           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 arguments regarding 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
       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.




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