Veteranclaims’s Blog

November 8, 2011

Single Judge Application, Examiner’s Report Not Supported by Adequate Rational, Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)

Filed under: Uncategorized — veteranclaims @ 4:59 pm

Excerpt from decision below:
“The December 2005 VA examination that concluded that Mr. Barnes’s current right wrist disability was not related to his in-service injury is thorough and adequate in all ways except one: the examiner’s conclusion is not supported by adequate rationale. The examiner’s statement that, because Mr. Barnes’s medical records show no treatment for his wrist condition prior to 1996, it is less likely than not that his current condition is related to his in-service injuries, is so conclusory in nature as to be of no use to an adjudicator. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990)
(holding that the Board’s statement must be adequate to enable a claimant to understand the precise basis for the Board’s decision and to facilitate review in this Court).
Because the VA physician failed to explain why the lack of treatment between service and 1996 rules out the possibility that Mr. Barnes’s current condition was caused by his in-service injury, the examination report is inadequate, and the Board erred in relying on it. See Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)(explaining that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two” (citing Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007))).
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Mr. Barnes argues that the December 2005 examination was also inadequate as to his claim for benefits for a low back disability. The Court disagrees. The examiner first stated that the absence of continuous treatment since service led to the conclusion that his current back disability is not related to his in-service back injury. As discussed above, alone this would render the examination inadequate. The examiner went further, however, and stated that the absence of a severe trauma to the back in service makes it unlikely that Mr. Barnes’s current disability is related to service.
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—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1945
STEVEN M. BARNES, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HAGEL, Judge: Steven M. Barnes appeals through counsel a May 25, 2010,
Board of Veterans’ Appeals (Board) decision that denied entitlement to VA disability benefits for a low back disability and a right wrist disability. Mr. Barnes’s Notice of Appeal was timely, and the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).
Neither party requested
oral argument or identified issues that they believe require a
precedential decision of the Court.
Because the Board relied on an inadequate VA medical examination and
failed to account for
favorable evidence, the Court will vacate that portion of the May 2010
Board decision concerning
a right wrist disability and remand the claim for further development and
readjudication consistent
with this decision. Because the Board’s determination that benefits for a
low back disability are not
warranted is not clearly erroneous and is supported by adequate reasons or
bases, the Court will
affirm that portion of the May 2010 Board decision.
I. FACTS
Mr. Barnes served on active duty in the U.S. Marine Corps from January
1978 to January
1981. Service medical records show that, in November 1980, Mr. Barnes
reported lower back pain

after playing basketball the prior evening. An examination showed no
swelling, deformities, or
discoloration. Mr. Barnes was diagnosed with a muscle strain and was told
to treat the pain with rest
and a “hot soak.” Record (R.) at 689. In December 1980, Mr. Barnes fell
while playing basketball
and was treated for a right wrist injuryNext Hit. The examiner noted swelling,
limited range of motion, and
crepitus.1
Mr. Barnes was referred to the emergency room to rule out a fracture.
Approximately
three weeks later, Mr. Barnes had a cast removed from his right wrist. The
medical record of
removal indicates that the initial Previous HitinjuryNext Hit was a sprain of the right wrist.
Mr. Barnes’s January 1981
separation examination contains no complaints of residual back or wrist
trouble, and his upper
extremities and spine were evaluated as normal.
In April 1996, Mr. Barnes sought VA disability benefits. He indicated that
he “rupture[d]”
his back and “broke” his right wrist on night maneuvers in October 1980. R.
at 679. VA obtained
medical records from the Texas Department of Criminal Justice that include
a May 1994 medical
history in which Mr. Barnes reported a broken wrist in 1980 during his
military service and a back
Previous HitinjuryNext Hit in 1991. A July 1994 physical examination showed “good squats,
bends, [and] stoops” with
negative straight leg raises. R. at 658. A June 1996 “Nursing Sick Call
Protocol” back pain
assessment shows that Mr. Barnes reported “trauma” to his back in 1981
during service, but that the
duration of his current complaint of lower back pain had only been two
weeks. R. at 454. Clinic
notes from August 1996 show repeated complaints of lower back pain.
In July 1996, a VA regional office denied Mr. Barnes’s claims for benefits
for right wrist and
low back disabilities as not well grounded.2
Mr. Barnes filed a Notice of Disagreement with that
decision and requested a hearing. He asserted that his treating VA
physician told him that his wrist
was fractured as a result of the fall during the basketball game and that
he may very well have also
fractured his coccyx in the fall. He reported that he has been “in
constant pain” since service as a
result of his injuries and that he had been unable to work for “a long
period of time.” R. at 636, 637.
Crepitus in this context is “the crackling sound produced by the rubbing
together of fragments of fractured
bone.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 429 (32d ed. 2012 [
hereinafter DORLAND’S].
At that time, VA could deny a veteran’s claim if he had not established
that his claim was well grounded. See
38 U.S.C. 5107(a) (1997) (“[A] person who submits a claim for benefits
under a law administered by the Secretary shall
have the burden of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is
well grounded.”). The requirement that a claim be well grounded was
eliminated with the enactment of the Veterans
Claims Assistance Act of 2000. See 38 U.S.C. § 5103A.
2
1
2

