THIS VERSION OF THE OPINION INC LUDES T HE AUGU ST 9, 2012, E RRATA
UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 10-3402

B E R N A D I N E A C E V E D O , A P P E L L A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(Argued Apr il 25, 2012 Decided July 9, 2012)

Robert V. Chisholm , with whom Zachary M. Stolz , Myung Kim Ree der , and Alexandra O. Lio wer e on the br iefs, all of Providenc e, Rhode I sland, for the appellant. Bryan W

. Thompson , with whom W ill A. Gunn , Gene ral Counsel; R. Randa l l C a mp b ell , Assistant G ener al Counsel; a nd Joan E. Moriarty , Deputy Assistant G ener al Counsel, wer e on the brief, a ll of Washington, D.C., for the appellee

. Be fore KASOL D, Chief Judge , and MOORMAN a nd L ANCE, Judges

. L ANCE, Judge : The appellant, Be rnadine Ace vedo, appea ls throug h counsel that portion of

a September 9, 2010, decision of the Boa rd of Veter ans' Appea ls ( Boa rd) that denied her claim for entitlement to service connec tion for an acquir ed psy chiatric disorder, to include post-traumatic
stress disorder (PTSD). The appellant does not pr esent any argument conce rning the denial of her claims for entitle m en t to service connec tion for sickle cell trait; asbestosis; a rig ht shoulder disability ; and arthritis of the arms, shoulder, ankles, and neck. Acc ording ly , the Court deems those claims abandone d and will n o t re v i ew t h em. See Ford v. Gober , 10 Vet.App. 531, 535 (1997); Buck linger v. Brown , 5 Vet.App. 435, 436 (1993). The parties e ach f iled briefs, a

nd the appe llant filed a reply brief. There afte r, the Court hear d oral argum en t s
. Fo r the rea sons that follow, that portion of the B oard' s September 9, 2010, de cision that is on appeal will be a ffirme d.I. F ACTS

The appellant serve d on active duty in the U.S. Army from October 1978 to September 1988, when she was discharg ed for misconduct afte r testing positive for marijuana use. Record (R.) at 614, 1339-77. Be fore discharg e from service , the appellant was trea ted for a suicide attempt afte r "taking

a handful of Atara x tablets." R. at 1901-02. Her service medical re co rds (SMRs) indicate that, following the suicide attempt, s h e wa s d i agnosed with adjustment disorder associate d with her positive ur inaly sis, the stress of being a "snitch" for the Criminal Investig ation Command, a nd her impending disc harg e. R. at 1901-02; see also R. at 1812-13, 1816. Over a deca de later, in September 2000, the appellant filed an informal claim for service

connec tion for a psy chiatric d isorder. R. at 1273. In her informal claim, and in later- submitt ed
persona l sta tements and medical examinations, the appellant asser ted that during basic training , in 1978, she was sexually hara ssed by three drill serg eants and that, when she repor ted the hara ssment
to the senior drill serg eant, the senior drill serg eant seduce d her into having a sexual rela tionship with him in exchang e for protec tion from the other drill serg eants. See , e.g. , R. at 118-20, 917-25, 1262-64, 1273. The appellant asser ted that, afte r post-service brain surg ery in 1996, her memories of sexual hara ssment and assault returne d and, as a result, she suffe rs from depre ssion, nightmar es, flashbac ks, and intrusive thoug hts. See , e.g. , R. at 1235. The rec ord shows that the appellant rec eived a VA mental disorders examination in Fe bruar y 2001 in which the examiner diag nosed her with major depre s sive disorder and PTSD but did not provide a nexus opinion. R. at 1235-39. The rec ord also contains a J une 2008 letter from the appellant' s VA psy cholog ist in which the psy cholog ist diag nosed the appellant with PTSD as a result of sexual hara ssment and assault by her basic training drill serg eants. R. at 151-52. The
psy cholog ist stated that the appellant " indicates a history of sy mptoms consistent with a diag nosis of [ PTSD] and presents with those sy mptoms at t his time" but did not describe the sy mptoms. R

. at 152. The a

ppellant re ceive d a sec ond VA mental disorde rs ex amination in November 2008. R.
at 115-26. The examiner noted that he spent four hours revie wing the appellant' s entire eig ht-inch

c la im s f il e , o n e h o u

r revie wing the elec tronic medical rec ords, and one-a nd-a- half hours in

te r v ie w in g the appellant. R. at 116. The examiner rec orded the appellant' s asser tions that her curr ent

