**UNITED STATES COURT OF VETERANS APPEALS**

[No]{.smallcaps}. 94-503

[Frank B. Savage, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Hershel W. Gober,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Argued May 19, 1997 Decided November 5, 1997 )

*Micha Barach* for the appellant.

*Rudrendu Sinhamahapatra,* with whom *Mary Lou Keener*, General Counsel;
*Ron Garvin*, Assistant General Counsel; and *R.. Randall Campbell*,
Deputy Assistant General Counsel, were on the brief, for the appellee.

*Sean Kendall* for the National Organization of Veterans Advocates as
amicus curiae.

*Robin Duncan Culbertson*, of the National Veterans Legal Services
Program, for the American Legion as amicus curiae.

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

KRAMER, *Judge*: The appellant, Frank B. Savage, appeals a March 16,
1994, decision of the Board of Veterans\' Appeals (BVA or Board) that
denied a claim of service connection for a right hip disability after
determining that new and material evidence had been submitted to reopen
the claim (claim l); denied service connection for arthritis of multiple
joints, other than the right hip (claim 2); and found not well grounded
a claim of secondary service connection due to service-connected malaria
for arthritis of multiple joints other than the right hip (claim 3). For
the reasons that follow, the Court will affirm the Board decision.

**I. BACKGROUND**

The appellant had active military service in the U.S. Army from April
1940 to July 1945. Record (R.) at 32, 35, 133, 140. His service medical
records (SMRs) show, inter alia, several bouts of malaria (R. at 36, 38,
41, 53, 59, 61, 63-64, 66-67, 69). In July 1941, his SMRs noted a strain
of the lumbar region as a result of a fall while descending a
companionway. R. at 58. Hospital records from April 1942 reported that
the appellant complained of back pain and was given heat treatments to
the lumbar region. R. at 77, 79. Examinations in April 1942 and June
1943 reported no abnormalities of the bones, joints, or muscular system.
R. at 75, 101. In February 1944, the appellant was admitted to the
orthopedic clinic with complaints of back pain of two years\' duration.
R. at 120-21. A history of injury to the back two years earlier and
re-injury two weeks earlier was noted. *Id.* An x-ray of the lumbar
spine was negative. *Id*. The appellant's July 1945 separation
examination reported musculoskeletal defects as \"none.\" R. at 131.

In February 1947, the appellant filed with a VA regional office (RO) a
claim of service connection for, inter alia, malaria. R. at 136. The RO
granted service connection at 0% disabling for malaria. R. at 146.

A December 1978 x-ray report noted that bones in the right wrist were
mildly osteoporotic. R. at 163. A March 1981 x-ray report noted a
five-year history of a septic right ankle and an impression of severe
degenerative disease in the right ankle. R. at 167. An April 1981 x-ray
report revealed findings consistent with gouty arthritis of the right
elbow. R. at 170. A May 1981 VA hospital report noted that the appellant
had developed bursitis following trauma to the right elbow approximately
five years earlier. R. at 172, 176. In August 1981, the RO denied an
increased rating for the appellant\'s service-connected malaria and
denied service connection for a hip injury, although the record does not
reflect that the appellant ever filed a claim with respect to the
latter. R. at 181. An October 1981 x-ray report noted a history of right
hip pain for several months, which was noted to be possibly post status
to an injury in 1947. R. at 185. The x-ray report noted mild
degenerative spurring in the lumbar spine; however, x-rays of the hip
and pelvis were normal. *Id*. In an August 1984 VA examination, the
examiner reported, inter alia, limited external rotation of the left
hip. R. at 252. A February 1985 x-ray report noted symmetrical mild
degenerative arthritis in both hips. R. at 257. In August 1985 VA
progress notes, the examiner noted that right hip pain had begun
approximately two or three weeks earlier. R. at 263. Later that same
month, an x-ray report of the right hip noted that \"\[t\]he lateral
margin of the ilium is indented suspicious of possibly some old
trauma.\" R. at 262. The x-ray report of the lumbosacral spine noted,
inter alia, \"an old compression fracture of the vertebral body of L-2\"
and \"areas of degenerative spondylosis with some rather prominent bony
spurring.\" *Id*. Later that same month, VA progress notes reported that
the appellant had a long history of low back and right hip pain since an
injury in the service. R. at 265. In December 1985, VA progress notes
revealed a long history of right hip, knee, and foot pain and indicated
that there was history of trauma. R. at 269. The notes described the hip
and knee pain as rare and mild. *Id*.

