**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 98-1275

[William L. Hodges, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided January 12, 2000 )

*Michael E. Wildhaber* was on the briefs for the appellant.

*Leigh A. Bradley,* General Counsel; *Ron Garvin*, Assistant General
Counsel; *Mary Ann Flynn*, Acting Deputy Assistant General Counsel; and
*Gregory W. Fortsch* were on the brief for the appellee.

Before HOLDAWAY, IVERS, and STEINBERG, *Judges*.

STEINBERG, *Judge*: The appellant, veteran William L. Hodges, appeals
through counsel a March 19, 1998, Board of Veterans\' Appeals (BVA or
Board) decision that denied as not well grounded claims for Department
of Veterans Affairs (VA) service connection for a right-knee disorder, a
left-knee disorder, and a stomach disorder. Record (R.) at 3. The
appellant has filed a brief and a reply brief, and the Secretary has
filed a brief. This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that
follow, the Court will affirm the BVA decision in part and reverse it in
part and remand a matter.

**I. Background**

The veteran served on active duty in the U.S. Marine Corps from January
1968 to January 1972 and in the U.S. Air Force from November 1980 to
June 1992. R. at 396, 398. From April 1977 to November 1980, he served
in the U.S. Air Force Reserves. *See* R. at 55-118 (reserve service
medical records (RSMRs) of, inter alia, annual physicals for reserve
service).

A July 1970 service medical record (SMR), contained the following
description, written by the veteran, of his \"present health\": \"O.K.
Except l\[e\]f\[t\] knee continually hurt.\" R. at 31. The veteran
elaborated: \"Hurt knee in boot camp 2 ½ years. Doctor has not been able
to find cause. Slips when excessive running, or when sitting such as in
backseat of car for more than 20 to 30 minutes.\" R. at 32. Physical
examination of the left knee revealed tenderness and swelling of the
distal patella. *Ibid.* A few days later, the veteran was again examined
based on a complaint of left-knee pain, and the physician noted a
\"strong knee capsule \[with\] full ROM \[(range of motion),\]
tenderness and swelling distal patella.\" R. at 30. Subsequent x-rays
were negative, and a follow-up examination SMR noted that the veteran
had a \"\[s\]table knee\". *Ibid.* At his January 1972 separation
examination, he reported that he had hurt his knee in boot camp. R. at
53.

The records of his April 1977 medical examination for enlistment in the
Air Force Reserves, as well as RSMRs dated in January and September
1978, October 1979, and October 1980, indicated that the veteran had
reported that he had never had a \"\'trick\' or locked knee\" and
reported no knee complaints. R. at 57, 65-72, 75-81, 92-96. In January
1984, SMRs reflected that he was treated for symptoms of abdominal pain
that he described as being due to a \"nervous stomach\" (R. at 154); on
the day after he was examined, the veteran reported that his abdominal
pain had resolved (R. at 153). He was ultimately diagnosed as having a
\"viral syndrome.\" R. at 159. A July 1988 SMR indicated that he had
strained the medial collateral ligament of his left knee while playing
softball. R. at 231-33. The examiner noted tenderness of the knee but
found no swelling, effusion, or crepitation, and placed the veteran in a
limited activity profile for one week. R. at 231-33.

At a September 1990 Air Force medical examination, the veteran gave a
history of having experienced \"stomach problems . . . on and off\"
since exposure to Agent Orange in Vietnam; his symptoms were described
as an ache in the epigastric area with occasional cramping of the
stomach. R. at 371. The examiner\'s assessment was \"irritable bowel
syndrome, \[d\]oubt inflammatory bowel disease \[(IBS)\]; \[d\]oubt PUD
\[(peptic ulcer disease)\], \[d\]oubt esophagitis.\" *Id.* In November
1990, the veteran was seen for complaints of diarrhea and vomiting, and
was diagnosed as having gastroenteritis. R. at 309. The next report of
any pertinent condition was a May 1992 SMR, which reported that the
veteran had complained of a sharp mid-epigastric pain that radiated
through to his back. R. at 393. He reported having had multiple prior
episodes of such pain, and having been previously prescribed Librax for
a \"nervous stomach.\" *Id.* The examiner assessed: \"? IBS/ R/O (rule
out) pancreatitis, PUD\". *Id.*