2psy chiatric condition did not develop until afte r her 1996 surg ery , her descr iption of her nightmar es

as involving ha

nd-to-hand combat wit h unknown people that did not corre spond to any in-servic e incident, and the lack of any ref ere nce to nightmar es involving t h e s ex ual assaults. R. at 122-23. The examiner conclude d that a diag nosis of PTS D was not war rante d beca

use the appellant' s nightmar es, as descr ibed t o him, wer e not "the matically rela ted t o an y perc eived traumatic sex ual rela tionship" and did " not even include the alleg ed per petra tor." R. at 125. The 2008 VA examiner diag nosed the appellant with major depre ssive disorder. R. at 124. I n a J anuar

y 2009 addendum, the examiner clar ified that it was "not at all likely that [t he appellant' s] major depre ssi o n t h at s t ar ted many y ear s afte r she was in the milit ary service is causa lly or specific ally

rela ted to events that ha

ppened to he r during . . . milit ary service ." R. a t 114. The Boar d conclude d that the 2008 VA ex amination repor t was the most probative of the examinations in the rec ord beca use that examiner was the o n l y o n e wh o indicated that he had conducte d a thoroug h revie w of the appellant' s claims file and was a board- cer tified psy chiatrist. R.
at 27, 29. The Boa

rd also acknow ledg ed that the appellant, a nurse, had some medical training , but conclude d that the 2008 VA examiner had more expertis e re l ev ant to diag nosing the appellant' s condition and opining as to its etiology

. R. at 29. The Boa rd deter mined, based on the 2008 VA examination and 2009 addendum (here inafter "2008 VA ex amination") , that the appe llant did not have a current diagnosis of PTSD and that the a ppellant' s diag nosed depr ession was not related to service . R. at 27, 29. This appea l followed.

II. ARG UMENTS The appellant argues that t he Boa rd should have applied 38 C.F.R. § 3.304(f) (3), which lessens the evidentiar

y burden on claimants who alleg e entitlement to service connec tion for PTSD based on a stressor "r elated to the veter an' s fea r of hostile military or terror ist a ctivity ," rathe r than § 3.304(f) (5), to her claim for PTSD as a result of milit ary sexual trauma (MST). Appellant' s (App.) Br ief (B r.) at 8-13. The appellant also argues that the 2008 VA examination wa s inadequa te, that 1

A t or al argum ent, counsel for the ap pellant stated that the app ellant w as abando nin g any claim to benefits 1 through the app lication of § 3. 30 4( f)(5)

. 3the Boa

rd failed to develop a claim for service connec tion for her diag nosed depre ssion, and that the Boa rd provided a

n inadequate statement of r easons or bases to support its analy sis. Id. at 15-20. T h e Secre tary counter s that the appellant' s arg ument contra dicts the plain lang uag e an d
reg ulatory history of §§ 3.304(f) (3) and (5) an d t h at t h e Boa rd applied the corr ect standard to the appellant' s claim. Secre tary ' s (Sec' y ) Br

. at 7-12. The Secret ar y al s o asser ts that the 2008 VA examination was adequa

te for rating purposes and that the Boa rd' s statement of rea sons or bases was adequate, and he reque sts that the Court affirm the B oard' s September 9, 2010, de cision.

III. ANALYSIS A. Application of 38 C.F .R. § 3.304(f)( 3) to PTSD Cl aims Ba sed on MST The require ments for es t ab l i s h ing service connec tion for PTSD are outlined in 38 C.F.R. § 3.304(f)

. I n g ener al, establishing service connec tion for PTSD require s (1) evidenc e of a curr ent medical diag nosis of PTSD, (2) cre dible supporting evidenc e that the claimed in-servic e stressor
actua lly occur

red, and (3) medical evidenc e that establishes a nexus betwee n the claimed in-servic e stressor and the curr ent sy mp t o m at o l og y of the PTSD. Id

