Daniel C. Summers,claimant-Appellant v. Hershel W. Gober, Acting Secretary of Veterans Affairs

MAYER, Chief Judge,

dissenting.

In my view, the board improperly disregarded the lay evidence Summers presented to demonstrate that his claim was well-grounded. Therefore, the determination by the Court of Appeals for Veterans Claims that the board’s failure to consider 38 C.F.R. § 3.303(d) was harmless is error.

“Congress has passed statutes and the agency regulations to assist veterans in establishing facts sufficient to support well-grounded claims and to give them every benefit that can be supported in law.” Collaro v. West, 136 F.3d 1304, 1308 (Fed.Cir.1998). Given the manifestly pro-claimant character of the veterans’ benefit scheme, lay evidence is always relevant to the determination of whether a claim is well-grounded, especially where, as here, a veteran was treated in combat for his condition. See 38 U.S.C. § 1154(b) (1994).

When Summers sought to rely on lay evidence showing that he had been treated for hepatitis in the field, a fact which is undisputed, the board had an obligation to consider that evidence in determining whether his claim was well-grounded. Moreover, the absence of specific medical evidence that Summers suffered from the same type of hepatitis in-service, for which *1298he was later diagnosed, is not dispositive of his claim because the technology to identify hepatitis C did not exist until the late 1980s, almost 20 years after his separation physical. See Hearing on H.R. 1020 Before the Subcomm. on Benefits of the House Comm. of Veteran’s Affairs, 106th Cong. (2000) (statement of Nora E. Egan, Deputy Under Secretary for Management, DVA).

Had the board not deprived Summers of the opportunity to make the threshold showing that his claim was well-grounded, he would no doubt have qualified for the presumption of service-connection found in 38 C.F.R. § 3.303(d) (1999), which alleviates the evidentiary burden on a combat veteran.