Following his June 1992 retirement from active duty, the veteran in
August 1994 filed with a VA regional office (RO) an application for VA
service connection for, inter alia, a \"stomach condition\" that had
begun in 1980 and a \"\[b\]ilateral knee condition\" that had had its
onset in 1984. R. at 400-04. A February 1995 private medical record
contained a diagnosis of \"poss\[ible\] reflux esophagitis\". R. at 457.
At a VA examination in April 1995, he reported that he had first had
epigastric pains in about 1970 after he returned from Vietnam, and that
he was experiencing recent reflux for which he was taking Zantac. R. at
437. As to his knees, the veteran reported a history of having injured
both his knees during in-service sports activities and boot camp. R. at
438. Bilateral knee x-rays revealed some calcification of the proximal
tibial fibula joint which \"could indicate capsular or ligamentous
calcification, developmental, or post traumatic\", but the VA physician
who read the x-rays indicated an impression of \"\[n\]o significant
abnormality.\" R. at 440. The VA examiner diagnosed the veteran as
having, inter alia, a \"\[p\]robable hiatal hernia with esophogastric
reflux\" and \"\[c\]hondromalacia \[of\] both knees\". R. at 438. A
subsequent April 1995 VA examination of the veteran\'s knee joints
yielded a diagnosis of bilateral patella tendinitis. R. at 442.

In June 1995, the RO, inter alia, denied the veteran\'s claims for
service connection for left‑ and right-knee conditions and for a stomach
disorder. R. at 446. The veteran timely appealed to the Board. R. at
470, 496. In April 1996, a private physician diagnosed the veteran as
having bilateral post-traumatic arthritis of the knees. R. at 539. In
the March 19, 1998, BVA decision here on appeal, the Board denied as not
well grounded the veteran\'s claims for left- and right-knee and stomach
disorders. R. at 3.

**II. Analysis**

\"\[A\] person who submits a claim for benefits under a law administered
by the Secretary shall have the burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that the claim is
well grounded.\" 38 U.S.C. § 5107(a). A well-grounded claim is \"a
plausible claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only possible to
satisfy the initial burden of \[section 5107(a)\].\" *Murphy
v. Derwinski*, 1 Vet.App. 78, 81 (1990). For a service-connection claim
(here under 38 U.S.C. § 1110 and 1131) to be well grounded, there
generally must be: (1) Medical evidence of a current disability; (2)
medical evidence, or in certain circumstances lay evidence, of
in-service incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the asserted in-service injury or
disease and the current disability. *See* *Caluza v. Brown*, 7 Vet.App.
498, 506 (1995), *aff\'d per curiam*, 78 F.3d 604 (Fed. Cir. 1996)
(table); *see also Elkins v. West*, 12 Vet.App. 209, 213 (1999) (en
banc) (citing *Caluza*, *supra*, and *Epps v. Gober*, 126 F.3d 1464,
1468 (Fed. Cir. 1997) (expressly adopting definition of well‑grounded
claim set forth in *Caluza*, *supra*), *cert. denied sub nom. Epps v.
West,* 118 S. Ct. 2348 (1998) (mem.)). Alternatively, either or both of
the second and third *Caluza* elements can be satisfied, under 38 C.F.R.
§ 3.303(b) (1998), by the submission of (a) evidence that a condition
was \"noted\" during service or during an applicable presumption period;
(b) evidence showing postservice continuity of symptomatology; and (c)
medical or, in certain circumstances, lay evidence of a nexus between
the present disability and the postservice symptomatology. *Savage
v. Gober*, 10 Vet.App. 488, 495-97 (1997); *see McManaway v. West*,
13 Vet.App. 60, 65 (1999). The credibility of the evidence presented in
support of a claim is generally presumed when determining whether it is
well grounded. *See Elkins*, 12 Vet.App. at 219 (citing *Robinette v.
Brown*, 8 Vet.App. 69, 75-76 (1995)). The determination whether a claim
is well grounded is subject to de novo review by this Court. *See
Robinette*, 8 Vet.App. at 74.

***A. Right-Knee Claim***

In his opening brief, the appellant set forth arguments only as to the
matter of service connection for his left-knee and stomach disorders.
The Secretary asserts in his brief that the appellant has therefore
abandoned his right-knee claim (Secretary\'s Brief (Br.) at 7-8), and
the appellant\'s reply brief does not respond to the Secretary\'s
assertion. Hence, the Court holds that he has abandoned that issue on
appeal and will thus not review the Board\'s denial of service
connection for a right-knee disorder. *See Buckley v. West*, 12 Vet.App.
76, 81 (1998) (citing, inter alia, *Degmetich v. Brown,* 8 Vet.App. 208,
209 (1995), *aff\'d*, 104 F.3d 1328 (Fed. Cir. 1997)).

