BVA9506166 DOCKET NO. 92-56 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a right foot disorder. Entitlement to service connection for a left foot disorder. Entitlement to service connection for residuals of a neck injury. Entitlement to service connection for bilateral carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harner, Associate Counsel INTRODUCTION The appellant had active service for purposes of Department of Veterans Affairs benefits between December 23, 1944, and January 22, 1945 and between March 13, 1945, and August 15, 1945, as certified by Forms DD214 and DD215, issued in July 1989. This appeal was remanded by the Board of Veterans' Appeals in November 1992. Various items of correspondence were received from the veteran after his appeal was returned to the Board of Veterans' Appeals following development on remand by the regional office. Much of this material is duplicative or constitutes argument. One letter is an inquiry from a Member of Congress. None of this material constitutes "pertinent evidence" within the meaning of 38 C.F.R. § 20.1304 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends while on active duty, he suffered from a severe infection which later resulted in a right foot disability, neck problems, and bilateral carpal tunnel syndrome. He further contends that he stepped on a catfish bone which remained lodged in his foot for a period of time until it was removed through surgery, resulting in permanent disability. 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 appellant'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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for a left foot disorder, a right foot disorder, residuals of a neck injury, and bilateral carpal tunnel syndrome are well grounded. FINDING OF FACT The appellant has not presented evidence which would establish that any left foot disorder, right foot disorder, residuals of a neck injury, or bilateral carpal tunnel syndrome is related to incidents occurring during his periods of certified active service. CONCLUSION OF LAW The claims of entitlement to service connection for a left foot disorder, a right foot disorder, residuals of a neck injury, or bilateral carpal tunnel syndrome are not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.7(x)(15)(1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The preliminary question to be resolved is the identification of the appellant's periods of active service for purposes of Department of Veteran's Affairs benefits. Governing regulation provides that members of the American Merchant Marines who served on oceangoing service between December 7, 1941 and August 15, 1945 will be eligible for veteran's benefits. 38 C.F.R. § 3.7(x)(15) (1994). Documentary evidence submitted by the appellant indicates that he was with the Merchant Marines almost continuously between October 1944 and April 1947. The Department of Defense, however, has certified that of that service, only the periods between December 23, 1944, and January 22, 1945, and between March 13, 1945, and August 15, 1945, include oceangoing service for purposes of veteran's benefits. (see Forms DD214 and DD215, issued in July 1989). Thus in evaluating entitlement to service connection, the Board may only consider events which occurred during these two time periods. The appellant has submitted for our review numerous written contentions, recent medical records, documentation of his unsuccessful efforts to obtain older medical records, and has presented oral testimony at a personal hearing. In summary his contentions revolve around several incidents. He testified that in October or November of 1944, he was in boot camp at Sheepshead Bay in Brooklyn, New York when a dysentery epidemic broke out. He stated that he was treated for the infection at that time but he now believes the disease was the precursor of his right foot, neck, and wrist disabilities. At the hearing and in written contentions, the appellant related that while he was serving on a ship called the Tonka City, he stepped on a catfish and one of the fish bones penetrated deep into his left foot. He testified that the bone remained in his foot until it was removed in the 1950's. He claims he still has residual pain from this incident. Lastly, the appellant asserts he was involved in an explosion on a ship in Genoa, Italy in March 1947. He was thrown from the ship, injured his neck, and received extensive burns on his body. By operation of law, as discussed above, service connection may only be granted for injuries or disabilities which are related to service between December 23, 1944 to January 22, 1945 and March 13, 1945 to August 15, 1945. Since the dysentery incident as related by the appellant did not occur within either of these certified periods, any residual disability may not receive a grant of service connection. We note, however, that even if service connection were not precluded by operation of law, the appellant would still have to present a well-grounded claim by showing that he was infected by the epidemic, and in terms of providing a medically-viable basis for his claim that dysentery either directly or indirectly caused his current disabilities. As a lay person, the appellant is not competent to present a medical opinion regarding the causation of his current disabilities, a complex question involving medical judgment. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The appellant's treating physicians have not opined that any current disabilities could be related to incidents in service and the appellant has presented no clinical, medical evidence other than his own contentions to relate any current disabilities to service. Any disability arising from the incident involving the explosion on the ship in Genoa, Italy is likewise precluded from receiving a grant of service connection by operation of law as that incident occurred in March 1947, outside the period of time during which the appellant had certified active service. Thus, the appellant's claims for entitlement to service connection for a right foot disorder, residuals of a neck injury, and bilateral carpal tunnel syndrome, to the extent they stem from that event, must be denied because of a basic lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). To the extent they are said to have occurred during qualifying service, the claims, even on the assumption that the appellant now has the conditions, are simply not plausible because of the lack of any competent nexus to service. The threshold question to be addressed regarding the appellant's remaining claim for entitlement to service connection for a left foot disability, is whether the claim is well-grounded. If it is not, his claim must fail and there is no further duty to assist him because additional development would be futile. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. Service connection may be established by demonstrating that a disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. A well-grounded claim for entitlement to service connection, therefore, is one which justifies a belief by a fair and impartial individual that it is plausible that the appellant's current disability had its inception during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). The appellant testified that he was serving on a ship called the "Tonka City" when he stepped on a catfish and one of the fish bones penetrated into his left foot. Our review of the appellant's duty assignments indicates that between March 13, 1945 and April 9, 1945, he served on a ship called the "Ponca City". Assuming the appellant's testimony refers to an incident which happened during the period of time when he served aboard the "Ponca City", his tour of duty falls within the time frame certified by the Department of Defense and an injury arising from this incident could receive service connection. He further indicated that the bone remained in his foot until the early 1950's when he underwent an operation at Miner's Hospital in Frostburg, Maryland. He asserts he has experienced pain in his left foot since the operation. Based upon this testimony, the case was remanded by the Board in November 1992 for the RO to obtain records of this operation. From further information provided by the appellant, it was ascertained that the Miner's Hospital had become the Frostburg Hospital, Inc., and records were requested. The hospital responded to the effect that a search had been made for records but none had been found. In the absence of any competent evidence supporting the appellant's contentions regarding his left foot, the claim cannot be deemed well grounded. ORDER The claims for entitlement to service connection for a right foot disorder, a left foot disorder, residuals of a neck injury, and bilateral carpal tunnel syndrome are dismissed. JOHN E. ORMOND 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.