Bernadine Acevedo v. Eric K. Shinseki
2012 U.S. Vet. App. LEXIS 1409
| Vet. App. | 2012Background
- Acevedo served 1978–1988 in the U.S. Army and was discharged for misconduct after a positive marijuana test.
- Prior to discharge she attempted suicide and was diagnosed with adjustment disorder related to discharge stressors.
- In 2000 Acevedo informal-claimed a psychiatric disorder; she alleged MST during 1978 basic training and post-service memories after brain surgery in 1996.
- VA examinations (2001, 2008) produced diagnoses of major depressive disorder and PTSD by some examiners, but no nexus establishing PTSD; 2009 addendum clarified depression was unlikely related to service.
- The Board in 2010 denied service connection for PTSD; the Board found the 2008 examination the most probative and concluded depression was not service‑related; other claims were abandoned.
- Court affirmed the Board’s September 9, 2010 decision as to the PTSD/depression claim on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3.304(f)(3) applies to MST stressors | Acevedo argues (f)(3) lowers evidentiary burden for MST evidence. | Secretary contends plain language/history do not permit (f)(3) for MST; MST falls under (f)(5). | Not applicable; (f)(3) does not cover MST as pleaded. |
| Adequacy of the 2008 VA examination | Acevedo asserts 2008 exam was inadequate for nexus opinion. | Secretary contends 2008 examination was adequate and well-reasoned. | Exam adequate; Board could rely on it. |
| Board's failure to address depression theories and chronicity/continuity | Acevedo contends Board ignored theories of chronicity/continuity and favorable evidence. | Secretary asserts theories were not reasonably raised and need not be addressed. | No error; theories not reasonably raised; reasons/bases adequate. |
| Whether the Board applied § 3.304(f) correctly to the PTSD claim | Acevedo argues improper application of the stressor regulations. | Secretary argues the Board correctly applied the regulatory framework. | Board correctly applied the regulations; § 3.304(f) was not misapplied. |
| Whether the Board's reasons or bases support denying PTSD with an adequate nexus | Acevedo argues the Board inadequately weighed evidence and erred in weighing the 2008 exam. | Secretary asserts the Board weighed the record and provided adequate rationale. | Board's reasons/bases are adequate; decision affirmed. |
Key Cases Cited
- Ford v. Gober, 10 Vet.App. 531 (1997) (abandoned claims reviewed; standard for abandonment)
- Bucklinger v. Brown, 5 Vet.App. 435 (1993) (abandonment of certain claims; review limited)
- Mauerhan v. Principi, 16 Vet.App. 436 (2002) (limitations of “hostile activity” examples in statutory text)
- Glover v. West, 185 F.3d 1328 (1999) (regulatory interpretation should consider full text)
- D'Aries v. Peake, 22 Vet.App. 97 (2008) (adequacy of medical opinions; reasoned analysis required)
- Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (medical opinions must be based on correct facts and provide reasoning)
- Savage v. Gober, 10 Vet.App. 488 (1997) (chronicity/continuity theory of service connection)
- Ardison v. Brown, 6 Vet.App. 405 (1994) (necessity of detailed medical rationale for nexus)
- Robinson v. Peake, 21 Vet.App. 545 (2008) (the Board’s analysis and raised theories must be reasonably presented)
- Robinson v. Shinseki, 557 F.3d 1355 (2009) (federal circuit on issues of evidence and reasoning in VA claims)