He ultimately appealed to the Board, asserting that his injuries, in
conjunction with his service-
connected residuals of a right index finger fracture, prohibited him from
passing employment
physicals and therefore interfered with his ability to obtain and maintain
employment.
In August 1997, Mr. Barnes testified at a hearing that he wore a cast on
his right wrist for
“about a month” during service and that he has had trouble, including pain
and “locking up,” since
the Previous HitinjuryNext Hit. R. at 560. With respect to his back, Mr. Barnes testified that
he had constant pain since
service. He also reported that he pulled a muscle in his back on the job
post-service and had to take
30 days off work.
In February 1998, the Board denied Mr. Barnes’s claims for benefits for a
right wrist sprain
and a low back disability.
In September 1998, Mr. Barnes underwent a VA hand examination. The
examiner recorded
Mr. Barnes’s medical history and expressly noted the fall in-service that
resulted in his right wrist
and hand beingcasted for threeweeks. The examiner notedMr.Barnes’s
complaints of trouble using
his right hand, constant pain, “early fatigability,” and poor grasping
ability. R. at 409. An
examination revealed limited flexion and poor grasping strength and
coordination, “possibly due to
disuse.” R. at 410. The examiner stated: “As a unit, his right hand is
severelycompromised in terms
of function. He has definite tenderness over the right [second] metacarpal
phalangeal joint. I did
not find any specific tenderness over the distal phalanx where he is said
to have a fracture.” Id. The
examiner concluded: “I think his right hand, and he is normally right[-]
handed, is definitely
functionallydisabled associated with his athletic injurywhich he sustained
while on active dutywith
the Marine Corps.” R. at 412. An x-ray taken in conjunction with the VA
examination showed
“Separated bony density on the medial corner of distal radius, old
fracture versus separate
ossification. Otherwise normal wrist joint.” R. at 413.
The next medical evidence contained in the record of proceedings and cited
in the parties’
briefs are VA medical records from throughout 2005 that show degenerative
disc disease of the
lower back, complaints of wrist pain and stiffness, and degenerative joint
disease of the wrist.
In December 2005, Mr. Barnes underwent a VA medical examination. With
respect to the
right wrist, the examiner noted that Mr. Barnes injured his wrist in
service in a fall during a
basketball game and reported “continuous problems” with the wrist since
that time. R. at 205. The
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examiner stated that Mr. Barnes reported having worn a cast on his wrist
for approximately eight
weeks. The examiner then noted that Mr. Barnes’s service medical records
reveal that he was in a
cast for approximately three weeks. The examiner also noted that, although
the service medical
records do not document a fracture of the wrist, no x-ray study appeared
in those records to confirm
that there was no fracture. An x-ray done in conjunction with the
examination showed
deformities [at the] second,third, fourth[,]andfifth
metacarpalheadspresumablyold
trauma.Moderatelyadvanced[degenerativejoint disease]firstandfifth[
metacarpal]
joints with narrowing and articular lipping.
Mild articular lipping
[metacarpophalangeal] joints secondthroughfifthand[interphalangeal]
jointsoffifth
(little) and second (index) fingers. Mild narrowing of wrist joint noted
suggesting
mild [degenerative joint disease].
R. at 208. The examiner opined that Mr. Barnes’s current degenerative
joint diseaseof the right wrist
was not at least as likely as not related to his in-service Previous HitinjuryNext Hit because
of “an absence of a pattern
of continuous chronic problems with the right wrist from discharge in
military service in 1981 until
1996.” Id.
With respect to Mr. Barnes’s back, the examiner stated that Mr. Barnes
reported that he
injured his back duringa fall in servicewhile playing basketball. The
examiner conducted a physical
examination and ordered x-ray and magnetic resonance imaging tests. The
magnetic resonance
imaging resulted in impressions of “[s]ignificant chronic degenerative
disc and end-plate changes
at L4-5 with first-degree anterolisthesis of L4 over L5,”3
a “[s]mall central disk protrusion at L5-S1,
and “[m]ild facet degenerative changes at L4-5 and L5-S1, but no spinal
stenosis.4
R. at 212. The
x-ray revealed “L4 spondylolysis with grade I spondylolisthesis and severe [
degenerative joint
disease] changes between L4-5 with narrowed disk.” Id. The examiner opined
that Mr. Barnes’s
degenerative disc disease of the lumbar spine was not at least as likely
as not related to his in-service
Previous HitinjuryNext Hit because “[t]here is a lack of evidence for a chronic problem from
discharge to militaryservice
Anterolisthesis is also called spondylolisthesis, which is “forward
displacement of one vertebra over another,
usually of the fifth lumbar over the body of the sacrum, or of the fourth
lumbar over the fifth, usually due to a
developmental defect.” DORLAND’S at 98, 1754.
Spinal stenosis is the “narrowing of the vertebral canal, nerve root
canals, or intervertebral foramina of the
lumbar spine caused by encroachment of bone upon the space.” DORLAND’S at
1770.
4
3
4