. The reg ulation's subsections identify when "the veter an' s lay testimony alone may establish the occur renc e of the claimed in-servic e

s t re s s o r" o r when additional corr oborating evidenc e is require d. Id

. Prior to J uly 13, 2010, a veter an' s lay testimony alone was potentially sufficie nt to establish a claimed stressor only when the
veter an was diag n osed with PTSD in service , alleg ed a stressor rela ted to and consistent with documented prisoner- of-wa r (POW) experience , or alleg ed a stressor rela ted to and consistent with documented e ng ag ement in combat. Id

. I n 2009 VA proposed an amendment to this regulation that would "r educe the burden of showing the occ urre nce of an in-service stressor i f t he claimed stressor is re lated to fe ar of hostile milit ary or terror ist activity , and is consistent with the place s, ty pes, and circ umstances of the
veter an' s service ." Stressor Deter minations for Postt rauma tic Stress Disorder , 74 Fe d. Reg

. 42,617, 42,618 (Aug

. 24, 2009) (propose d rule); see Nat' l Org. of Veterans' Advoc ates v. Sec'y of Veterans Affairs , 669 F.3d 1340, 1344 (F ed. Cir. 2012)

. The proposed amendment was intende d to addre ss finding s from the National Aca demies' I nstitut e of Medicine (I OM), which observe d that allowing only those service members who eng ag ed in traditional comba t to rely on their own lay testimony

4was inconsistent with the incre ase in hostile milit ary activities that deploy ed non-comba t personne l

encounte r as milit ary conflicts have evolved awa y fr o m d efine d front lines toward insurg ent and
g uerilla war far e. 74 Fe d. Reg

. at 42,618 (citing I N S T

. O F M E D

. O F TH E N A T ' L A C A D ., G U L F W A R A ND H E A L TH , P H Y S I O L O G I C , P S Y C H O L O G I C , A N D P S Y C H O S O C I A L E F F E C TS O F D E P L O Y M E N T -R E L A TE D S TR E S S , 2 (2 0 0 8 )). The I OM identified sever al potentially "pote nt stressors" that any milit ary personne l deploy ed to a war zone might fac e, reg ardle ss of combat status, such as "' constant vigilanc e ag ainst unexpected attack, the absenc e of a define d front line, the difficulty of distinguishing en em y combatants from civilians, [and] the ubiquity of improvised explos ive device s.' " Id

. The revision to 38 C.F.R. § 3.304(f) , eff ective J uly 13, 2010, included a n ew s u bsection (f) (3), whic h states: I f a stressor claimed by a veter an is rela ted to the veter an' s fea r of hostile milit ary or terror ist activity and a VA psy chiatrist or psy cholog ist, or a psy chiatri s t or psy cholog ist with whom VA has contra cted, confirms that the claime d s t re ssor is adequate to support a diag nosis of posttraumatic stress disorder and that the veter an' s sy mptoms are rela ted to the claimed stressor, in the absenc e of clea r and convincing evidenc e to the contra

ry , and pro v i d ed t h e claimed stressor is consistent with the place s, ty pes, and circ umstances of the veter an' s service , the veter an' s lay testimony alone may establish the occur renc e of the claimed in-servic e stressor. For purposes of this pa rag raph, "f

ear of hostile military or terror ist a ctivity " means that a vete ran experience d, witnessed, or was confr onted wi t h an event or circ umstance that involved actua l or threa tened death or serious i n j u ry , or a threa t to the phy sical in t egr i t y o f the veter an or others, such as from an actua l or potential improvised explos ive device ; vehicle- imbedded explos ive device ; incoming artillery , rocke t, or mortar fire; g rena de; small arms fire, including suspected sniper fire; or attack upon friendly milit ary airc raf

t, and the veter an' s res p o n s e t o the event or circ umstance i n v olved a psy cholog ical or psy cho-phy siologica l state of fea r, helplessness, or horr or. As part of the revision proc es s , t h e s ubsection addre ssing persona l assaults, including MST, was renumbe red a s (f)( 5), which state s: I f a posttraumatic stress disorder claim is based o n in-servic e persona l assault, evidenc e fr om sources othe r than the ve tera n' s service rec ords m ay corr oborate the veter an' s acc ount of t he st ressor incident. Ex amples o f s u ch ev idence include, but
are not limit ed to: rec ords from law enfor ceme nt authorities, rape crisis cente rs, mental health counseling cente rs, hospitals, or phy sicians; preg nancy tests or tests for sexual l y t ransmit ted diseases; and statements from family members, roommates,

