dissenting:
We dissent from the en banc decision of the Court. We believe that it is wrongly decided and that under 38 U.S.C. § 1154(b) the appellant should prevail as to his head-injury claim unless the Board of Veterans’ Appeals (BVA or Board) finds that there is “clear and convincing evidence” against that claim. We would thus vacate the BVA decision on that claim and remand the matter for application of that evidentiary standard under section 1154(b) and the holding of Arms v. West, 12 Vet.App. 188, 199 (1999).
Substantively, we disagree with the Court’s conclusion that Arms was incorrect in holding, expressly and unanimously on this point, that after a combat veteran has submitted a well-grounded claim that claim “may be denied under 38 U.S.C. § 1154(b) only if ‘clear and convincing evidence’ (more than a preponderance of the evidence) is produced in accordance with this opinion to rebut an award of service connection — including the veteran’s presumed-credible lay evidence.” Arms, 12 Vet.App. at 199. Nonetheless, it is preferable that the en banc Court has resolved that matter definitively rather than relying on the labored efforts of a panel opinion to pretend that Arms had not held what it clearly did and did after extensive analysis. Although the Court’s converted panel opinion goes to great lengths to attempt to demonstrate that Arms was not a binding precedent, the Court ignores the conclusion quoted from Arms above, under which the adjudication of Mr. Arms’ claim was directed to be carried out by the Board on remand under section 1154(b) “after a medical examination [was] carried out on remand.” Arms, swpra. Indeed, Arms set forth its holding in this regard at two other points as well. Initially, the Arms opinion held that “in the event of ... a well-grounded combat-related claim, the claimant prevails on the merits unless VA produces ‘clear and convincing evidence’ to the contrary.” Id. at 195-96. The opinion then goes on to reiterate:
“Under section 1154(b), then, evidence sufficient to well ground a claim as to a combat-incurred or combat-aggravated disease or injury does require — in contrast to the situation as to a regular, *24non-combat-related service-connection claim, see Robinette [v. Brown, 8 Vet.App. 69, 76 (1995) ] — the award of service connection unless service connection is rebutted by clear and convincing evidence under section 1154(b)’s second sentence.”
Arms, 12 Vet.App. at 197 (emphasis added).
Simply stated, the Arms holding ordered to be applied to the remand proceedings in that case was: If a combat veteran submits a claim that is well grounded as to all three Caluza elements1 (including medical evidence of nexus or the equivalent thereof), then the veteran prevails unless the Secretary finds that clear and convincing evidence rebuts any one of the three Caluza elements necessary to an award of service connection. This holding in Arms was admittedly an evolution of the Court’s caselaw up to that time. The Court signaled that quite explicitly by stating: “[W]e have undertaken a reexamination of the language and structure of that provision, as well as of our opinion in Caluza [v. Brown, 7 Vet.App. 498 (1995),] and the Federal Circuit’s Collette [v. Brown,] opinion, [82 F.3d 389 (Fed.Cir.1996),] and contrasted adjudication under section 1154(b) for a combat veteran with adjudications under generally applicable law.” Arms, 12 Vet.App. at 195.
It is important to keep in the forefront the statutory words that we are interpreting. They are:
In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, 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. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.
38 U.S.C. § 1154(b) (emphasis added). In Arms, the Court noted explicitly that all the prior cases (now cited by the 'Kessel majority) had been interpreting the first sentence of section 1154(b) in reading “service-connection” as relating to only in-service incurrence. The Arms opinion then goes on in part II.B.l. to analyze the three sentences of section 1154(b) and to conclude that “service-connection” in the second and third sentences refers to the award of service connection, not just the service incurrence that the first sentence deals with. Arms, 12 Vet.App. at 195-97.
Although Arms does not specifically make the following point, we believe that it is a vital one in deciding whether the Arms interpretation is correct. As both Arms and the Kessel majority point out, section 1154(b) uses “service-connection” at three places. In only one place, the third sentence, is it very clear what the statute is referring to, and there it is clear that it is *25talking about the ultimate award of benefits. The third sentence states: “The reasons for granting or denying service connection in each case shall be recorded in full.” 38 U.S.C. § 1154(b). The words “granting” or “denying” are used throughout title 38 (the law and regulation) in the context of the ultimate adjudication of a claim. Perhaps the clearest example is in 38 U.S.C. § 7104(d)(2) where the law requires that each BVA decision contain “an order granting appropriate relief or denying relief.” 38 U.S.C. § 7104(d)(2). Hence, it is “service-connection” in the first sentence that is the exception to the plain-meaning rule and to the rule applied by the Court that “identical terms within an Act bear the same meaning.” Ante at 15. We stand by the reading of that sentence set forth by the Court in Caluza, and today adopted, without dissent, by the en banc Court. We must point out that in Caluza, which was authored by Judge Steinberg, the Court reached its limited reading of section 1154(b)’s first sentence by way of legislative history, and did so (as does the majority here) as to a provision that is arguably not ambiguous. Caluza did so to avoid what the Court believed would be an “absurd result”2, although Caluza did not use that construct specifically.
In sum, Arms interprets section 1154(b) so as to provide an appreciable adjudicative benefit at the merits-adjudication stage for the combat veteran who has submitted a well-grounded claim for service connection. The “significant benefit” that Kessel now accords under section 1154(b) at the merits-adjudication stage is limited only to the incurrence element of Caluza and would apply only where the combat veteran’s lay testimony is “consistent with the circumstances, conditions, or hardships of such service”. We do not believe that Congress in utilizing the term “service-connection” in the second and third sentences intended to limit the totality of section 1154(b)’s application to one-third of the evidence necessary for such service connection to be awarded.
For the foregoing reasons, we respectfully dissent from the Court’s decision to overrule Arms regarding the reach of 38 U.S.C. § 1154(b).
. Under Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604, 1996 WL 56489 (Fed.Cir.1996) (table), for a service-connection claim to be well grounded a claimant must generally submit each of the following: (1) Medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service in-currence 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. See Elkins v. West, 12 Vet.App. 209, 213 (1999) (en banc) (citing Caluza, 7 Vet.App. at 506, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998) (mem.)).
. See Public Citizen v. Dep't of Justice, 491 U.S. 440, 454-55, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987); National R.R. Passenger Corp. v. Passengers Ass’n., 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974); United Transp. Union v. ICC, 871 F.2d 1114, 1118 (D.C.Cir.1989); West Penn Power Co. v. EPA, 860 F.2d 581, 587-88 (3d Cir.1988); In the matter of the Fee Agreement of Smith, 1 Vet.App. 492, 506 (1991) (Steinberg, J., concurring); see also Rowland v. California Men’s Colony, 506 U.S. 194, 200-01, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993).