to 1996.” R. at 213. She also stated, “The lack of a major trauma during
militaryservice is evidence
that the current severe back condition is not related to the military
service.” Id.
In December 2005, the regional office issued a rating decision that
confirmed and continued
the denial of Mr. Barnes’s claims for benefits for “low back muscle strain”
and a sprain of the right
wrist. R. at 200. Mr. Barnes filed a Notice of Disagreement with that
decision and ultimately
appealed to the Board, which, in April 2009, reopened his claims but
denied them on the merits. Mr.
Barnes then appealed to this Court.
In November 2009, this Court granted the parties’ joint motion for remand.
In that motion,
the parties agreed that the Board provided inadequate reasons or bases for
its findings regarding Mr.
Barnes’s credibility. Specifically, the parties agreed: “Since the Board
failed to adequately address
whether [Mr. Barnes’s] allegations of continuity of symptomatology were
credible, remand is
required so that the Board can make a determination as to the credibility
and probative value of the
laystatements of record as theyrelate to continuityof symptomatology.” R.
at 35 (citations omitted).
The joint motion also addressed the December 2005 VA examiner’s opinions
regarding the
relationship between Mr. Barnes’s in-service injuries and his current
disabilities:
It is clear that these opinions were based on a lack of evidence
demonstrating
treatment for back or wrist pain post-service. As previously stated, the
Board must
discuss the credibility of [Mr. Barnes’s] statements regarding continuity
of
symptomatology. IftheBoardfinds[his] statements ofcontinuitycredible,
theBoard
should discuss whether or not a VA examination or medical opinion is
needed to
determine if his current back and wrist disability are related to his in-
service injuries.
R. at 38 (citations omitted).
In May 2010, the Board issued the decision on appeal. The Board explicitly
determined that
the December 2005 VA examination was adequate and that no new examination
was necessary.
With respect to Mr. Barnes’s claim for benefits for a low back disability,
the Board determined that
the “totality of the evidence of record” was against a finding that the
current disability was related
to the in-service Previous HitinjuryNext Hit. R. at 9. In reaching this conclusion, the Board
relied heavily on the
December 2005 VA examination report, the lack of evidence of treatment for
a back disability
between discharge and 1996, and a finding that Mr.Barnes’s statements
regardinghis condition were
5