In February 1990, the appellant filed a claim of service connection for
arthritis of multiple joints as secondary to his service-connected
malaria, and requested that his claim of service connection for a right
hip disability be reopened. R. at 284. In March 1990, the RO denied
service connection for arthritis of multiple joints, secondary to the
service-connected malaria, and determined that new and material evidence
had not been submitted to reopen the claim of service connection for a
right hip disorder. R. at 288-89. The appellant filed a timely Notice of
Disagreement (R. at 293) and a VA Form 1-9, Appeal to the Board of
Veterans\' Appeals (Form 1-9) (R. at 303-04).

In a January 1991 hearing at the RO, the appellant testified that during
service he had fallen down stairs on a ship, landed on his hip and back,
and was hospitalized for approximately 10 days. R. at 307-08. He
reported that he was limping at the time of his discharge (R. at 309)
and had received heat treatments and massages over the years, although
not through the VA system (R. at 311). He further contended that his
multiple-joint problems had developed as a result of his
service-connected malaria. R. at 314-15. In February 1991, a VA hearing
officer confirmed the denial of service connection for arthritis of
multiple joints, secondary to the service-connected malaria, and
determined that no new and material evidence had been submitted to
reopen the claim of service connection for a right hip disorder. R. at
321-23. In an August 1991 decision, the BVA remanded the multiple-joint
arthritis and right hip claims for further evidentiary development and
readjudication and referred a claim of service connection for residuals
of a back injury to the RO for further development. R. at 351-354.

In August 1991, a VA outpatient treatment record noted arthritis of the
right hip, knees, and ankles. R. at 358. In a statement in support of
claim dated March 1992, which referred, inter alia, to claims for hip
and back disabilities, the appellant stated that he \"need\[ed\] comp
exam.\" R. at 384. In May 1992, the RO denied, inter alia, service
connection for a back condition, determined that no new and material
evidence had been submitted to reopen the claim of service connection
for a right hip disorder, and confirmed the denial of service connection
for arthritis of multiple joints. R. at 391-92. In a June 1992 Form 1-9,
the appellant noted \"\[b\]ack problem of 2/44 \[and\] hip at same time
still bothers me and I walk with a limp.\" R. at 420-21.

In a July 1992 statement, Robert G. Haling, a chiropractor, reported
that he had initially seen the appellant in September 1980 for
complaints of low back and hip pain. Dr. Haling noted the appellant\'s
history of an injury incurred by the appellant\'s falling down steel
steps on a ship in 1941, and he recorded the appellant\'s statement that
he had walked with a limp ever since. Supplemental (Suppl.) R. at 1. In
a September 1992 hearing, the appellant and his wife testified that he
had experienced bouts of malaria over the years (R. at 424-28) and
continual hip pain (R. at 428-30). Later that same month, a VA hearing
officer confirmed the denial of service connection for arthritis of
multiple joints, and determined that no new and material evidence had
been submitted to reopen the claim of service connection for a right hip
disorder. R. at 434-36.

On March 16, 1994, in the decision here on appeal, the BVA, after first
finding that all relevant evidence had been obtained by the RO,
determined that (1) new and material evidence had been presented to
reopen the claim of service connection for a right hip disorder but
found that a right hip disorder was not incurred in or aggravated by
service; (2) arthritis of multiple joints other than the right hip was
not incurred in or aggravated by service; and (3) a well-grounded claim
had not been submitted for service connection for arthritis of multiple
joints, secondary to the appellant\'s service-connected malaria. The
appellant filed a timely appeal to the Court, arguing, inter alia, that
the BVA had breached the duty to assist by failing to provide a medical
examination and expert opinion as to the relationship between the
appellant's present disability and his injury in service. Brief (Br.) at
p. 17.

In a March 19, 1996, single-judge memorandum decision, the Court
affirmed the BVA decision, holding that the appellant had not submitted
well-grounded claims for either direct or secondary service connection
for arthritis of multiple joints other than the right hip, that no new
and material evidence had been submitted to reopen a claim of service
connection for a right hip disability, and that, as a consequence, the
duty to assist did not attach. *Savage v. Brown*, No. 94-503, 1996 WL
140584 (Vet. App. Mar. 19, 1996). On April 2, 1996, the appellant filed
a timely motion for panel review arguing that both a well-grounded claim
and new and material evidence had been presented. Appellant\'s Motion
for Panel Review of Memorandum Decision at 2-4. The appellant\'s motion
for panel review did not raise any issue with respect to or otherwise
reference VA [Adjudication Procedure Manual, M21-1]{.smallcaps}
\[hereinafter [Manual]{.smallcaps} M21-1\], Part III, para. 1.03(a),
cited *infra*, which was issued in February 1996. (The Court notes that
the appellant\'s brief was filed on August 18, 1995, his reply brief was
filed on December 21, 1995, and paragraph 2.10(f), cited *infra*, of
Part VI of the [Manual]{.smallcaps} M21-1 was issued in August 1996.) On
June 19, 1996, the Court denied the appellant\'s motion for panel review
and entered judgment. On July 3, 1996, the Court recalled its judgment,
revoked its June 19, 1996, order, and granted the appellant\'s motion
for panel review. In an order dated July 9, 1996, the Court stated:

> The Court granted the motion for panel review in order to determine
> what effect the application of 38 C.F.R. § 3.303(b) (1995) may have on
> the appellant\'s claims, including the underlying issues of what
> constitutes continuity of symptomatology and what effect that
> construct has on presenting evidence sufficient to well ground or to
> reopen a claim, as well as subsequently determining entitlement to
> service connection. Accordingly, it is
>
> ORDERED that each party file, within 30 days after the date of this
> order, a legal memorandum *addressing the following issues*: (1) What
> evidence of record constitutes evidence of continuity of
> symptomatology under section 3.303(b); (2) what effect does section
> 3.303(b) have on making evidence sufficient for purposes of
> well-groundedness under *Grottveit v. Brown*, 5 Vet.App. 91, 93
> (1993), and reopening under *Moray v. Brown*, 5 Vet.App. 211, 214
> (1993); *cf*. *Falzone v. Brown*, 8 Vet.App. 398, 405-06 (1995); (3)
> what effect does section 3.303(b) have on entitlement to service
> connection, *see Godfrey v. Brown*, 7 Vet.App. 398, 404, 407 (1995);
> and (4) whether section 3.303(b) applies only to chronic diseases as
> specifically listed in 38 U.S.C. § 1101(3); 38 C.F.R. §§ 3.309(a),
> 3.307(a)(3) (1995).
>
> The Court invites any other interested person or entity, as amicus
> curiae, to submit, within 30 days after the date of this order, legal
> memoranda *addressing the issues stated above*.

*Savage v. Brown*, U.S. Vet. App. No. 94-503 (Order July 9, 1996)
(emphasis added).

On November 20, 1996, after reviewing the parties\' responses to its
July 9, 1996, order the Court stated:

The Court granted the motion for panel review *in order to determine
what*

*effect the application of 38 C.F.R. § 3.303(b) (1995) may have on the*

*appellant\'s claims*, including the underlying issues of what
constitutes

continuity of symptomatology and what effect that has on presenting

evidence sufficient to well ground or to reopen a claim, as well as

subsequently determining entitlement to service connection. On July 9,

1996, the Court ordered the parties to submit legal memoranda addressing

a number of issues. After reviewing the parties\' responses, the Court

believes that further briefing is necessary. . . . Accordingly, it is

ORDERED that each party file, within 30 days after the date of this
order,

a legal memorandum *addressing the following issues*:

> \(1\) If the continuity of symptomatology provisions in section
> 3.303(b) are construed as eliminating the need for medical nexus
> evidence in certain cases (*see Grottveit* \[, 5 Vet.App. at 93\]
> (generally requiring \"competent medical evidence\" where \"the
> determinative issue involves medical causation or medical
> diagnosis\")): (a) Must there be a diagnosis of a current chronic
> disease; (b) what type of evidence is required to show that the
> condition was noted during service; (c) must continuity of
> symptomatology be established with evidence that is contemporaneous to
> the presence of the symptomatology or can it be established by present
> evidence that references past symptomatology; (d) must the evidence of
> continuity of symptomatology be documented in medical records or can
> it be otherwise documented or presented; (e) must there be
> medical-opinion evidence that the symptomatology is continuous and
> that the symptoms showed to have continued are related to the current
> condition; (f) must there be medical-opinion evidence showing a
> relationship between the condition noted in service and the
> postservice symptomatology as to which continuity is asserted; and (g)
> must there be medical-opinion evidence that the condition noted in
> service and the current condition constitute the same disease
> (although not necessarily showing that there is a causal relationship
> between the two)?
>
> \(2\) Section 3.303(b) states that continuity of symptomatology is
> required \"to support the claim.\" Does this language impose a
> restriction that service connection cannot be awarded in nonchronic
> in-service claims unless there is continuity of symptomatology? If §
> 3.303(b) is construed as imposing such a restriction, is such a
> constraint upon the award of service connection consistent with the
> terms of 38 U.S.C. § 1110?
>
> \(3\) Are the answers to any of the foregoing questions set forth in
> or derived from any publicly available Department of Veterans Affairs
> issuances or General Counsel opinions, and, if so, please cite them
> and provide copies?

It is further

ORDERED that the Clerk *invite interested amici curiae to submit
memoranda on the above questions* within the time allowed to the
parties*.*

*Savage v. Brown*, U.S. Vet. App. No. 94-503 (Order Nov. 20, 1996)
(emphasis added).

Subsequently, the Clerk of the Court issued an order, dated April 11,
1997, that set oral argument for May 19, 1997. The order was silent as
to the scope of the issues to be considered at oral argument. *Savage v.
Brown*, U.S. Vet. App. No. 94-503 (Order April 11, 1997).

Both the National Organization of Veterans Advocates and the American
Legion submitted amici filings. The American Legion's memorandum of law,
inter alia, referenced [Manual M21-1,]{.smallcaps} Part III, para.
l.03(a) (Feb. 23, 1996), and Part VI, para. 2.10(f) (Aug. 5, 1996), as
relevant to the disposition of the appeal, arguing for a remand to
fulfill the duty under those provisions to develop the claim, even if
the appellant were not otherwise to prevail in his appeal. Br. at 23-24.
On May 19, 1997, oral argument was held, during which, inter alia, the
appellant abandoned his appeal with respect to claim (3) and both the
appellant and the amicus curiae American Legion reasserted entitlement
to relief under the [Manual M21-1.]{.smallcaps}

**II. ANALYSIS**

A. Claim 3

As a consequence of the appellant's abandonment of claim 3, the Court
will not review it. *See Bucklinger v. Brown,* 5 Vet.App. 435, 436
(1993).

B. Claim 1\--Without Regard to 38 C.F.R. § 3.303(b)

As indicated in part I, *supra,* in 1981 the RO denied service
connection for a hip injury, even though a review of the record on
appeal indicates that the appellant had not yet filed a claim for this
condition. In 1994, the BVA denied a claim of service connection for
this condition after determining that new and material evidence had been
submitted to reopen the claim. The Court need not decide whether the
appellant's claim is an initial claim or one to reopen because,
regardless, the result is the same because the appellant has not met
either prerequisite threshold for having his claim decided on the
merits.

As to an initial claim, the appellant has the burden of submitting
evidence sufficient to justify a belief that his claims of service
connection are well grounded. *See* 38 U.S.C. § 5107(a); *Robinette v.
Brown*, 8 Vet.App. 69, 73 (1995). A claim is well grounded if it is
\"plausible.\" *Murphy v. Derwinski*, 1 Vet.App. 78, 81 (1990). Where
the determinative issue involves medical etiology or a medical
diagnosis, competent medical evidence that a claim is "plausible\" or
\"possible\" is required for the claim to be well grounded. *See Epps v.
Gober*, \_\_ F.3d \_\_, \_\_, No. 97-7014, slip op. at 9 (Fed. Cir. Oct.
7, 1997), *aff\'g* 9 Vet.App. 341 (1996) (adopting this Court\'s
definition of a well-grounded claim as set forth in *Caluza v. Brown*, 7
Vet.App. 498, 506 (1995), *aff\'d*, 78 F.3d 604 (Fed. Cir. 1996)
(table), and *Grottveit*, *supra*, including the requirement that
\"\[w\]here the determinative issue involves medical causation,
competent medical evidence to the effect that the claim is plausible is
required\"); *Heuer v. Brown*, 7 Vet.App. 379, 384 (1995); *Grottveit*,
*supra*. This burden may not be met merely by presenting lay testimony,
because lay persons are not competent to offer medical opinions. *See
Epps*, *supra*; *Grottveit*, *supra; Espiritu v. Derwinski*, 2 Vet.App.
492, 494 (1992). Service connection generally requires medical evidence
of a current disability; medical or, in certain circumstances, lay
evidence of in‑service incurrence or aggravation of a disease or injury;
and medical evidence of a nexus between the claimed in-service disease
or injury and the present disease or injury. *See Epps*, *supra*;
*Caluza*, *supra*; *see also Heuer* and *Grottveit,* both *supra.*
Whether a claim is well grounded is a question of law that this Court
determines de novo. *See Robinette,* 8 Vet.App. at 74.

As to a claim to reopen, the Secretary must reopen a previously and
finally disallowed claim when "new and material" evidence is presented
or secured with respect to that claim. *See* 38 U.S.C. §§ 5108, 7105(c).
\"New\" evidence is evidence that is not \"merely cumulative\" of other
evidence of record. *See* *Evans v. Brown,* 9 Vet.App. 273, 283 (1996);
*Blackburn v. Brown*, 8 Vet.App. 97, 102 (1995); *Cox v. Brown,* 5
Vet.App. 95, 98 (1993); *Colvin v. Derwinski*, 1 Vet.App. 171, 174
(1991). To be \"material,\" evidence must be probative of the issue at
hand (i.e., it must tend to prove the merits of the claim as to each
essential element that was a specified basis for that last final
disallowance of the claim), and, if it is probative, there must be a
reasonable possibility that in the context of all the evidence, both new
and old, the outcome of the case would be changed. *See Evans,* 9
Vet.App. at 284; *see also* *Justus v. Principi*, 3 Vet.App. 510, 513
(1992) (in determining whether evidence is new and material,
\"credibility\" of newly presented evidence is to be presumed). Whether
evidence is \"new and material\" is a question of law that this Court
determines de novo under 38 U.S.C. §7261(a)(1). *See Struck v. Brown*, 9
Vet.App. 145, 151 (1996); *Masors v. Derwinski*, 2 Vet.App. 181, 185
(1992); *Jones (McArthur) v. Derwinski*, 1 Vet.App. 210, 213 (1991).

