BVA Case 09-2648: Depression

SCHOELEN, Judge :The appellant, Lawrence Mountain ,appeals through counsel an April 2,2009,Board of Veterans'Appeals (Board)decision that (1)found that there exists no new and material evidence sufficient to reopen claims of service connection for a low back disability,hearing loss,and a right knee disability;(2) denied the appellant service connection for osteoarthritis of the hips,disability of the left hand,flat feet, depression,and a psychiatric disability;and (3)remanded the appellant's claims of entitlement to a disability rating in excess of 10%for residuals of a left knee meniscectomy and entitlement to a total temporary evaluation under 38 C.

Also regarding these three claims,the appellant argues that the Board failed to adequately explain why the appellant was not provided with a VA medical examination.

The appellant next argues that the Board failed to provide an adequate statement of reasons or bases in support of its decision that no new and material evidence had been submitted sufficient to reopen his claims for a low back disorder,hearing loss,and a right knee disability.

Service Connection Establishing service connection generally requires medical or,in certain circumstances,lay evidence of (1)a current disability;(2) incurrence or aggravation of a disease or injury in service; and (3)a nexus between the claimed in-service injury or disease and the current disability.

A finding of service connection is a finding of fact that the Court reviews under the clearly erroneous standard of review.

To comply with this requirement,the Board must analyze the credibility and probative value of the evidence,account for the evidence that it finds persuasive or unpersuasive,and provide the reasons for its rejection of any material evidence favorable to the claimant.

Osteoarthritis of the Hips The Board found that the first mention in the record of a disorder in the appellant's hips is dated September 1994,when the appellant was diagnosed with arthritis.

The Board noted that the appellant made lay statements concerning his disorder,but concluded that he is not competent to render a probative opinion on a medical matter,such as whether he has a current disability related to service.