not credible. Specifically, the Board concluded that Mr. Barnes’s various
statements were rife with
inconsistencies, leading to the conclusion that he was not a reliable
historian.
With respect to Mr. Barnes’s claim for benefits for a right wrist
disability, the Board again
found that the totality of the evidence was against the claim. Likewise,
the Board relied on the
December 2005 VA examination, the lack of evidence of treatment for wrist
pain between discharge
and 1996, and a finding that Mr. Barnes’s statements were inconsistent and,
therefore, not credible.
II. ANALYSIS
A. Right Wrist Disability
1. Secretary Concedes Remand
The Secretary concedes that vacatur and remand is warranted with respect
to Mr. Barnes’s
claim for benefits for a right wrist disability. In particular, the
Secretaryasserts that the Board failed
to provide adequate reasons or bases for its denial because it failed to
account for the September
1998 radiology report that revealed an old fracture of the right wrist.
The Secretary contends that
this evidence is relevant to the Board’s discussion of whether Mr.
Barnes’s statements that he
fractured his wrist in service are credible, given that the Board based
its finding of incredibility in
part on inconsistencies in Mr. Barnes’s statements regarding the extent of
his in-service Previous HitinjuryNext Hit when
compared to the service medical records. The Court agrees. Accordingly,
the Court will vacate that
part of the Board decision that denied entitlement to benefits for a right
wrist disability and remand
the matter for further development, as discussed below, and readjudication
consistent with this
decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
vacatur and remand may
be warranted where the Board has failed to provide an adequate statement
of reasons or bases for its
determinations).
2. December 2005 VA Examination
Mr. Barnes argues that the parties agreed, in the joint motion for remand
granted bythe Court
in November 2009, that the December 2005 VA examination was inadequate and
that the Board
therefore erred in relying on it instead of obtaining a new medical
examination. The Secretary
asserts that he did not concede the inadequacy of the examination in the
joint motion and argues
instead that the examination was adequate.
6

a. Joint Motion for Remand
In the joint motion for remand, the parties “agree[d] that remand is
necessary for the Board
to provide adequate reasons or bases as to the credibility of Appellant’s
lay statements and, if the
Board finds them credible, the Board should determine whether additional
VA examinations are
required.” R. at 33. In expanding on this agreement, the parties stated
that the Board relied on the
absence of medical evidence of treatment for Mr. Barnes’s right wrist and
low back conditions
between discharge and 1996, but that,
in making these determinations the Board did not make a finding as to the
credibility
of [Mr. Barnes’s] statements. Since the Board failed to adequately address
whether
[Mr. Barnes’s] allegations of continuity of symptomatology were credible,
remand
is required so that the Board can make a determination as to the
credibility and
probative value of the lay statements of record as they relate to
continuity of
symptomatology.
R. at 35 (citations omitted). This is the single concession of error
contained in the joint motion for
remand. The parties did go on to discuss the December 2005 VA examination,
noting that the Board
relied heavily on that examination and acknowledging that the examiner’s
opinions “were based on
a lack of evidence demonstrating treatment for back or wrist pain post-
service.” R. at 38. The
parties, however, did not then agree that the examination was inadequate;
rather, they agreed that,
if the Board determined on remand that Mr. Barnes’s statements regarding
continuity of symptoms
were credible, the Board should then consider whether a new medical
examination was warranted.
In other words, the parties reserved the determination of the adequacy of
the December 2005 VA
examination for the Board on remand, but only in the event that the Board
first determined that Mr.
Barnes’s statements regarding continuity were credible. Accordingly, Mr.
Barnes’s argument that
the parties agreed that the December 2005 VA examination was inadequate is
not supported by the
record.5
b. Adequacy of Examination
Nevertheless, the Board, as part of its statutory duty to assist, must
consider the adequacy of
the VA examination, regardless of the implication in the parties’ joint
motion for remand that such
The Court notes that it is the parties’ responsibility to “enumerate[ ]
clear and specific instructions to the
Board” in the drafting of a joint motion for remand. Forcier v. Nicholson,
19 Vet.App. 414, 426 (2006).
5
7

