BVA Case 23-2829: Depression

However,after weighing the evidence,the Board found the veteran's contemporaneous statements at separation from service,which denied headaches and muscle pain,to be more credible than his more recent Case:23-2829 Page: 5 of 15 Filed:09/30/2024 statements that he experienced those issues in service.

In addressing whether a predecisional duty-to-assist error had occurred,the Board found that the most credible evidence was against a finding of persistent or recurrent symptoms of any of the claimed disabilities since service and that there wasn't any non-speculative evidence suggesting a relationship to service aside from the veteran's statements.

Ultimately,the Board found that the AOJ had not erred in determining that examinations were not warranted because the veteran is not shown to be competent to attribute any of these activities or inferred injuries as resulting in any of the claimed disabilities, id .

,and the Board found that it was precluded from considering evidence generated after the June 2021 rating decision when addressing the Secretary's duty to assist,R.

to establish that there [is]a nexus between a current disability and service.

As part of its duty to assist,VA must provide a claimant with a medical examination or opinion when there is (1)competent evidence of a current disability or persistent or recurrent symptoms of a disability;(2) evidence establishing that an event, injury,or disease occurred in service;and (3)an indication that the disability or persistent or recurrent symptoms of disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence of record to decide the claim.

Under the AMA,the duty to assist does not apply to the Board.

Instead,the Board reviews whether the AOJ,based on the evidence before it at the time,fulfilled the duty to assist before issuing the rating decision on appeal.