5fellow service members, or cler g y
. Evidence of behavior chang es following the

claimed assault is one ty

pe of rele vant evidenc e that may be found in these source s. Ex amples of behavior chang es that may constitute cre dible evidenc e of the stressor include, but are not limit ed to: a reque st for a transfe r to ano t h er milit ary duty assig nment; deter ioration in work perf orman ce ; substance abuse; episodes of depre ssion, panic attacks, o r an x i ety without an identifiable cause ; or unexplained economic or social behavior chang es. VA wi l l n o t deny a post-traumatic stress disorder claim that is based on in-servic e persona l a ssault without first advising the claimant th at evidenc e from source s other than the veter an' s service rec ords or evidenc e of behavior chang es may constitute cre dib l e s u p p o rting evidenc e of the stressor a nd allowing him or her the opportuni ty to furnish this ty

pe of e vidence or advise VA of potential source s of such evidenc e. VA may submit any evidenc e that it rec eives to an appropr iate medical or mental health profe ssional for an opinion as to whether

it indicates that a pe rsonal assa ult occurr ed. Thus, if VA evaluates a veter an' s claimed stressor under subsection (f) (3), her lay testimony alone may be sufficie nt to establish the occur renc e of that stressor if the stressor is consistent with her service and a VA psy chiatrist or psy cholog ist opines that the stressor is adequate to sup p o rt a diag nosis of PTSD. 38 C.F.R. § 3.304(f) (3) (2012). Howeve r, if VA evalua tes a veter an' s claimed
stressor under subsection (f) (5), her lay testimony must be corr oborate d by other eviden ce to establish the occurre nce of th e s t re s s o r. § 3.304(f) (5); see Menegassi v. Shinseki , 638 F.3d 1379, 1382 (F ed. Cir. 2011). The Court revie ws VA' s interpre tation of statutes and regulations de n o v o
. S ee Lane v. Principi , 339 F.3d 1331, 1339 (F ed. Cir. 2003) (" [I ]nt erpr et at ion of a statute or regulation is a question of law

. . . .") ; Butts v. Brown , 5 Vet.App. 532, 539 (1993) (en banc) (stating that the Court revie ws "que stions of law de novo without any defe renc e to the [Board' s] conc l u s i ons of law" ).

"' Stat u t o ry interpre tation beg ins with the lang uag e of the statute, the plain meaning of which we derive from it s text and its structure.' " Myore v. Nicholson , 489 F.3d 1207, 1211 (F ed. C ir. 2007) (quoting McEnte e v. M

erit Sys. Prot. Bd. , 404 F.3d 1320, 1328 (Fe d. Cir. 2005)). Statutory terms

are interpre ted "' in their context and with a view to their place in the overa ll sta t utory scheme .' " Tyler v. C ain , 533 U.S. 656, 662 (2001) (quoting Davis v. M ich. Dep't of Treasury , 489 U.S. 803, 809 (1989))

.

61. The Plain Meaningof Subsection (f) (3)

The appellant contends that her in-servic e stressors are "r elated to her fea r of hostile milit ary activity " be cause (f) (3) de fines that phra se to mean " that a vete ran e x perie nced, w itnessed, or wa s confr onted with an event or circ umstance that involved actua l or threa tened death or serious injury ,
or a threa t to the phy sical integ rity of the veter an or others

. . . ." App. Br

. at 11 (quoting § 3.304(f) (3))

. She argues that the sexual hara ssment and assault she experience d in service satisfy this definition. Howeve r, this interpre tation of § 3

. 304(f) (3) contra dicts the plain meaning of §§ 3.304(f) (3) a

nd (5). First, § 3.304(f) (3) define s "f ear of hostile milit ary or terror ist activity " as deriving from "a n event or circ umstances

. . . such as
. . . an actua l or potential im p rovised explos ive device ; vehicle- imbedded explos ive device ; incoming artillery , rocke t, or mortar fire; g rena de; small arms fire, including suspected sniper fire; or at t ac k u p o n friendly milit ary airc raf t." Whil e it is well established that "suc h as" indicates that the subsequent examples are not an exhaustive list, the Court finds it signific ant that the examples provided all involve actions orig inating from individuals who commit hostile milit ary or terror ist acts toward the U.S. milit ary , not nefa rious, or even criminal, acts of one service member direc ted at another service member. See Mauerhan v. Principi , 16 Vet.App. 436, 442 (2002). I n addition, the list of examples provides some context in which to understand t h e plain meaning of the phrase "hostile milit ary or terror ist activity ." See Tyler , supra
. Her e, althoug h ever y assault, reg ardle ss of the participa nts or the context, could be labeled "hostile," the list of examples clea rly indicates that the term car ries a more limit ed definition here