a finding is only necessary under particular circumstances. See 38 U.S.C.
§ 5103A(d). Here, the
Board expressly did so:
Given that the claims file was reviewed by the [December 2005 VA] examiner,
a
thorough historywas taken from [Mr. Barnes], a complete physical
examination was
accomplished, and the examination report sets forth detailed examination
findings
as well as a complete rational[e] for all opinions expressed in a manner
which allows
for informed appellate review under applicable VA laws and regulations,
the Board
finds the examination to be sufficient for appellate review and of high
probative
value.
R. at 9. Although the Court commends the Board for its attempt to make the
basis for its reliance
on the VA examination clear, in compliance with its statutoryduty to
provide an adequate statement
of reasons or bases under 38 U.S.C. § 7104(d)(1), the Court nevertheless
concludes that the Board’s
finding in this regard is clearly erroneous with respect to Mr. Barnes’s
claim for benefits for a right
wrist disability. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (holding
that the Court reviews
the Board’s determination that VA satisfied its duty to assist under the ”
clearly erroneous” standard
of review).
The December 2005 VA examination that concluded that Mr. Barnes’s current
right wrist
disability was not related to his in-service Previous HitinjuryNext Hit is thorough and
adequate in all ways except one:
the examiner’s conclusion is not supported by adequate rationale. The
examiner’s statement that,
because Mr. Barnes’s medical records show no treatment for his wrist
condition prior to 1996, it is
less likely than not that his current condition is related to his in-
service injuries, is so conclusory in
nature as to be of no use to an adjudicator. See Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990)
(holding that the Board’s statement must be adequate to enable a claimant
to understand the precise
basis for the Board’s decision and to facilitate review in this Court).
Becausethe VA physician failed
to explain why the lack of treatment between service and 1996 rules out
the possibility that Mr.
Barnes’s current condition was caused byhis in-service Previous HitinjuryNext Hit, the
examination report is inadequate,
and the Board erred in relying on it. See Nieves–Rodriguez v. Peake, 22
Vet.App. 295, 301 (2008)
(explaining that “a medical examination report must contain not only clear
conclusions with
supporting data, but also a reasoned medical explanation connecting the
two” (citing Stefl v.
Nicholson, 21 Vet.App. 120, 124 (2007))). Accordingly, on remand, the
Board must provide Mr.
Barnes a new medical examination to consider the question of whether his
current right wrist
8

condition is related to his in-service wrist Previous HitinjuryNext Hit. The resulting report
of that examination must
provide a clear conclusion supported byadequate rationale to permit the
Board to make an informed
decision about the nature and etiology of Mr. Barnes’s disability.
On remand, Mr. Barnes is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a
critical examination of the
justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.
App. 394, 397 (1991). In
addition, the Board shall proceed expeditiously, in accordance with 38 U.S.
C. § 7112 (expedited
treatment of remanded claims).
B. Low Back Disability
1. December 2005 VA Examination
Mr. Barnes argues that the December 2005 examination was also inadequate as to his claim for benefits for a low back disability. The Court disagrees. The examiner first stated that the absence of continuous treatment since service led to the conclusion that his current back disability is not related to his in-service back injury. As discussed above, alone this would render the examination inadequate. The examiner went further, however, and stated that the absence of a severe trauma to the back in service makes it unlikely that Mr. Barnes’s current disability is related to service. In other words, the examiner concluded that Mr. Barnes’s in-service back injury was not severe enough to cause his current condition. Accordingly, the Board’s
determination that the VA
examination was adequate for purposes of evaluating Mr. Barnes’s claim for
benefits for a low back
disability is not clearly erroneous. See Nolen, 14 Vet.App. at 184.
2. New Medical Examination
Mr. Barnes next contends that the Board provided inadequate reasons or
bases for its
determination that no additional medical examination was warranted.
This argument is
unpersuasive. As quoted above, the Board did, in fact, expressly state its
reasoning for relying on
the December 2005 VA examination. Simplybecause the Court has concluded
that the examination
was not adequate with respect to Mr. Barnes’s claim for benefits for a
right wrist disability does not
render the Board’s statement of reasons or bases for relying on the
examination inadequate with
respect to Mr. Barnes’s claim for benefits for a low back disability. See
38 U.S.C. § 7104(d)(1).
9

