**UNITED STATES COURT OF VETERANS APPEALS**

No. 97-1023

[Kenneth D. Wallin, Appellant,]{.smallcaps}

[v.]{.smallcaps}

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

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

On Appeal from the Board of Veterans\' Appeals

(Decided October 16, 1998 )

*Samuel M. Tumey* was on the pleadings for the appellant.

*Robert E. Coy*, Acting General Counsel; *Ron Garvin*, Assistant General
Counsel; *R. Randall Campbell*, Deputy Assistant General Counsel; and
*Mary Ann Flynn* were on the pleadings for the appellee.

Before NEBEKER, *Chief Judge*, and IVERS and GREENE, *Judges*.

IVERS, *Judge*: The veteran appeals from a May 8, 1997, Board of
Veterans\' Appeals (BVA or Board) decision denying, as not well
grounded, the appellant\'s claim for service connection for ankylosing
spondylitis as secondary to service-connected bacillary dysentery.
Record (R.) at 3. The Secretary has filed a motion for summary
affirmance. This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court
will reverse the decision of the Board and remand the matter for
adjudication.

**I. FACTS**

The veteran served on active duty from December 1947 to December 1951.
R. at 2. In August 1948, while admitted to a service hospital for
observation for malaria (R. at 53), the veteran was diagnosed with
bacillary dysentery. R. at 36-37. Bacillary dysentery is \"an infectious
disease caused by bacteria of the genus Shigella, and marked by
intestinal pain, tenesmus, diarrhea with mucus and blood in the stools,
and more or less toxemia.\" [Dorland\'s Illustrated Medical Dictionary
514 (28]{.smallcaps}th ed. 1994) \[hereinafter
[Dorland\'s\]]{.smallcaps}. His separation examination report shows that
the spine was found to be normal and that the veteran was neurologically
well. R. at 76-82. In April 1965, the veteran was diagnosed with costal
chondritis in a VA hospitalization summary. R. at 129. \"Costal
chondritis\" is an \"inflammation of the cartilage . . . pertaining to a
rib or ribs.\" [Dorland\'s]{.smallcaps} at [320]{.smallcaps}. The
summary reveals that he had nine months of chest pain which was preceded
by an upper respiratory infection (R. at 129-30). The radiological
report indicates moderate degenerative changes of the cervical spine,
most marked at the C6-7 level. R. at 105. (The Court notes that records
from St. Luke\'s Hospital of Duluth, Minnesota, in both May 1969 and May
1979, indicate a history of whiplash in the 1960\'s. R. at 154‑63, 248).
Also in April 1965, the regional office granted service connection for
dysentery but determined the condition to be noncompensable. R. at 133.

Between November 1989 and August 1992, VA outpatient treatment records
show treatment for the veteran\'s back complaints. R. at 199-225. They
are negative for a link to bacillary dysentery (*id*.), but records from
St. Luke\'s Hospital, dated October 1992, indicate that the veteran had
HLA‑B27 positive ankylosing spondylitis. R. at 257. \"Ankylosing
spondylitis\" is \"the form of rheumatoid arthritis that affects the
spine. It is a systemic illness of unknown etiology, affecting young
males predominantly, and producing pain and stiffness as a result of
inflammation of the sacroiliac, intervertebral, and costovertebral
joints.\" [Dorland\'s]{.smallcaps} at [1563]{.smallcaps}. In his July
1993 testimony before the Board, the veteran theorized about a link
between the bacillary dysentery that he had acquired in service, and his
current ankylosing spondylitis. R. at 287. The veteran\'s contentions
were admittedly based on his own diagnosis, and he claimed to have
learned of the link from reading medical texts. R. at 288. One such
text, titled [Understanding Arthritis and Rheumatism]{.smallcaps}
(Malcolm I.V. Jayson, M.D., and Allan St. J. Dixon, M.D.) states, \"It
is likely that \[ankylosing spondylitis\] is a reaction by the immune
system of susceptible individuals to bacterium that lives in the large
bowel of many people. B27 positive individuals tend to develop a
reactive arthritis after exposure to certain bacteria, including
*Shigella* . . . .\" R. at 269. Accordingly, the veteran asserted that
if people with the HLA-B27 gene contract bacillary dysentery, the immune
system reacts and the combination of the gene and the dysentery can lead
to ankylosing spondylitis. R. at 289. In October 1994, the veteran
submitted excerpts from a medical text titled [Diseases]{.smallcaps}
(June Norris, et al., 1993)[.]{.smallcaps} R. at 301-07. This text
states that ankylosing spondylitis usually occurs as a primary disorder,
but also may occur in association with gram-negative dysentery. R. at
303.

In October 1994, VA afforded the veteran a medical examination. The
examining physician said that, even though the veteran\'s previous
gastrointestinal infections could lead to Reiter\'s Syndrome, the
physician was unaware of such an infection leading to ankylosing
spondylitis. R. at 319. \"Reiter\'s syndrome\" is \"a triad of symptoms
of unknown etiology . . . chiefly affecting young men, and usually
running a self-limited but relapsing course. Most affected patients have
increased levels of histocompatibility antigen HLA-B27. It possibly
represents an abnormal immune response to certain infections, perhaps
related to hereditary susceptibility.\" [Dorland\'s]{.smallcaps} at
1638. The physician denied that the veteran\'s condition was Reiter\'s
Syndrome, and explained that it was unlikely that the veteran\'s
dysentery had led to ankylosing spondylitis. *Id*. In December 1994, a
second VA physician was asked to review the medical texts submitted by
the veteran. This physician also discredited the veteran\'s contentions
that the texts established a link between his bacillary dysentery and
his ankylosing spondylitis. R. at 328. However, he admitted that
dysentery may cause Reiter\'s syndrome, but denied any evidence that
such dysentery can lead to ankylosing spondylitis. *Id*. In April 1996,
a third VA physician indicated that the [Cecil Textbook of
Medicine]{.smallcaps} (James B. Wyngaarden, et al, eds., 19th
ed.)[,]{.smallcaps} submitted by the veteran, was not supportive of the
veteran\'s claim. R. at 378. Again, in December 1996, that same VA
physician denied a link between the veteran\'s in-service bacillary
dysentery and his current ankylosing spondylitis. R. at 398. He further
stated that simply having the HLA-B27 gene does not prove that the two
conditions are linked. R. at 398.

In May 1997, the Board determined that the veteran\'s claim was not well
grounded. R. at 1‑10. A notice of appeal was timely filed.

**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); *Carbino v. Gober,* 10 Vet.App.
507 (1997)*; Anderson v. Brown,* 9 Vet.App. 542, 545 (1996). 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. 79, 81 (1990). In *Tirpak
v. Derwinski*, 2 Vet.App. 609, 611 (1992), the Court held that a claim
must be accompanied by supportive evidence and that such evidence \"must
\'justify a belief by a fair and impartial individual\' that the claim
is plausible.\" For a claim to be well grounded, there generally 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. *See
Anderson, supra*; *Caluza v. Brown,* 7 Vet.App. 498, 506 (1995),
*aff'd*, 78 F.3d 604 (Fed. Cir. 1996) (table). The determination whether
a claim is well grounded is a conclusion of law subject to de novo
review by the Court under 38 U.S.C. § 7261(a)(1). *Anderson, supra*;
*Grottveit v. Brown,* 5 Vet.App. 91, 93 (1993).

In should be noted that secondary service connection claims must also be
well grounded. 38 U.S.C. § 5107(a); *Locher v. Brown*, 9 Vet.App. 535,
538 (1996); *Jones v. Brown*, 7 Vet.App. 134, 136-38 (1994). Because the
veteran claims that his ankylosing spondylitis was caused by his
service-connected bacillary dysentery, he must show service connection
for ankylosing spondylitis on a secondary basis; that is, there must be
evidence that the disability claimed is proximately due to or the result
of his service-connected disease. 38 U.S.C. § 1110; 38 C.F.R. §
3.310(a).

Where the determinative issue involves etiology or a medical diagnosis,
competent medical evidence that a claim is \"plausible\" or \"possible\"
is the threshold requirement for the claim to be well grounded. *Heuer
v. Brown*, 7 Vet.App. 379, 384 (1995); *Grottveit*, 5 Vet.App. at 93.
Such determinations require \"specialized knowledge or training,\" and,
therefore, cannot be made by a lay person. *Layno v. Brown*, 6 Vet.App.
465, 470 (1994); *see also* *Espiritu v. Derwinski*, 2 Vet.App. 492, 495
(1992). Lay persons are not competent to offer medical opinions because
the \"question\[s\] involved \[do\] not lie within the range of common
experience or common knowledge.\" *Id*. (quoting *Frye v. United
States*, 293 F. 1013, 1014 (1923)).

Although this Court has previously found a veteran\'s lay opinion,
coupled with reliance on medical treatises, to be insufficient to
satisfy the medical nexus requirements necessary to an award of service
connection, the Court has not pronounced such treatise evidence as
insufficient to well ground a claim. In *Libertine v. Brown*, the Court
held that the veteran\'s statements, taken together with published
medical authorities, did not provide the requisite medical evidence to
demonstrate a causal relationship between that veteran\'s claimed
disability and his service. 9 Vet.App. 521, 523 (1996). However, in
*Libertine*, the Court did not address the validity and credibility of
medical treatises as evidence. It simply found that, if such evidence is
presented, it must demonstrate a connection between service incurrence
and a present injury or condition. *Id*.

In *Beausoleil v. Brown*, the Court addressed the specificity required
when attempting to link a service-incurred injury to a present
condition. 8 Vet.App. 459 (1996). The Court held that a VA physician\'s
statement, that \"Trauma to the chest can cause restrictive lung
disease,\" did not link chest trauma specifically to the veteran\'s
current condition. *Id*. at 463. The Court ruled this fact-specific
evidence to be insufficient due to the \"generic statement about the
*possibility* of a link between chest trauma and restrictive lung
disease.\" It stated that \"\[s\]uch a statement is too general and
inconclusive to make the claim well grounded in the appellant\'s case.\"
*Id*.

In *Sacks v. West,* this Court held that a medical article that
contained a generic statement regarding a possible link between a
service-incurred mouth blister and a present pemphigus vulgaris
condition, did not satisfy the nexus element of a well-grounded claim.
11 Vet.App. 314 (1998). The Court considered this to be analogous to
such statements as \"occasional joint pain is usually an early symptom
of arthritis or . . . an incident of chest pain will usually occur
before heart disease is diagnosed.\" *Id*. at 317. As a result, the
Court did not accept this particular medical treatise evidence as
sufficient to demonstrate the requisite medical nexus for a
well-grounded claim. However, the Court cautioned that its \"holding
does not extend to a situation where medical article or treatise
evidence, standing alone, discusses generic relationships with a degree
of certainty such that, under the facts of a specific case, there is at
least plausible causality based upon objective facts rather than on an
unsubstantiated lay medical opinion.\" *Id*.

Similarly, the recognition of medical treatise evidence is common in
other areas of the law. For example, for the purposes of trial, the
Federal Rules of Evidence allow for the admissibility of such treatises.
*See* [Fed. R. Evid.]{.smallcaps} 803(18). The rule provides for the
admissibility of the following evidence as an exception to the hearsay
rule:

> To the extent called to the attention of an expert witness upon
> cross-examination or relied upon by the expert witness in direct
> examination, statements contained in published treatises, periodicals,
> or pamphlets on a subject of history, medicine, or other science or
> art, established as a reliable authority by the testimony or admission
> of the witness or by other expert testimony or by judicial notice. If
> admitted, the statements may be read into evidence but may not be
> received as exhibits.