. See , e.g., 38 C.F.R. § 3.1(y )(5) (def ining "hostile forc e" as an entity "w hose actions are taken to f urther or enhanc e anti-Amer ican milit ary , political or

economic obje ctives or view s, or to attempt to e mbarra ss the United States")

. Ho s tile criminal actions, like the sexual assault asser ted here , of U.S. milit ary personn el direc ted ag ainst other U.S. milit ary personne l are contemplated under the in-servic e persona l assault provisions of subsection (f) (5). Thus, the Court discerns no merit in the argument that, despite no lang uag e plainly supporting such an interpre tation, subsection (f) (3) s h o u l d be interpre ted to

acc ommodate the circ umstances asser ted here

. See Glover v. W est , 185 F.3d 1328, 1332 (F ed. Cir. 1999) (noting that regulatory interpre tation should "a ttempt to g ive full eff

ect to all words contained

7within that statute or reg ulation, there by rende ring superf luous as littl e of the statutory or regulatory lang uag e as possible" ). 2. The Reg ulatory History of Subsection (f) (3) Al t h oug h the plain lang uag e of the regulation does not support the appellant' s proposed interpre tation, the Court will revie w the regulatory history to deter mine whether it reve als an intent that is inconsistent with the plain lang uag e of the regulation and the ag ency ' s interpre tation there of. Cf. Glaxo Operations U.K. Ltd. v. Qu i g g , 8 9 4 F.2d 392, 395 (F ed. Cir. 1990) (" [E] ven when the plain meaning o f t he statutory lang uag e in question would resolve the issue befor e the court, the leg islative history sho u l d usually be examined at least ' to deter mine whether there is a clearly
expre ssed leg islative intention contra ry to the statutory languag e.' " (quoting and adding emphasis to Madison Galleries, Ltd. v. United States , 870 F.2d 627, 629 ( Fe d. Cir. 1989))). An ag ency ' s interpre tation of its own regulations is controlling unless it is "' plainly err oneous

or inconsistent with the regulations.'" Auer v. Robbins , 519 U.S. 452, 461 (1997) (quoting Robertson

v. Methow Valley Citi

zens Council , 490 U.S. 332, 359 (1989))

. Fur thermore , "[d]efere nce to an ag ency ' s interpre tation of its own regulations is broade r than defe renc e to the ag ency ' s construction of a statut e, beca

use in the latter case the ag ency is addre ssing Congr ess' s intentions, while in the former it is addre ssing its own." Cathedral Candle Co. v. U.S. Int'l. Trade Comm'n , 400 F.3d 1352, 1363-64 (F ed. Cir. 2005). The comments acc ompany ing the regulatory revision proposal specify that it was VA' s intent
to liberalize the stressor occur renc e confirmation re q u i re m en ts for milit ary personne l who are deploy ed to war

zones and who, although not assig ned to or enga g ing in actua l front-line c ombat, nonetheless are fac ed with signific ant combat-like stressors in an er a o f incre ased insurg ent and
g uerilla war far e. 74 Fe d. Reg

. 42,617; see Nat' l Org. of Veterans' Advoc ates , 669 F.3d at 1344 (" The VA explained that the rule was ' intended to acknow ledg e the inhere ntly stressful nature ' of serving wher e ' hostile milit ary or terror ist activities [are] ong oing.' ")

. Additionally , the comments

acc ompany ing the final rule clea rly note that "V A also rec eived comments sug g esting that the rule should cover stressors such as MST" befor e concluding that "[t]hese comments are outside the scope of this rule" and that MST is instead addre ssed in 38 C.F.R. § 3.304(f) (5). Stressor Deter minations for Postt rauma tic Stress Disorder , 75 Fe d. Reg

. 39,843 (Jul y 13, 2010) (F inal rule). The Secre tary ' s

8interpre tation of his revised regulation and expressed intent in promulg at i n g § 3.304(f) (5) is

consistent with the regulation's pla in lang uag e. See G laxco , supra
. To the extent that the appellant argues that th e co m m ents to the final rule reg arding the require ment that the stressor be consistent with the place s, ty pes, and circ umstances of the claimant' s service support her interpre tation, that argument is likewise unavailing

