[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 99-7029 (Fed. Cir.) [ACTIVITY]{.underline}:
RATING

[NAME]{.underline}: Hensley v. West

[ISSUE(S)]{.underline}: Well grounded claims: the standard for
determining whether evidence is sufficient as nexus evidence; usage of
treatises as nexus evidence.

[ACTION BY COURT]{.underline}: Vacate/Remand [DECISION
DATE]{.underline}: May 12, 2000

[FACTS]{.underline}: In 1944, while the veteran was in the service, he
participated in ten rounds of testing of mustard gas and Lewisite. After
the tests, he was hospitalized and given a disability discharge from the
Army. He was diagnosed with service connected bronchial asthma and
severe anxiety and psychoneurosis. In 1974, the veteran was diagnosed
with heart disease. In 1992, he filed a claim for service connection for
heart disease based on his in-service exposure to mustard gas. As
evidence of a nexus between the heart disease and his exposure, the
veteran submitted three medical reports from doctors, and a VA report
entitled *Veterans at Risk: The Health Effects of Mustard Gas and
Lewisite*. The report stated, among other things, that a connection
between heart disorders and toxic gas exposure could not be ruled out,
and suggested that oxygen deprivation as a consequence of
exposure-induced lung disorders might result in degeneration of heart
muscle and thus eventually lead to abnormal heart action.

The Board of Veteran's Appeals (BVA) concluded that any disease (such as
heart disease) not listed in 38 C.F.R. § 3.316(a) was presumptively not
linked to exposure and denied the claim as not well grounded. The Court
of Veteran's Appeals for Veterans Claims (CAVC) recognized that the
BVA's application of the regulation was wrong. The CAVC noted that the
regulation establishes a presumption that the listed diseases are caused
by mustard gas, but it did not foreclose the alternative route of
directly demonstrating service connection for other unlisted diseases.
The CAVC then reviewed "de novo" whether the claim was well grounded,
and affirmed the BVA decision, finding that the claim was not well
grounded as a matter of law.

[ANALYSIS]{.underline}: The United States Court of Appeals for the
Federal Circuit (Federal Circuit) noted that the reason the BVA found
the veteran's claim not to be well grounded was because heart disease
was not listed in 38 C.F.R. § 3.316(a) as one of the diseases
presumptively linked to exposure to mustard gas or Lewisite. According
to the Federal Circuit, since the reason given by the BVA for its
decision led it to an erroneous conclusion and consequently to an
insufficient factual development of the record, its decision could not
be affirmed. The Federal Circuit stated that, once the CAVC recognized
the BVA's error, the proper course of action would have been for the
CAVC to remand the case to the BVA for further development and
application of the correct law. Instead, the CAVC incorrectly performed
a de novo review and found the claim was not well grounded.

Additionally, the Federal Circuit found that the CAVC applied an
incorrect standard to its analysis of whether the veteran presented a
well grounded claim. The proper standard is that the claim must be
"plausible," "possible," or "capable of substantiation." However, in
discussing the *Veterans at Risk* report, the CAVC said that the report
did not establish a "conclusive connection" or a "concrete causal
connection." Similarly, the CAVC criticized one of the doctors' reports
because it did not "explicitly state that \[the veteran's\] exposure to
mustard gas is related to his present condition." These statements
indicate that the CAVC erroneously applied a standard considerably more
stringent than the correct "plausible," "possible," or "capable of
substantiation" standard."

Regarding treatise evidence, the Federal Circuit stated that a veteran
with a competent medical diagnosis of a current disorder may use an
accepted medial treatise in order to establish the required nexus. The
Court elaborated that in an appropriate case it should not be necessary
to obtain the services of medical personnel to show how the treatise
applies to a particular case. Thus, on remand, the *Veterans at Risk*
report should be evaluated to see if it supports a nexus between the
veteran's exposure to mustard gas and his heart disease, sufficient to
meet the low threshold of the well grounded claim requirement.

[IMPACT ON DECISIONMAKERS]{.underline}: Significant. This case explains
the kind of evidence that may be used to establish the nexus prong of a
well grounded claim. The Court makes clear that to establish a medical
nexus, a medical report need not establish a "conclusive connection" or
a "concrete causal connection." The medical report must only establish
that the nexus evidence be "plausible," "possible" or "capable of
substantiation". The Court pointed out that in appropriate cases, a
medical treatise may be used to establish a nexus between a *diagnosed*
current condition and service. The Court explained that, in certain
cases, it may not be necessary to obtain the opinion of a medical
professional to show how a treatise applies to a particular case.

[RECOMMENDED VBA ACTION(S)]{.underline}: Add this case to the Summary of
Significant Holdings. Also, this case may be used in training relating
to well grounded claims -- in particular as to what constitutes the
nexus requirement.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

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[7-11-00]{.underline}

Yes No Robert J. Epley Date