**UNITED STATES COURT OF VETERAN APPEALS**

No. 97-27

[Mark W. Hampton, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Hershel W. Gober]{.smallcaps},

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

On Appeal from the Board of Veterans\' Appeals

(Decided November 5, 1997 )

*Mark W. Hampton, pro se*.

*Mary Lou Keener*, General Counsel; *Ron Garvin*, Assistant General
Counsel; *Adrienne Koerber*, Deputy Assistant General Counsel; and
*Patricia Trujillo* were on the brief for the appellee.

Before NEBEKER, *Chief Judge*, and KRAMER and STEINBERG*, Judges*.

KRAMER, *Judge*: The appellant, Mark W. Hampton, appeals a December 18,
1996, decision of the Board of Veterans\' Appeals (BVA or Board) which
determined, inter alia, that the appellant\'s claim for service
connection for a left knee disorder was not well grounded. Record (R.)
at 1-7. 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 BVA and remand the matter.

Under 38 U.S.C. § 5107(a), the appellant has the burden of submitting
evidence sufficient to justify a belief that his claim of entitlement to
service connection is well grounded. *See Robinette v. Brown*, 8
Vet.App. 69, 73 (1995). Where the determinative issue involves medical
etiology or a medical diagnosis, competent medical evidence that a claim
is \"plausible\" or \"possible\" is generally required for the claim to
be well grounded. *Heuer v. Brown*, 7 Vet.App. 379, 384 (1995);
*Grottveit v. Brown*, 5 Vet.App. 91, 93 (1993). Establishing 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 Caluza v. Brown*, 7 Vet.App. 498, 506
(1995), *aff\'d per curiam*, 78 F.3d 604 (Fed. Cir. 1996) (table); *see
also Heuer* and *Grottveit,* both *supra.* The determination whether a
claim is well grounded is subject to de novo review by this Court. *See
Robinette*, 8 Vet.App. at 74.

In its decision, the BVA determined that the appellant\'s claim was not
well grounded because it found that there was no medical evidence of a
current disability related to service. R. at 1-7. In support of this
conclusion, the Board noted that \"\[n\]o pertinent complaints or
findings referable to left knee disability were recorded in connection
with the \[May 1993\] VA \[disability\] examination.\" R. at 4. Because
the Court finds that there is medical evidence of record that the
appellant currently suffers from a left knee disability (R. at 96), that
he was treated for bilateral knee pain in service (R. at 22), and that
the current left knee condition may be linked to service (R. at 96), the
Court holds that the claim is well grounded.

Specifically, the appellant\'s service medical records indicate
treatment in service for bilateral knee pain, diagnosed as infrapatellar
tendinitis. R. at 22. Also of record is a March 1993 separation
examination report wherein the appellant was diagnosed with a bilateral
knee condition. R. at 96. Considering that the appellant filed a
disability claim for a left knee condition in April 1993, approximately
one month after his separation examination, the Court finds that the
diagnosis of a bilateral knee condition contained in the separation
examination report provides evidence of both a current left knee
condition and a relationship to service. The Court holds that because
the report from the VA disability examination, conducted in May 1993,
contained no express findings regarding the appellant\'s left knee (R.
at 114-29), it cannot plausibly support a finding that the appellant
does not have a current left knee condition. *See Gilbert v. Derwinski*,
1 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\"); *cf. Wisch v. Brown*, 8 Vet.App. 139, 140
(1995) (per curiam order) (claim for service connection based on
aggravation of preexisting condition was remanded by Court because VA
examination relied on by BVA did not specifically address whether
appellant\'s condition was aggravated by service).

Moreover, the Court notes that the duty to assist was triggered because
the appellant\'s claim is well grounded within the meaning of 38 U.S.C.
§ 5107(a). *See Allday v. Brown*, 7 Vet.App. 517, 526 (1995); *Murphy v.
Derwinski*, 1 Vet.App. 78, 81-82 (1990) (Secretary is obligated to
assist in developing facts pertinent to claim that is well grounded);
*see also Grottveit*, 5 Vet.App. at 93. The duty to assist includes, in
an appropriate case, the duty to conduct a thorough and contemporaneous
medical examination. *See Green v. Derwinski*, 1 Vet.App. 121, 124
(1991) (fulfillment of duty to assist includes conducting thorough and
contemporaneous medical examination); 38 C.F.R. § 4.1 (1996) (accurate
and fully descriptive medical examinations are required for proper
application of rating schedule). In this case, because the medical
report from the VA disability examination did not contain an express
finding regarding the appellant\'s left knee, that report is not
sufficient to fulfill the Secretary\'s duty. *See Wisch*, 8 Vet.App. at
140 (duty to assist required examiner to address specifically the
alleged disorder; examiner\'s silence was insufficient). Thus, the BVA
must obtain an examination in which the examiner specifically opines as
to whether the appellant currently suffers from a left knee disorder
and, if so, the probability that such condition is related to service.
This medical examination must also consider the records of prior medical
examinations and treatment in order to assure a fully informed
examination. *See* 38 C.F.R. § 3.326 (1996); *Schroeder v. Brown*, 6
Vet.App. 220, 225 (1994); *Green*, 1 Vet.App. at 123.

The Court notes that the appellant has also raised issues on this appeal
regarding claims that were remanded by the BVA in its December 18, 1996,
decision. Pursuant to 38 U.S.C. §§ 7252(a) and 7266(a), in order for a
claimant to obtain review of a BVA decision by this Court, that decision
must be final and the person adversely affected by that decision must
file a Notice of Appeal (NOA) within 120 days after the date on which
the BVA decision was mailed. *See Horowitz v. Brown*, 5 Vet.App. 217,
225 (1993); 38 C.F.R. § 20.1100(b) (1996). Because a final decision has
not been issued by the BVA with respect to the claims that were
remanded, those claims cannot be reviewed by the Court on this appeal.
*See In re Quigley*, 1 Vet.App. 1 (1990).

The Court further notes that the appellant has filed several motions for
expedited consideration on the ground of financial hardship. In view of
the present opinion, the appellant\'s motions are denied as moot.

Upon consideration of the record on appeal and the parties\' pleadings
and based on the foregoing analysis, the December 18, 1996, BVA decision
that the appellant\'s claim was not well grounded is REVERSED and the
matter REMANDED for proceedings consistent with this opinion and in
accordance with section 302 of the Veterans\' Benefits Improvements Act
of 1994, Pub. L. No. 103-446 § 302, 108 Stat. 4645, 4658 (1994); *see
Allday*, 7 Vet.App. at 533-34. \"On remand, the appellant will be free
to submit additional evidence and argument\" on the remanded claim,
*Quarles v. Derwinski*, 3 Vet.App. 129, 141 (1992), including his
contentions regarding the law changes regarding Persian Gulf illness. A
final Board decision 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 NOA 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.