Citation Nr: 0003185 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-20 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for pulmonary tuberculosis (PTB). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had recognized guerrilla service from July 1944 to February 15, 1945, and from February 21, 1945, to June 1945. It was determined that he had never been in prisoner- of-war (POW) status. The initial appeal to the Board of Veterans' Appeals (the Board) was taken from rating action taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, The Philippines. In May 1997, the Board denied entitlement to service connection for coronary artery disease (CAD); denied entitlement to service connection for PTB; and denied the veteran recognition as a POW. The veteran initially filed a notice of appeal (NOA) on all three of these issues to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter known as the Court). In addition, on June 24, 1997, the appellant filed a Motion for Reconsideration of the May 1997 Board decision. Under authority delegated to the Vice Chairman as cited therein, the Motion for Reconsideration was denied on the basis that there was no obvious error in the Board decision. The appellant was so informed in a letter from the Vice Chairman dated August 18, 1997. In correspondence dated November 17, 1997, the appellant again expressed disagreement with Board's August 1997 decision. On March 13, 1998, the Court issued an order staying further proceedings in the appeal pending action on the Motion for Reconsideration before the Board. And in response, in a letter dated March 30, 1998, the then Acting Board Chairman reminded the appellant of the denial of the previous Motion for Reconsideration, and noted that new and material evidence would be required to reopen the claim. Thereafter, the Court lifted the stay, and in June 1999, in a single judge non-precedential case, the Court noted that the only three issues on appeal were entitlement to service connection for CAD and PTB, and for POW status. The Court further noted that other issues had previously been raised, but had not survived at the appellate level, namely Entitlement to service connection for beriberi, malnutrition, psychosis, diabetes, pterygium, post-traumatic stress disorder (PTSD), and hearing loss. The Court noted that "these claims were withdrawn by the appellant in a statement made in the first person but prepared with the assistance of counsel. The appellant now asserts that he was forced to withdraw those claims by a hearing officer. Since the claim of enforced withdrawal has not been presented to and decided by the Board, the Court has no jurisdiction of it. But see Verdon v. Brown, 8 Vet. App. 529 (1996) (claims not considered withdrawn where not clear that the withdrawal was clearly expressed). As to the surviving claims, the Court affirmed the Board's decisions as to CAD and POW status. The Court, as will be discussed in detail below, also vacated the Board decision with regard the PTB claim. FINDING OF FACT The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has determined that the veteran's claim for service connection for PTB is well grounded. CONCLUSION OF LAW The claim of entitlement to service connection for PTB is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim, which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In the above referenced memorandum decision, the Court determined that the appellant in this particular case had provided a well-grounded claim, and that accordingly placed a responsibility on VA for assisting in evidentiary development. "Under the doctrine of 'law of the case,' questions settled on a former appeal of the same case are no longer open for review." Chisem v. Brown, 8 Vet. App. 374, 375 (1995) (quoting Johnson (Anne) v. Brown, 7 Vet. App. 25, 26 (1994) (per curiam order)); see also Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998) (applying law-of-the-case doctrine); Browder v. Brown, 5 Vet. App. 268, 270 (1993); see Marlow v. West, 12 Vet. App. 548 (1999). Under the "law of the case" doctrine, the Court's finding that this claim is well grounded, is binding on the Board. ORDER The claim of entitlement to service connection for PTB is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for PTB is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has held that the Board, as part of its duty to assist the veteran with the development of his claim, must seek records of treatment for PTB within three years of service, as reported by Dr. Ilagen. In view of the foregoing this case is REMANDED for the following: 1. The veteran should be requested to furnish information as to any treatment he has received for PTB since service. The RO should then take all necessary steps to obtain those records not already part of the claims folder and associate them with that folder. The RO's efforts should include taking all necessary actions to secure all records of treatment from Dr. Ilagen. 2. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. If necessary the RO should consult with specialists in pulmonary disabilities to determine the definitive conclusions, if any, to be drawn from the obtained clinical records and other evidence. In particular, the RO should review the requested clinical records to determine that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of service connection for PTB on all applicable bases. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals