UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 96-1756

SAMMIE G. NOLEN, APPELLANT,

V.

HERSHEL W. GOBER,

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY and GREENE, Judges

ORDER

On April 28, 1999, this Court affirmed the November 20, 1996, decision of the Board of

Veterans' Appeals (BVA or Board) denying service connection for asbestosis. Although the regional

office (RO) and the Board found the claim well grounded, this Court held on appeal that the

appellant had failed to submit a well-grounded claim. Accordingly, the Court declined to address

the appellant's argumentsregarding the merits of the claim. On appeal, the Federal Circuit held that:

[O]nce the [Department of Veterans Affairs (DVA)] determines that the claim is well

grounded, its duty to assist is established and the claimant is launched into the

system. At this point the operation of the well-grounded claim requirement is

exhausted and need not be further considered.

Thus, in a case . . . , in which a claim has been deemed well grounded but

subsequently denied on the merits by the RO and the Board, the Court of Appeals for

Veterans Claims would have no reason to reconsider the issue of well groundedness.

. . . .

If . . . the RO and Board deem the claim well grounded and the DVA undertakes to

assist the veteran according to 38 U.S.C. § 5107(a), and the veteran subsequently

raises the issue of whether the DVA properly fulfilled this duty, then the Court of

Appeals for Veterans Claims must address that issue on the merits. This is true

regardless of the Court of Appeals for Veterans Claims's [sic] assessment as to

whether the claim was well grounded to begin with; the RO and Board have already

made that determination, and in doing so have committed the DVA to providing the

necessary assistance. By finding the claim well grounded, the DVA has waived any

further challenge on the issue and has obligated itself to provide assistance to the
2

veteran. C.f. 38 U.S.C. § 7252 (providing that the DVA may not seek review of

Board decisions before the Court of Appeals for Veterans Claims).

Slip op. at 6-7 (emphasis added).

On appeal to this Court, the appellant had argued that VA did not properly fulfill its duty to

assist pursuant to 38 U.S.C. § 5107. This issue was not, however, presented to the Board. As the

determination as to whether the duty to assist was complied with in this matter will involve making

factual determinations, the Court finds that it is appropriate to remand the appellant's claim for the

Board to consider the appellant's duty to assist argument in the first instance. See Maggitt v. West,

202 F.3d 1370, 1378 (Fed. Cir. 2000); cf. Ledford v. West, 136 F.3d 776, 781-82 (Fed. Cir. 1998)

(concluding that declining to exercise jurisdiction over a claim based upon the doctrine of

administrative exhaustion was warranted under the specific facts of that case); see also Hensley v.

West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (While the Court may reverse an incorrect judgment of

law which is based upon proper factual findings, "it should not simply [make] factual findings on

its own.").

In addition, the Court notes that the Board found that the appellant's testimony regarding his

in-service exposure to asbestos was inherently incredible. However, pursuant to 38 U.S.C.

§ 1154(b):

In the case of any veteran who engaged in combat with the enemy . . . the

Secretary shall accept as sufficient proof of service connection of any disease or

injury alleged to have been incurred in or aggravated by such service satisfactory lay

or other evidence of service incurrence or aggravation of such injury or disease, if

consistent with the circumstances, conditions, or hardships of such service,

notwithstanding the fact that there is no official record of such incurrence or

aggravation in such service, and, to that end, shall resolve every reasonable doubt in

favor of the veteran.

The presumption afforded by § 1154(b) may be rebutted only by "clear and convincing evidence to

the contrary." 38 U.S.C. § 1154(b). Although the appellant is a combat veteran, the Board failed

to address the potential applicability of 38 U.S.C. § 1154(b).

Upon consideration of the foregoing, it is

ORDERED that the November 20, 1996, decision of the Board of Veterans' Appeals is

VACATED and the matter is REMANDED for readjudication consistent with this order.

DATED: November 15, 2000 PER CURIAM.