. App. Br

. at 11. Whil e it is true that VA declined t o l i mit the application of t he rule to veter ans who serve d in a combat zone and dec lined to limi t the application "to events or circ umstances perpetrated by a foreig n enemy ," it never theless rema ins a require ment that the underly ing stressor be rela ted to a fe ar of hostile milit ary or terr orist activity

. The appellant' s proposed interpre tation of para g raph (f) (3) is opposed b y b o t h the plain meaning of t he reg ulation an d t h e agency ' s interpre tation and ex presse d intent in promulg ating it. Fur thermore , the appellant' s interpre tation—which only require s that a veter an be confr onted with

a threa t to her phy sical integ rity —essentially rea ds o u t t h e require ment that the veter an' s fea r be based on hostile military

or terr orist activity

. Neither the l ang uag e of § 3.304(f) nor i ts regulatory history sug g ests that VA is prec luded from evaluating a claimed stres s o r, s uch as the appellant' s MST, under either subsection (f) (3) or (f) (5). Simpl y beca

use subsection (f) (5) was desig ned to a ddress in-servic e persona l a ssaults doe s not prec lude VA from evaluating in-servic e persona l assaults under subsection (f) (3) as long as the circ umstances are such that the veteran' s claimed stressor is related to her "fea r of hostile milit ary

or terror ist activity ." See Glover, supra. Be cau s e t h e appellant' s proposed interpre tation of 2
para g raph (f) (3) is contra

ry to the plain meaning of the reg ulation and the ag ency ' s interpre tation and
express intent in promulg ating it, the Court conclude s that the reduc ed evidentiar y burden of subsection (f) (3) is not applicable to the appell ant' s claim based on her bare asser tion that her
stressors ar e re lated to her fea r of hostile military

activity

.

T he Court do es not reach the q uestion o f w heth er assaul t by one service m e mb e r up on another could ever 2 qualify for app lication of subsection (f)(3 ), althoug h an exam ple of circum stances that m igh t raise such a question w as the sh oo ting of fellow

service m em

ber s and b y standers by an Arm y m aj or at Fo rt Ho od , T exas. 9B. A dequac y of 2008 VA Examination The appell an t arg

ues t hat t he 2008 VA ex amination inadequa tely addre ssed whether there is a nex us between h er m aj o r depression and her milit ary service

. "Whether a medical opinion is ade q u at e i s a finding of fac t which this Court revie ws under the ' clea rly err oneous' standard of revie w." D'

A r i es v. P eake , 22 Vet.App. 97, 104 (2008). Moreove r, there is no rea sons or bases require ment imposed on examiners. Rather, a n adequate medica l report must re st on c orre ct fa cts and rea soned medical judgme nt so as i nform the Boa rd on a medical question and fac ilitate the Boa rd' s consideration and weig hing of the repor t ag ainst any contra

ry repor ts. See Nieves- Rodriguez

v. Peak e , 22 Vet.App. 295, 304 (2008) (holding in the context of weig hing one medical opinion with another that "[i]t is the fac tually

acc urate , fully articula ted, sound rea soning for the conclusion

. . . that contributes probative value to a me dical opinion") ; D'Aries , 22 Vet.App. at 104 ( "A n opinion is adequa te wher e it is based upon considera tion of the v et er an ' s prior medical history and examinations and also de scribes the disability in suf ficient de tail so that the Boa rd' s ' evalua tion of the claimed disability will be a fully informed one.' " ( quoting Ardison v. Brow n , 6 Vet.App. 405, 407 (1994)) ); Stefl v. Nicholson , 21 Vet.App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analy sis t hat the Boa rd can consider and weig h ag ainst
contra ry opinions"). To the extent that the summ ary and conclusion section of the 2008 VA examination re port reg arding the appellant' s major depre ssion might be viewed as concise , the repor t never theless must be rea d as a whole, and the Boa rd is permitted to draw infere nces based on the overa ll repor t so long
as t he inferenc e does not result i n a medical deter mination. See Kahana v. Shins ek i , 2 4 Ve t.App. 428, 435 (2011). Her e, the Boa rd noted from the 2008 VA examination report that the a ppellant' s in-servic e psy chiatric condition, including her suicide attempt, was rela ted to her discharg e from service and diag nosed as somet h i n g other than depre ssion and that her depre ssion, a separ ate condition, did not sta

rt until many

y ear s after

service , afte r her

1996 surg ery . Ba sed on the re cord of proce eding s, the Boa

rd' s view of and assig nment of weig ht to this repor t are plausible and n o t clea rly err oneous. See D 'Aries , supra ; see also R. at 114, 117, 122, 125-26.

