not been met. Therefore, the claim is denied on the basis of lack of entitlement under the law, and no inquiry into whether this claim is well grounded is appropriate. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER The claims of service connection for tuberculosis, Parkinson's disease, and heart disease including hypertension, are dismissed. A permanent and total disability rating for pension purposes is denied. M. SABULSKY 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.