*Id*.

Prior to *Sacks*, this Court had acknowledged the usefulness of medical
treatise evidence as reliable authority. *See* *Colvin v. Derwinski*, 1
Vet.App. 171, 175 (1991) (The Court found that \"\[i\]f the medical
evidence of record is insufficient, or, in the opinion of the BVA, of
doubtful weight or credibility, the BVA is always free to supplement the
record by . . . citing recognized medical treatises in its decisions
that clearly support its ultimate conclusions\"); *Murphy*, 1 Vet.App.
at 81 (Court decided that BVA decisions must include \"reasons and
bases\" which can \"include relevant portions of medical treatises and
journals\"). However, and more significant to this analysis, this Court
must determine whether such evidence can be sufficient to well ground a
claim for service connection. As previously discussed, it is necessary
to provide medical evidence that is specific with regard to the causal
link between a veteran\'s past and present disabilities. However, it is
important to note this Court\'s holding in *Robinette v. Brown,* that in
order for a claim \"to be well grounded \[it\] need not be supported by
evidence sufficient for the claim to be granted. Rather, the law
establishes only a *preliminary* threshold of plausibility with enough
of an evidentiary basis to show that the claim is capable of
substantiation.\" 8 Vet.App. 69, 76 (1995); *see also Alemany v. Brown*,
9 Vet.App. 518, 519 (1996) (holding medical evidence as to nexus to
service expressed as \"possible\" suffices for that aspect of a
well-grounded claim); *Molloy v. Brown*, 9 Vet.App. 513, 516 (1996)
(citing *Lathan v. Brown*, 7 Vet.App. 359, 366 (1995) (illustrating that
medical opinions need not \'be expressed in terms of certainty in order
to serve as the basis for a well-grounded claim\")). According to this
Court\'s decision in *Grottveit,* \"where the determinative issue
involves medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is \'plausible\' or \'possible\'
is required.\" 5 Vet.App. at 93.

In this case, the veteran has unquestionably satisfied the first two
requirements of *Caluza* by obtaining a medical diagnosis of a current
disability caused by ankylosing spondylitis (R. at 172), and by
successfully using service medical records to demonstrate the in-service
occurrence of bacillary dysentery (Shigella) (R. at 36-37). As for the
third requirement of *Caluza*, the veteran has presented medical
evidence in the form of medical treatises in an attempt to establish a
nexus between his in-service disease and his current disability. He has
attempted to show that, because of his genetic predisposition, he has a
heightened risk of developing ankylosing spondylitis and, unlike the
facts in *Libertine*, *Beausoleil*, and *Sacks*, the veteran in this
case has submitted medical evidence that discusses the plausibility of
such a link. The evidence here does not simply provide speculative
generic statements not relevant to the veteran\'s claim, as in cases
previously before the Court. Instead, as allowed by the Court in
*Sacks*, this treatise evidence \"standing alone, discusses generic
relationships with a degree of certainty such that, under the facts of a
specific case, there is at least plausible causality based upon
objective facts rather than on an unsubstantiated lay medical opinion.\"
11 Vet.App. at 317.

In this case, the veteran has offered evidence that is deemed plausible,
and thereby satisfies the initial burden of 38 U.S.C. § 5107(a) that a
claim be well grounded.

**III. CONCLUSION**

For the reasons stated above, the Court holds the veteran\'s claim to be
well grounded. Thus, the Board\'s May 8, 1997, decision is REVERSED and
the matter is REMANDED for adjudication on the merits. A new decision
must be supported by an adequate statement of reasons or bases under 38
U.S.C. § 7104(d)(1) and *Gilbert*, 1 Vet.App. 56-57.