When there is alreadyan adequate medical examination of record, no new
examination is necessary.
See 38 U.S.C. § 5103A(d)(2)(C) (stating that, among other conditions, a
medical examination is
necessary when the record “does not contain sufficient medical evidence
for the Secretary to make
a decision on the claim”).
3. Credibility Determination
Mr. Barnes argues that the Board failed to provide adequate reasons or
bases for its
credibility determination. The Court disagrees.
Although, as Mr. Barnes argues, “the Board cannot determine that lay
evidence lacks
credibility merely because it is unaccompanied by contemporaneous medical
evidence,” Buchanan
v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), that is not the case
here. Here, the Board went
to great pains to explain its determination that Mr. Barnes’s statements
were not credible, and the
lack of contemporaneous medical evidence was merely one in a list of
reasons. See id. (stating that
the Board can weigh “the absence of contemporaneous medical evidence
against the lay evidence
of record”). The Board stated:
The Board acknowledges [Mr. Barnes’s] statements indicating that his
current low
back disability was due to the incident documented in service. However,
medical
evidenceisgenerallyrequiredto establishamedicaldiagnosis orto address
questions
of medical causation; lay assertions of medical status do not constitute
competent
medical evidence for these purposes. . . . Nevertheless, lay assertions
may serve to
supportaclaimforserviceconnection bysupportingtheoccurrenceoflay-
observable
events or the presence of disability or symptoms of disability subject to
lay
observation. . . .
When applying the case law discussed above, here, [Mr. Barnes] is
competent to say
that he experienced symptoms while in serviceandhis
assertionsconcerninginjuring
his low back in service are supported by the service treatment records.
Further, he
is also competent to report a continuity of symptoms since service.
However, any
current assertions in this regard by [Mr. Barnes] are inconsistent with
the other
evidence of record which showed no pertinent complaints over many years.
For
instance, the May 1994 medical report for the Department of Criminal
Justice
showed that the only back Previous HitinjuryNext Document [Mr. Barnes] mentioned was in 1991, 10
years after
his discharge from service, and a follow up examination was normal. If [Mr.
Barnes]
had been experiencing back pain since service, it would be reasonable to
assume that
he would have mentioned it at that time. Moreover, the June 1996 treatment
record
also noted that [Mr. Barnes] reported that his low back pain had only been
ongoing
for two weeks, which is completely inconsistent with any statements that
he had
10

experienced problems since service. Further, in his initial claim, [Mr.
Barnes]
asserted that he “ruptured” his back while on night maneuvers, which is
inconsistent
with theservicetreatment
recordsandsubsequentstatementsthatheexperiencedlow
back pain while playing basketball. He also reported to the December 2005
VA
examinerthathefellwhileplaying basketball; however, the originaltreatment
record
showed no documentation of a fall. In sum, these inconsistencies diminish [
Mr.
Barnes’s] credibility and clearly show that [he] is not a reliable
historian and, in turn,
cannot be considered credible.
Further, it is reasonable to expect that [Mr. Barnes] would have reported
ongoing
back problems since service if he was in fact experiencing them. His
failure in this
regard further diminishes his credibility regarding a continuity of
symptoms since
service. Accordingly, the Board finds that [Mr. Barnes] is not credible to
the extent
that he reports a continuity of symptoms since service.
R. at 10-11 (citations omitted).
In his brief, Mr. Barnes painstakingly attempts to refute each of the
Board’s reasons for
finding his statements not credible byexplaining awayeach of the purported
inconsistencies, but the
Court is not permitted to reweigh the evidence and may not reverse the
Board’s finding regarding
credibility simply because it might have reached a different conclusion in
the first instance. See
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) Mr. Barnes has not
demonstrated that the Board’s
finding is clearly erroneous, and the Court will not disturb the Board’s
finding in this regard.
In light of the above discussion, the Court will affirm that portion of
the Board’s decision that
denied entitlement to benefits for a low back disability.
III. CONCLUSION
Upon consideration of the foregoing, that portion of the May 25, 2010,
Board decision that
denied entitlement to benefits for a right wrist disability is VACATED and
the claim is
REMANDED for further development and readjudication consistent with this
decision. The
remainder of the May 2010 Board decision is AFFIRMED.
DATED: November 4, 2011
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Copies to:
Sandra W. Wischow, Esq.
VA General Counsel (027)
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