Assuming that the appellant's claim is an initial submission, the only
medical evidence of record etiologically linking his present hip
condition to service is his own testimony. The appellant, however, is
not competent as a lay person to provide a medical opinion relating his
present arthritis to his fall in service. *See Epps*, *supra*; *Slater
v. Brown*, 9 Vet.App. 240, 243 (1996) (medical evidence is needed to
provide causal nexus between veteran's in-service injury and arthritis
of cervical spine). Because the record contains no competent medical
evidence establishing such a relationship, the claim is not well
grounded. *See Epps*, *supra*; *Caluza*, 7 Vet.App. at 504; *Grottveit*,
*supra*.

Assuming that the appellant's claim is one to reopen his previously
denied claim for a hip injury, his testimony indicating that he injured
his hip as a consequence of an in-service fall is new and probative as
to the basis for the 1981 RO denial, which was that the appellant had
not injured his hip in service. Nevertheless, considering this new
evidence with the old evidence of record, in the absence of any medical
evidence etiologically linking the appellant's present condition to
service there is no reasonable possibility of outcome change, and, thus,
new and material evidence has not been presented. *See Evans,* 9
Vet.App. at 283 (1996); *Moray*, 5 Vet.App. at 213-14 (new and material
evidence, to have reasonable possibility of outcome change, must contain
medical evidence of causation where lay evidence will not suffice);
*Slater*, *supra* (medical evidence is required to provide causal nexus
between veteran\'s in-service injury and his arthritis).

C. Claim 2\--Without Regard to 38 C.F.R. § 3.303(b)

In part II.B., *supra*, the Court set forth the requirements for a
well-grounded claim. Although the record on appeal clearly shows that
during service the appellant fell down steps on a ship and was
thereafter treated for back pain on a number of occasions, there is no
medical evidence of record showing any etiological relationship between
his arthritis of multiple joints, other than the right hip, and service.
Thus, the appellant's claim is not well grounded. *See Caluza* and
*Grottveit*, both *supra.*

D. Claims 1 and 2\--Impact of 38 C.F.R. § 3.303(b)

In view of the Court's analysis in parts II.B. and C., *supra*, the
question now becomes whether, based on the application of § 3.303(b),
there is evidence of record, alternatively, to well ground or reopen
claim 1 or to well ground claim 2.

Section 3.303(b) provides:

> *Chronicity and continuity*. With chronic disease shown as such in
> service (or within the presumptive period under § 3.307) so as to
> permit a finding of service connection, subsequent manifestations of
> the same chronic disease at any later date, however remote, are
> service connected, unless clearly attributable to intercurrent causes.
> This rule does not mean that any manifestation of joint pain, any
> abnormality of heart action or heart sounds, any urinary findings of
> casts, or any cough, in service will permit service connection of
> arthritis, disease of the heart, nephritis, or pulmonary disease,
> first shown as a clearcut clinical entity, at some later date. For the
> showing of chronic disease in service there is required a combination
> of manifestations sufficient to identify the disease entity, and
> sufficient observation to establish chronicity at the time, as
> distinguished from merely isolated findings or a diagnosis including
> the word "Chronic." When the disease identity is established (leprosy,
> tuberculosis, multiple sclerosis, etc.), there is no requirement of
> evidentiary showing of continuity. Continuity of symptomatology is
> required only where the condition noted during service (or in the
> presumptive period) is not, in fact, shown to be chronic or where the
> diagnosis of chronicity may be legitimately questioned. When the fact
> of chronicity in service is not adequately supported, then a showing
> of continuity after discharge is required to support the claim.

38 C.F.R. § 3.303(b) (1996).

1\. Chronicity

Section 3.303(b) provides that a veteran may utilize the \"chronic
disease shown as such in service\" provision when the evidence
demonstrates: (1) that the veteran had a chronic disease in service, or
during an applicable presumption period \[hereinafter element 1\]; and
(2) that the veteran presently has the same condition \[hereinafter
element 2\].

With respect to element 1, two questions are posed: (a) is medical
evidence needed to demonstrate the existence in service or in the
presumption period of such a chronic disease, or will lay evidence
suffice; and (b) must such evidence be contemporaneous with the time
period to which it refers, or can post-service or
post-presumption-period evidence address existence in service?

