CAVC Case 98-821: Back

In the February 1998 BVA decision here on appeal, the Board denied as not well grounded the veteran's left-hip secondary-service-connection claim because he "ha[d] failed to show .

§ 1131) to be well grounded a claimant must submit evidence of each of the following: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability.

The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded.

The only evidence of such a nexus is the veteran's own belief.

However, the veteran is not competent to provide an opinion as to medical nexus.

Finally, even if the Board had relied upon the medical report in its denial of service connection, the veteran would still be required to have submitted medical nexus evidence in order to present a well-grounded claim because "the discrediting of evidence contrary to the granting of service connection does not [itself] serve as evidence that supports service connection.

In Thurber, the Court held that "before the BVA relies, in rendering a decision on a claim, on any evidence developed or obtained by it subsequent to the issuance of the most recent SOC or SSOC with respect to such claim, the BVA must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it.

3d at __, 1999 WL 378523, at *6 (holding in civil-service-employee-discharge case that if ex parte communication by agency official to deciding agency official introduced new and material information, "then a due process violation has occurred" because of the employee's essential right of notice and opportunity to respond, and "such a violation is not subject to the harmless error test").