BVA Case 17-0002: Back

In May 1998,less than two months after the RO's initial denial of service connection for lung cancer,the RO sent the veteran a letter erroneously instructing him that he needed to submit new and material evidence to reopen that claim.

In August 2002,the Board denied service connection for lung cancer because it found that Mr.

Leonard appealed that decision to the Court and obtained a January 2012 remand based on the Board's failure to provide adequate reasons or bases for its adverse credibility finding, including its determination that the veteran's June 2002 hearing testimony was inconsistent with prior statements regarding the number of times he set foot in Vietnam .

Leonard again appealed to the Court,which,in May 2016,granted the parties'JMR stipulating that the Board had again failed to provide adequate reasons or bases for its negative credibility finding.

Specifically,the Board pointed to the exchanges from the hearing outlined above and concluded that the veteran was evasive or otherwise lacking in credibility because he showed little interest in identifying corroborating documents and was perceived as cutting off the inquiry with absolute statements of no possibility of locating such documents ;was terse and dismissive when asked about his efforts to obtain such documents; changed the discussion to a common-sense argument of geography when asked about submitting buddy statements;and was unable to remember where he allegedly landed in Vietnam on his return to the United States at the same time that he professed to have been very happy to be leaving Thailand and returning to the United States.

The Board explained that its adverse credibility finding was based on all information that witness testimony might provide through non-verbal communication not reflected in the record,such as body language,gestures,tone of voice,volume and tempo of speech,etc.

The Court reviews the Board's factual findings,including its service connection determination and the underlying determination as to in-service incurrence or aggravation of a disease or injury,under the clearly erroneous standard of review set forth in 38 U.

A factual finding 'is clearly erroneous when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.