With respect to question (a), the answer depends on whether the
disability is of a type that requires medical expertise to demonstrate
its existence (*see Epps, supra*; *Caluza*, 7 Vet.App. at 506; *Heuer*,
7 Vet.App. at 384; *Grottveit*, *supra*) or whether the disability is of
the type as to which lay observation is competent to identify its
existence (*see Falzone*, 8 Vet.App. at 403 (citing *Harvey v. Brown*, 6
Vet.App. 390, 393 (1994) for the proposition that medical causation
evidence may not be necessary for conditions that lend themselves to lay
observation such as flat feet); *Layno v. Brown*, 6 Vet.App. 465, 470
(1994); *Horowitz v. Brown*, 5 Vet.App. 217, 221-22 (1993); *Budnik v.
Derwinski*, 3 Vet.App. 185, 186-87 (1992)).

With respect to question (b), either evidence contemporaneous with
service or the presumption period or evidence that is post service or
post presumption period may suffice. In so holding, the Court notes the
following. First, the language of the regulation (\"first shown as a
clear‑cut clinical entity, at some *later* date\" (emphasis added))
appears to contemplate the use of post‑service or
post-presumption-period evidence of in-service or presumption-period
disease. Second, to the extent that the language of the regulation is
ambiguous, \"interpretive doubt is to be construed in the veteran's
favor.\" *Brown v. Gardner,* 513 U.S. 115, 117-18 (1994) (citing *King
v. St. Vincent's Hosp.*, 502 U.S., 215, 220-21 n. 9 (1991)). Third,
limitations on the dating of evidence have been found only where there
has been clear regulatory guidance to that effect. *See Russell v.
Principi,* 3 Vet.App. 310, 313-14 (1992) (en banc) (interpreting 38
C.F.R. § 3.105(a) and holding that a \"determination that there was a
clear and unmistakable error must be based on the record and the law
that existed at the time of the prior \[adjudication in question\]\").

With respect to element 2, again the question becomes whether medical
evidence is needed to demonstrate that a veteran presently has the same
condition he or she had in service or during a presumption period or
whether lay evidence will suffice. Again, the answer depends on the
nature of the veteran's present condition, i.e., whether it is of a type
that requires medical expertise to identify it as the same condition as
that in service or during a presumption period, or whether it can be so
identified by lay observation. *See Epps, Caluza, Heuer, Grottveit,
Falzone,* and *Harvey,* all *supra.*

The Court proceeds now to apply the preceding analysis to claims 1 and
2. Although the appellant was treated for a back condition in service,
there is no medical evidence that demonstrates that either the
appellant's back condition or hip condition were chronic in service or
during the one‑year presumption period for arthritis. 38 C.F.R. §§
3.307(a)(3), 3.309(a) (1996). Medical evidence is needed to provide a
causal nexus between the veteran\'s in-service injury and his arthritis.
*See Slater*, *supra.* Because the record contains no such evidence,
element 1 cannot be satisfied. Because element 1 cannot be satisfied,
element 2, by definition, cannot be satisfied either.

2\. Continuity of Symptomatology

If the evidence fails to demonstrate the applicability of the chronicity
provision of § 3.303(b), a VA claimant may still obtain the benefit of §
3.303(b) (that is, providing a substitute way of showing in-service
incurrence and medical nexus for purposes of well grounding or reopening
a claim, as set forth in part II.B., *supra)* if continuity of
symptomatology is demonstrated. The questions raised by the regulation
with respect to establishing continuity of symptomatology are: (a) how
is the existence of continuity of symptomatology determined; (b) does a
condition \"noted during service\" require a noting contemporaneous to
service or through any special documentation; and (c) is any medical
evidence of nexus needed in order to obtain the benefit of this
provision?

With respect to question (a), whether there is continuity of
symptomatology in connection with well-grounding a claim, *see*
*Caluza*, 7 Vet.App. at 504; *Grottveit*, 5 Vet.App. at 93, or reopening
a finally denied claim, *see* *Evans,* 9 Vet.App. at 283; *Moray*, 5
Vet.App. at 213-14, is a question that the Court determines de novo.
*See* 38 U.S.C. § 7261(a)(1); *see also Robinette*, 8 Vet.App. at 76
(evidence presumed credible for purpose of determining whether claim is
well grounded); *Justus*, 3 Vet.App. at 513 (evidence presumed credible
for purpose of determining whether evidence is new and material). If the
Court is reviewing a BVA decision on the merits, a determination by the
BVA as to continuity of symptomatology would be one of fact that the
Court would review under the clearly erroneous standard. *See* 38 U.S.C.
§ 7261(a)(4) (review by the Court is as to BVA \"finding of material
fact made in reaching a decision in a case before the Department with
respect to benefits under laws administered by the Secretary\");
*Gilbert v. Derwinski,* l Vet.App. 49, 53 (1990) (\"if there is a
\'plausible\' basis in the record for the factual determinations of the
BVA . . . \[the Court\] cannot overturn them\").

