BVA Case 04-0185: Back

McLendon argues that the Board erred in its evaluation of the evidence and that the Secretary failed to provide him with a VA medical examination pursuant to 38 U.

The Board concluded that a VA medical 3 examination was not warranted because the evidence of record was sufficient to decide the claim.

Ultimately, the Board found that the in-service injury had occurred but that it had "resolved without leaving chronic residual disability," and it denied Mr.

In addition, the Board found compliance with the statutory and regulatory requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.

Medical Examination Requirement In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.

465, 469 (1994) (holding that "competency" "is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [weight and credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"), or of factual competency, which is reviewed for clear error, see Sanders v.

525, 529 (1996) (holding that mental "competency" is a factual determination that the Court reviews under the "clearly erroneous" standard of review).

Moreover, a Board finding that the evidence preponderates for or against the presence of a current disability is a finding of fact, subject to the "clearly erroneous" standard of review, see Washington v.