***B. Left-Knee Claim***

The Secretary concedes in his brief that \"all of the elements for a
well-grounded claim have been met\" as to the veteran\'s left-knee
claim, and argues that \"reversal and remand are therefore required.\"
Br. at 10. For the following reasons, the Court agrees. As to evidence
of a current disability, the record on appeal (ROA) contains recent
diagnoses by both private and VA physicians of several knee conditions,
including \"\[c\]hondromalacia \[of\] both knees\" in April 1995 (R. at
438), bilateral patella tendinitis, also in April 1995 (R. at 442), and
bilateral post-traumatic arthritis of the knees in April 1996 (R. at
539). Regarding evidence of in-service incurrence, SMRs showed treatment
for a left-knee injury in June 1970, during his first period of service.
R. at 31-32. As to a medical opinion on nexus, the April 1996 diagnosis
of bilateral post-traumatic arthritis of the knees was made following
the physician\'s notation of only in-service traumatic events, i.e., the
veteran\'s report of his 1968 and 1984 in-service left-knee injuries. R.
at 539. In addition, the April 1995 VA x-ray examination indicated an
impression of a post-traumatic knee condition. R. at 440. Because the
two events of left-knee trauma contained in the ROA that occurred in
service are the only episodes of left-knee trauma contained in the ROA
(R. at 31, 53, 231-33), and because the physician who diagnosed the
veteran as having post-traumatic arthritis of the knee mentioned those
two in-service traumas and was apparently aware of no other event(s) of
left-knee trauma, the Court holds that the veteran has submitted the
medical evidence of a nexus between the veteran\'s service and his
current left-knee disability that is needed to well ground this claim.
Hence, the Court holds, on de novo review, that the veteran\'s left-knee
claim was well grounded, and agrees with the Secretary\'s concession
(Br. at 10) that we should reverse the Board decision in this respect
and remand for adjudication on the merits of the issue of service
connection for the veteran\'s left-knee condition. *See Epps*, *Elkins,
Robinette*, and *Caluza*, all *supra.*

***C. Stomach-Disorder Claim***

That the appellant meets the current-diagnosis requirement of *Caluza*
as to a stomach condition is not in dispute between the parties.
Secretary\'s Br. at 8 (conceding that \"there is evidence of a current
disability\"); Appellant\'s Br. at 19-20 (noting medical evidence of
current stomach disorder). The Court agrees, in view of the February
1995 private physician\'s diagnosis of the veteran as having
\"poss\[ible\] reflux esophagitis\" (R. at 457) and the April 1995 VA
diagnosis of a \"\[p\]robable hiatal hernia with esophogastric reflux\"
(R. at 438). As to the second and third *Caluza* elements, the appellant
does not argue that he has submitted evidence of a medical opinion as to
a nexus between the veteran\'s current stomach condition and his
service; instead, he submits that his claim is well grounded under the
38 C.F.R. § 3.303(b) continuity-of-symptomatology alternative criteria
and *Savage, supra.* As noted above, § 3.303(b) allows an appellant to
meet the second and third *Caluza* requirements by the submission of (a)
evidence that a condition was \"noted\" during service; (b) evidence
showing postservice continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the present
disability and the postservice symptomatology. *See* *McManaway* and
*Savage*, both *supra*.

As to whether there was a condition noted in service, the veteran\'s
SMRs contain the following: A notation in September 1990 of \"stomach
problems\" including aching in the epigastric area with occasional
cramping as to which the examiner noted: \"Doubt esophagitis\" (R. at
371); a November 1990 diagnosis of gastroenteritis (R. at 309); and a
notation of May 1992 treatment for sharp mid-epigastric pain that
radiated through to the back (R. at 393). This is certainly sufficient
evidence of the noting in service of an in-service stomach condition.
There is also abundant evidence of postservice continuity of
stomach‑disorder symptomatology based on the veteran\'s own accounts
contained in his original claim for service connection (R. at 404
(indicating that he has had a \"\[s\]tomach condition\" from \"1980 to
present\")) and in his Substantive Appeal to the Board (R. at 497
(asserting that he has had stomach pain at least since his 1992
discharge from service)). *See Savage*, 10 Vet.App. at 497 (holding that
veteran\'s retrospective assertion of continuous symptoms is competent
evidence sufficient for this purpose). Moreover, there is medical
corroboration of continuous stomach problems. *See* R. at 457 (private
medical record of treatment for stomach problems in February 1995); R.
at 437 (April 1995 record of VA treatment for stomach problems); *cf.*
R. at 371 (September 1990 SMR reporting veteran\'s complaint of having
had stomach problems since his service in Vietnam); R. at 393 (May 1992
SMR indicating that veteran stated that he had had past episodes of
mid-epigastric pain). Hence, the Court concludes that there is
sufficient evidence of both an in-service noting of a stomach condition
and of postservice continuity of symptomatology of stomach distress,
and, therefore, that those two elements of a well-grounded claim based
on 38 C.F.R. § 3.303(b) are present. *See McManaway* and *Savage*, both
*supra.*

The Secretary implies that the above-described evidence of in-service
noting of the current disability is insufficient because the veteran is
not currently diagnosed with any of the conditions that were noted in
service. Br. at 8 (\"\[s\]ignificantly, \[the veteran\] was never
diagnosed with probable reflux esophagitis or probable hiatal hernia
during service\").