Regardless of context, the Court notes that symptoms, not treatment, are
the essence of any evidence of continuity of symptomatology. *See Wilson
v. Derwinski*, 2 Vet.App 16, 19 (1991) (\"regulation requires continuity
of symptomatology, not continuity of treatment\"). As to threshold
determinations of well groundedness or the existence of new and material
evidence, such evidence is generally presumed credible and is not
subject to weighing. *See King (Roderick) v. Brown*, 5 Vet.App. 19, 21
(1993); *Justus*, *supra* (in determining whether evidence is new and
material, \"credibility\" of newly presented evidence is to be presumed
unless evidence is inherently incredible or beyond competence of
witness). (However, the Court notes that in a merits context the lack of
evidence of treatment may bear on the credibility of the evidence of
continuity.)

With respect to question (b), the Secretary asserts that the noting
requirements of § 3.304(b) (\"\[o\]nly such conditions as are recorded
in examination reports are to considered as noted\") are to be
superimposed on § 3.303(b). The Court rejects the Secretary\'s assertion
and holds that as long as the condition is noted at the time the veteran
was in service such noting need not be reflected in any written
documentation (other than as required to be in a format sufficient for
inclusion as part of the record and proceedings before the Secretary and
the Board (*see Rogozinski* *v. Derwinski*, l Vet.App. 93, 94 (1990))),
either contemporaneous to service or otherwise. In so holding, the Court
notes the following. First, nothing in the language of § 3.303(b)
suggests that \"being noted\" is limited to recordation in examination
reports. Second, the recordation-in-examination report requirement of §
3.304(b) is for the veteran's benefit rather than to his or her
detriment, as would be the case if it were superimposed on § 3.303(b).
Third, the Secretary\'s argument contains the seeds of its own defeat;
the very fact that the Secretary has required in § 3.304(b) written
documentation for the notation of a preexisting condition strongly
suggests that reading such a documentation requirement into § 3.303(b),
where the Secretary did not elect to include one specifically, would be
unwarranted. *See Russello v. United States*, 464 U.S. 16, 23 (1983)
(\"where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion\") (quoting *United States v. Wong Kim Bo*, 472
F.2d 720, 722 (5th Cir. 1972)) (internal quotation marks omitted);
*Smith v. Brown*, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (\"canons of
construction of course apply equally to any legal text and not merely to
statutes\"). Fourth, the principal definition of \"noted\" does not
require a writing, [Webster's New World Dictionary]{.smallcaps} 927 (3d
College ed. 1991) (defining \"noted\" as \"**1** to pay close attention
to; heed; notice; observe\[;\] **2** to set down in writing; make a note
of\"). Fifth, to the extent that the language of the regulation is
ambiguous, \"interpretive doubt is to be construed in the veteran's
favor.\" *Gardner,* 513 U.S. at 117‑18. Sixth, if service records have
been lost through no fault of the veteran, it would be unfair to require
that a writing be contained in a service record. Seventh, limitations on
dating and type of evidence have been found in only the few instances
where there has been clear regulatory guidance to that effect. *See
Russell, supra* and *Tubianosa v. Derwinski,* 3 Vet.App. 181, 184 (1992)
(interpreting 38 C.F.R. § 3.374(c) and holding that private physician\'s
diagnosis of tuberculosis being manifest during the presumption period
must be corroborated by \"acceptable clinical, x-ray or laboratory
studies\")*;* *Espiritu,* 2 Vet.App. at 494-95 (expert evidence required
where subject matter necessitates expert opinion). Of course, as to type
of evidence, unless the condition is of a type as to which a lay
person\'s observation is competent, medical evidence of noting will be
required. *See Caluza, supra.*

With regard to question (c), if the continuity of symptomatology
provision of § 3.303(b) requires that there be medical-nexus evidence
relating the veteran's present disability to service (*see* *Grottveit*
and *Moray, supra* (medical-nexus evidence of relationship between
present disability and service is generally required for purposes of
well grounding a claim and reopening a previously disallowed claim)),
the continuity of symptomatology provision would simply be a nullity.
Thus, the Court holds that no such medical-nexus evidence is required.
Nevertheless, because it would not necessarily follow that there is a
relationship between any present disability and the continuity of
symptomatology demonstrated, medical evidence (*see Epps*, *Caluza*,
*Heuer* and *Grottveit*, all *supra*) is required to demonstrate such a
relationship unless such a relationship is one as to which a lay
person\'s observation is competent (*see Falzone*, *Layno*, *Horowitz*,
and *Budnik*, all *supra*).