10C. Reasons or B ases

Finally , the appellant arg ues that the Boa

rd prov i d ed i n ad equate rea sons or bases when it failed to discuss service connec tion for her depression under the o ri es of chronic ity and continuit y of sy mptomatology , failed to consider the favor able evidenc e of her in-servic e suicide attempt and
psy chiatric trea tment, failed to apply 38 C.F.R. § 3.304(f) (3) to her claim, and acc epted as adequate the 2008 VA e x amination. App. B r. at 13-15, 20- 23; App. Reply Br . at 3-4. The appellant cites 38 C.F.R. § 3.303 for the proposition that she need mere ly show that her condition had its inception during service , but that is an i n compl ete para phrase of the regulation. App. Br

. at 17. Section 3.303(b) provides for the establishment of service connec tion when a disease or injury documented in service manifests ag ain af ter ser vice through a theor

y of either chronic ity

or continuity of sy

mptomatolo gy
. Chronicity is established if the evidenc e demonstrates the exis tence of a chronic disease in service and prese nt manifestations of that same disease. Savage v. Go b er , 1 0 Vet.App. 488, 495-97 (1997). Alterna tively , continuity of sy mptomatology may b e establi s h ed if the evidenc e demonstrates that a condition was "note d" during service ; evidenc e of post-service continuity of the same sy mptomatology ; and medical or, in c erta in c ircumstance s, lay evidenc e of a nexus betwee n the prese nt disability and the post-service sy mptomatology

. 38 C.F.R. § 3.303(b) ( 2012); see Sav age , 10 Vet.App. at 495. The appellant argues that a suicide attempt nece ssarily indicates that she suffered from "se rious psy cholog ical is sues" during service

. App. Br. at 22. Even assuming, arg uendo, that the appellant' s in-servic e diag nosis was of a chronic condition, the rec ord ref lects that that condition was diag nosed as an adjustment disorder while her curr ent diag nosis—and the disability for which she seeks be nefits—is depre ssion. Fur thermore , the appellant does not now identify —nor has she ever in the rec ord befor e the Court—evidence of post-service continuity of the same sy mptomatology as no te d in service

. I ndeed, the appellant has consistently asser ted that her curr ent psy chiatric sy mptoms did not manifest until afte r her 1996 surg ery , that is, over eig ht y ear s afte r her discharg e from service

. See , e.g ., R. at 122, 1235. Be cause she did not raise these t h eories of service connec tion below and they wer e not

re as o n ab l y raised by the rec ord, the Boa rd did not err by not addre ssing them. See Robin s o n v.

11Pe a k

e , 2 1 V e t

. A

p p
. 5 4 5 , 5 5 2 ( 2 0 0 8 ) , a

f f ' d s u b n o m

. R o b i n s o n v

. S

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. 3 d 1 3 5 5 ( F e d

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. 2 0 0 9 )

. The Boar d specific ally addre ssed t he favorable ev i d en ce highlig hted by the appellant and, thus, the appellant' s argument that such a discussion did not occur is meritless. R. at 23. The Court has alre ady

deter mined that the B oard' s finding s with respe ct t o the remaining alleg ations of er ror

wer e supported by the rec ord and now conclude s that the Boa rd' s analy sis was supported by an adequate statement of r easons or bases. See 38 U.S.C. § 7104(d)(1); Allday v. Brown , 7 Vet.App. 517, 527 (1995); Gilbert v. De rwinski , 1 Vet.App. 49, 56- 57 (1990).

III. CONCLUSION After the Court's consideration of the appellant' s and the Secre tary ' s briefs, its revie w of the

rec ord, and its consideration of the parties' positions advanc ed at oral arg ument, that portion of the September 9, 2010, de cision of the B oard tha t is on appeal is AF FI RMED.

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