[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 97-1023 [ACTIVITY]{.underline}:
RATING/AUTHORIZATION

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

[ISSUE(S)]{.underline}: Well-grounded claim

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
10/16/98

[FACTS]{.underline}: In August 1948, while on active duty, the veteran
was diagnosed with bacillary dysentery. In April 1965, 14 years after
separation from military service, he was diagnosed with costal
chondritis at a VAMC facility. Radiological reports indicated moderate
degenerative changes of the cervical spine, most marked at the C6-7
level. Also in April 1965, service connection (SC) was granted for
dysentery evaluated as 0% disabling. VA outpatient treatment records
from November to August 1992 showed treatment for the veteran's back
complaints, which were not linked to bacillary dysentery. However, a
hospital report dated October 1992, was negative for a link to bacillary
dysentery, but indicated that the veteran had HLA-B27 positive
ankylosing spondylitis. In testimony before the Board of Veterans'
Appeals (BVA or the Board), the veteran theorized about a link between
the bacillary dysentery that he had acquired in service, and his current
ankylosing spondylitis. His contentions were admittedly based on his own
diagnosis, and he claimed to have learned of the link from reading
medical texts. 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. In an October 1994 VA examination, the physician said that,
even though the veteran's previous gastrointestinal infections could
lead to Reiter's Syndrome, he was unaware of such an infection leading
to ankylosing spondylitis. 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. In December
1994, a second VA physician also discredited the veteran's contentions
that the texts established a link between the bacillary dysentery and
the ankylosing spondylitis. Again in December 1996, a third VA physician
denied a link between the veteran's in-service bacillary dysentery and
his current ankylosing spondylitis. He further stated that simply having
the HLA-B27 gene does not prove that the two conditions are linked. In
May 1997, BVA determined that the claim was not well grounded.

[ANALYSIS]{.underline}: 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 38 U.S.C. § 5107(a). Secondary service connection claims must
also be well grounded. Because the veteran claimed that his ankylosing
spondylitis was caused by his SC bacillary dysentery, he must show SC
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 SC disease. 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. Although the Court had previously found that 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 SC, the Court had not pronounced such treatise evidence as
insufficient to *well ground* a claim.

In *Sacks v. West*, 11 Vet.App. 314 (1998), the 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. 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." In this case, the Court stated that the veteran
had 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 attempted to show that, because of his genetic
predisposition, he had a heightened risk of developing ankylosing
spondylitis and he had also submitted medical evidence that discussed
the plausibility of such a link. The evidence in this case did not
simply provide speculative generic statements not relevant to the
veteran's claim, as in cases previously before the Court. Instead, this
treatise evidence "standing alone, discussed generic relationships with
a degree of certainty such that, under the facts of this case, there was
at least plausible causality based upon objective facts rather than on
an unsubstantiated lay medical opinion." Because the veteran had offered
evidence that was deemed plausible, the initial burden of 38 U.S.C. §
5107(a) that a claim be well grounded had been satisfied. Thus, the case
was remanded for a decision on the merits.

[IMPACT ON DECISIONMAKERS]{.underline}: Prior to this case,
decisionmakers would not have accepted any medical article or treatise
as sufficient evidence to show a plausible link between an in-service
condition and a current condition in order to determine that the claim
was well-grounded. Rather, VA would have required an actual medical
nexus opinion before determining that there was a plausible basis for
connecting a current disorder to an event in service. Now, as part of
the adjudicative process, the proffered medical article or treatise will
have to be analyzed to see if, standing alone, it discusses generic
relationships with a degree of certainty that there is at least a
plausible causality (nexus) based upon the facts in that case. If the
article or treatise will not stand alone, the decisionmaker must give
the reasons and bases for that determination. If a favorable finding is
made, then the decisionmaker, in a case where the requirements for a
well-grounded claim are met, will determine that a well-grounded claim
has been submitted and proceed to fulfill VA's duty to assist
requirements before adjudicating the claim on its merits.

[RECOMMENDED VBA ACTION(S)]{.underline}: Provide a copy of the full text
of this decision and assessment to all stations for their use in
training sessions on well-grounded claims.

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

[Approved]{.underline}?

\_X \_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[6/1/99]{.underline}

Yes No Robert J. Epley Date