However, continuity of symptomatology, as described in *Savage, supra*,
***does not require that a claimant be diagnosed with the same
condition*** both in service and at the time of his claim for service
connection (such a requirement is part of the 38 C.F.R. § 3.303(b)
criteria as to a chronicity basis for service connection); the Court in
*Savage* was clearly more concerned with the described symptomatology
than it was with a precise, in-service diagnosis. In that case, the
Court had been presented only with postservice testimony regarding an
in-service injury that had caused the veteran to \"limp ever since\",
and held that the veteran\'s sworn testimony alone was sufficient to
establish an in-service noting; no specific in-service medical notation,
let alone a diagnosis, was required. *Savage*, 10 Vet.App. at 497. If a
well-grounded claim based on a continuity‑of‑symptomatology analysis
required identical in-service and current diagnoses, then the Court\'s
approval in *Savage* of the use of testimonial evidence to meet the
noting requirement of 38 C.F.R. § 3.303(b) would have been irrelevant
because that type of retrospective lay evidence would not be sufficient,
in any circumstance, to show a medical diagnosis, *see* *Robinette*,
8 Vet.App. at 77 (lay account of medical diagnosis is not competent
medical evidence) and thus could not form part of the basis for a
well-grounded claim under § 3.303(b). Hence, the Court holds that
identical in-service and current diagnoses are not required for the
purpose of a § 3.303(b)-based well-grounded claim for service
connection. Moreover, the Court notes that the veteran was diagnosed in
February 1995 as possibly having reflux esophagitis (R. at 457), and
received an April 1995 diagnosis of \"\[p\]robable hiatal hernia with
esophogastric reflux\" (R. at 438), and that a September 1990 SMR could
not rule out a diagnosis of that very same condition (R. at 371).
(Esophagitis is \"inflammation of the esophagus\"; reflux esophagitis is
a specific type of esophagitis. [Dorland\'s Illustrated Medical
Dictionary]{.smallcaps} 580 (28th ed. 1994).) Thus, even if identical
in-service and current diagnoses were required in a case such as this,
it appears that the veteran\'s current disability of possible
esophagitis may be the same as a condition that was noted in service.

Although the evidence is sufficient to satisfy the first two elements of
a well-grounded claim under § 3.303(b), the veteran has not submitted
sufficient evidence to satisfy the final requirement of a well-grounded
claim under § 3.303(b), evidence of nexus. The ROA does not contain any
medical opinion indicating that the veteran\'s current stomach disorder
is related to the one that he had in service. Although his in-service
***symptoms*** (described as an ache in the epigastric area with
occasional cramping (R. at 371) and as sharp mid-epigastric pain (R. at
393)) appear to be very similar to the symptoms that he reported at the
February 1995 private examination (described as \"midsternal and
epigastric pain\" (R. at 455-57)), there is a complete absence of
medical evidence showing a common underlying cause of those symptoms.

Nor is this a case where lay testimony is competent to provide the
required evidence of a nexus. Although the veteran, even as a layperson,
is competent to describe that he has experienced stomach pain located in
the mid-epigastric area, he is not competent to provide a medical
conclusion as to the cause of such pain. In this respect, for the
reasons set forth in the Court\'s recent opinion in *Clyburn v. West*,
12 Vet.App. 296 (1999), this case, as was *Clyburn*, is distinguishable
from *Falzone v. Brown*, 8 Vet.App. 398, 406 (1996), where the Court
held that lay evidence of continued foot pain coupled with in‑service
and current diagnoses of pes planus were sufficient to render a claim
well grounded under the continuity-of-symptomatology provisions of §
3.303(b). In *Clyburn*, the Court noted the following regarding the
Court\'s analysis in *Falzone*:

> In finding that the veteran\'s statements provided \"a direct link
> between \[his\] active service and the current state of his claim,\"
> the Court noted \[in *Falzone*\] that \"pes planus is the type of
> condition that lends itself to observation by a lay witness,\" and
> that when the issue is one of continuity of symptomatology, lay
> testimony may suffice to reopen a claim. \[*Falzone*, 8 Vet.App. at
> 403\]. In rejecting the Secretary\'s argument that Mr. Falzone\'s
> claim should fail because he had not submitted medical statements
> linking his current condition with his in-service condition, the
> *Falzone* Court stated that the nature of the evidence required
> depends upon the type of condition involved, and \"where the
> determinative issue does not require medical expertise, lay testimony
> may suffice by itself.\" *Id.* at 405 (quoting *Heuer v. Brown*,
> 7 Vet.App. 379, 384 (1995)). The *Falzone* Court held that since the
> determinative issue was not \"medical in nature\" (*id.* at 406), the
> veteran\'s statements were competent as to the issues of pain since
> service and the observable flatness of his feet. *Id.*

*Clyburn*, 12 Vet.App. at 301. As was the condition at issue in
*Clyburn* (bilateral knee disability), the cause of the veteran\'s
current stomach disorder \"does not present an issue that may be
satisfied by lay testimony.\" *Ibid.* Unlike the issue in *Falzone*,
which was the ***existence*** of the condition, there flat feet, as to
which visual observation by a lay person was sufficient, here the issue
is the ***cause*** of an aching stomach, a matter that is not visually
observable in this case. Moreover, given the many possible causes of the
veteran\'s stomach problems, neither he nor any other lay person can
credibly testify as to the origin of his current condition. In fact, his
stomach condition is so complex that none of the doctors who treated him
has been able to provide a conclusive diagnosis. *See, e.g.,* R. at 371
(September 1990 RSMR with assessment of veteran as having \"irritable
bowel syndrome, \[d\]oubt inflammatory bowel disease \[(IBS)\];
\[d\]oubt PUD \[(peptic ulcer disease)\], \[d\]oubt esophagitis\"); R.
at 393 (May 1992 SMR assessing: \"? IBS/ R/O (rule out) pancreatitis,
PUD\"); R. at 438 (April 1995 VA examination report diagnosing
\"\[p\]robable hiatal hernia with esophogastric reflux\"); R. at 457
(February 1995 private medical record with diagnosis of \"poss\[ible\]
reflux esophagitis\"). Hence, the Court holds, on de novo review, that
because the cause of the veteran\'s stomach pain is not a matter that is
observable by a lay person, medical evidence of a nexus between his
current stomach condition and his continued symptomatology was required
to well ground that claim and that, because no such evidence was
submitted, the claim is not well grounded. *See* 38 C.F.R. § 3.303(b);
*Clyburn* and *Savage,* both *supra*.

**III. Conclusion**

Upon consideration of the foregoing analysis, the ROA, and the parties\'
pleadings, the Court holds, as to the stomach-disorder claim, that the
appellant has not demonstrated that the BVA committed error ‑- in its
findings of fact, conclusions of law, compliance with procedural
requirements, or articulation of reasons or bases \-- that would warrant
reversal or remand under 38 U.S.C. §§ 1110, 1131, 5107(a), 7104(a) or
(d)(1), or 7261, or 38 C.F.R. §§ 3.303(b). Therefore, the Court affirms
the March 19, 1998, BVA decision as to its denial of the claim for
service connection for a stomach disorder.

Also upon further such consideration, the Court reverses the March 19,
1998, BVA decision as to its decision that the claim for service
connection for a left-knee condition is not well grounded and remands
that matter for expeditious further development and issuance of a
readjudicated decision supported by an adequate statement of reasons or
bases, *see* 38 U.S.C. §§ 1110, 1131, 5107, 7104(a), (d)(1); *Fletcher
v. Derwinski*, 1 Vet.App. 394, 397 (1991) \-- all consistent with this
opinion and in accordance with section 302 of the Veterans\' Benefits
Improvements Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide
for \"expeditious treatment\" for claims remanded by BVA or the Court).
*See Allday v. Brown*, 7 Vet.App. 517, 533‑34 (1995). On remand, the
appellant will be free to submit additional evidence and argument on the
remanded claim in accordance with *Kutscherousky v. West*, 12 Vet.App.
369, 372-73 (1999) (per curiam order). The Court notes that a remand by
this Court and by the Board confers on an appellant the right to VA
compliance with the terms of the remand order and imposes on the
Secretary a concomitant duty to ensure compliance with those terms. *See
Stegall v. West*, 11 Vet.App. 268, 271 (1998). A final decision by the
Board following the remand herein ordered will constitute a new decision
that, if adverse, may be appealed to this Court only upon the filing of
a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of the new Board final decision is mailed to the
appellant. *See Marsh v. West*, 11 Vet.App. 468, 472 (1998).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.