The Court will now apply the preceding analysis to claims 1 and 2. As
indicated in part I., *supra*, the appellant testified at his January
1991 hearing that while in service he fell down steel steps, landed on
his hip and back, and was hospitalized for approximately ten days. R. at
307-08. He reported that he was limping at the time of discharge (R. at
309), that he had walked with a limp ever since (Suppl. R. at 1), and
that he had received heat treatments and massages over the years,
although not through the VA system (R. at 311). This testimony, for
purposes of well-groundedness and reopening determinations, is presumed
credible because it is not inherently incredible or beyond the
competence of the appellant, as a lay person, to observe. *See Justus*
and *King,* both *supra.* Thus, even if the record did not contain
service medical records showing treatment in service for a back problem,
continuity of symptomatology has been demonstrated because a noting
during service requires that the evidence show only that a condition was
observed during service, or during the presumption period, but does not
require that such observation be recorded, either in special
documentation or during the time of service or during the presumption
period.

Furthermore, for the purposes of determining whether the hip claim is
well grounded or, alternatively, whether new and material evidence has
been presented to reopen the previously disallowed hip claim, and
whether the back claim is well grounded, the appellant\'s statements
outlined in the preceding paragraph are, in and of themselves,
sufficient to show continuity of symptomatology. (Because of the
Court\'s determination regarding these statements, it need not address
whether the August and December 1985 VA progress notes indicating a long
history of back and hip problems are sufficient to demonstrate
continuity of symptomatology.)

Finally, notwithstanding the appellant\'s showing of post-service
continuity of symptomatology and noting during service with respect to
both the hip and back conditions, medical expertise is required to
relate the appellant's present arthritis etiologically to his
post-service symptoms. *See Epps*, *supra*; *Slater*, 9 Vet.App. at 243.
Because the record is devoid of any such evidence, the appellant has not
submitted evidence sufficient to well ground or, alternatively, reopen
his hip condition claim or to well ground his back condition claim, and,
as a consequence, the duty to provide a medical examination and opinion
was not triggered under 38 U.S.C. § 5107(a). *See Epps*, *\_\_* F.3d at
\_\_, slip op. at 9-10; *Caluza*, 7 Vet.App. at 504; *Grottveit*, 5
Vet.App at 93. Hence, with respect to all issues considered in parts
II.B.-D., *supra*, the Court will affirm as to the BVA\'s disallowance
of the hip condition and back condition claims. *See Sutton v. Brown*, 9
Vet.App. 553, 563 (1996) (Court affirmed BVA denial of claim on merits
where Court concluded that appellant not entitled to merits adjudication
because no new and material evidence to reopen); *Edenfield v. Brown*, 8
Vet.App. 384, 390 (1995) (en banc) (holding that Board\'s incorrectly
reaching merits where claim was not well grounded was nonprejudicial
error).

In sum, then, the rule here established is as follows: The chronicity
provision of § 3.303(b) is applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in service or during
an applicable presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as to which,
under the Court\'s case law, lay observation is competent. If the
chronicity provision is not applicable, a claim may still be well
grounded or reopened on the basis of § 3.303(b) if the condition is
observed during service or any applicable presumption period, continuity
of symptomatology is demonstrated thereafter, and competent evidence
relates the present condition to that symptomatology.

E. Issue of [Manual]{.smallcaps} M21-1

The Court declines to review any issue raised by the appellant and by
the American Legion, as amicus curiae, regarding the Manual M21-1. *See*
U.S. V[et. App. R.]{.smallcaps} 35(e) (\"A motion for reconsideration or
review must state the points of law or fact which the party believes the
Court has overlooked or misunderstood, and must contain an argument in
support of the party\'s position.\"). The appellant, in his motion for
panel review, made no reference to paragraph 1.03(a) of part III of
[Manual]{.smallcaps} M21-1, which was in effect at the time that his
motion was filed*, see* Appellant\'s Motion for Panel Review of
Memorandum Decision, and the two briefing orders, applicable to the
parties as well as amici curiae, issued by the panel, on July 9, 1996,
and November 20, 1996, specifically raised questions only pertaining to
§ 3.303(b)*, see ante* at , slip op. at 5 - 7. *Compare Tubianosa*, 3
Vet.App. at 184 (\"Advancing different arguments at successive stages of
the appellate process does not serve the interests of the parties or the
Court. Such a practice hinders the decision-making process and raises
the undesirable specter of piecemeal litigation.\"), *with* *Gilbert*, 1
Vet.App. at 63 (Nebeker, C.J., concurring) (\"That we considered the
arguments belatedly raised by the Secretary in *Fugere* is best
characterized as the exception rather than the rule.\").

**III. CONCLUSION**

The March 16, 1994, decision of the BVA is AFFIRMED.