Veteranclaims’s Blog

September 20, 2012

Single Judge Application, 38 C.F.R. 3.304(f)(5); Behavioral Changes One Type of Relevant Evidence; Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 2011)

Excerpt from decision below:
“The Board rejected the statements from the appellant’s family members
because “none of these individuals has claimed to witness any personal assault that took place in service, and these statements were submitted seventeen years following the [v]eteran’s separation from her second period of active duty.” R. at 23. However, the statements submitted by the appellant’s brother and sister-in-law addressed behavioral changes in the appellant between the time she joined the military and the time she returned from Spain. See R. at 386-87, 407-08, 812, 816. Evidence of behavioral changes is “one type of relevant evidence” that may corroborate the appellant’s account of the in-service stressor. 38 C.F.R. § 3.304(f)(5).”
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“Furthermore, this Court has stated that “[i]f in the process of
identifying these potential sources [under §3.304 (f)(5)], a claimant provides the name or names of any persons who allegedly perpetrated the assault or the names of any potential witnesses, the Secretary’s reasonable efforts to assist, as required under section 5103A(a), may also include attempting to assist the claimant in obtaining statements from these persons.” Forcier v. Nicholson 19 Vet.App. 414, 422 (2006) (citing Patton, 12 Vet.App. at 280-81).
The Court notes that on at least two occasions, the appellant provided
names of people to whom she contemporaneously reported her in-service stressors. See R. at 378, 404-05. During her June 2008 testimony before the RO, while explaining the April 1983 assault at the softball field at
Portsmouth Naval Hospital, she identified the month and year of the attack,
and the name of the chief to whom she described the incident. See R. at 378. When she described being beaten by her husband for not hiding his alcohol well enough, she explained that she told her husband’s petty
officer and his wife. See R. at 404-05. Based on these descriptions,
including the names and ranks of the individuals who might have knowledge of the event, the Board erred in concluding that the Secretary satisfied his duty to assist where he made no effort to help the appellant corroborate her stressor. See Forcier, 19 Vet.App. at 422 (finding the duty to assist had been satisfied where the Board had ordered the RO to “pursue all available avenues to assist [the veteran] in locating anyone identified for a statement regarding the claimed incident, including the two sergeants he had identified by name”).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3621
BC, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, through counsel,appeals the February9,
2011, decision
of the Board of Veterans’ Appeals (Board) that denied entitlement to
disability compensation for an
acquired psychiatric disorder, to include post-traumatic stress disorder (
PTSD).
Record of
Proceedings (R.) at 3-24. This appeal is timely and the Court has
jurisdiction to review the Board’s
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will
vacatetheFebruary9,2011,
Boarddecisionandremandthematterforfurtherproceedings consistent
with this decision.
I. BACKGROUND
The appellant served in the U.S. Navyfrom October 1982 to October 1986,
and from August
1990 to June 1991, with additional Reserve service. R. at 175, 982, 1491.
In April 1984, the
appellant married a fellow Navyservicemember and requested to be
transferred to the naval hospital
in Rota, Spain, where the appellant’s spouse was assigned. R. at 438. The
appellant was thereafter
transferred. R. at 452. The appellant gave birth to her first child in
December 1984. R. at 559. The
narrative summarystates that during delivery she underwent a “third degree
midline episiotomy and

repair.” Id. Theappellant’s June1986separationphysicaldid not note
anypsychological conditions.
R. at 588-89.
In October 1986, the appellant declined reenlistment and requested release
from active duty
and returned to the United States. R. at 416. Medical examination reports
from December 1987,
February 1990, and June 1991 did not note any psychological conditions. R.
at 594-95, 599-600,
609-10.
A September 1998 psychiatric consult report indicates that the appellant ”
entered treatment
because of severe depression which she has been experiencing for four
years since her left hand was
caught in machinery at work.” R. at 1443. The doctor diagnosed her with “[
m]ajor depression,
single episode, moderate.” Id.
A January 2001 private treatment report indicates that the appellant
suffers from “reflex
sympathetic dystrophy” following surgery after her hand injuryNext Hit in 1994. R.
at 1414. The report
further stated that the appellant and her husband were having ”
difficulties” and that he tried to make
“her into a stronger person but recently threatened to divorce her.” Id.
The appellant reported a
history of childhood sexual and physical abuse by her stepfather. R. at
1415. She was diagnosed
with depression, not otherwise specified. Id.
A further January2001 psychiatric evaluation, following a hospitalization
for the appellant’s
severe major depression related to use of Oxycontin, noted chronic pain
with subsequent reflex
sympathetic dystrophy; depression; family stresses including trouble with
her marriage; and “past
trauma with residual symptoms exacerbated by her pain and the trauma of
the injuries and
subsequent reflex sympathetic dystrophy and chronic pain.” R. at 1289. The
doctor noted that the
appellant “suffered physical and sexual abuse from a stepfather and felt
betrayed by her mother who
rejected the [appellant’s] complaints abouttheabuse.” R. at 1290. The
appellant was diagnosed with
“[m]ajor depression, recurrent, with winter exacerbations, currently in
partial remission” and
“PTSD.” Id. The doctor’s diagnostic impressions noted that the appellant
had a “complex pattern
of PTSD” and “recurrent major depression with seasonal exacerbation.” Id.
He further noted that
“[b]oth the depression and the PTSD have been exacerbated by the chronic
pain syndrome and
secondary disability reflex sympathetic dystrophy” and that her ”
exacerbation of depression may
have been related in part to the Oxycontin.” Id.
2

In an April 2001 progress note, the doctor noted that the appellant
admitted that she “tends
not to let her physicians know how she is doing” because she does not want
to complain. R. at 1291.
The doctor opined that “[i]t becomes clear as I get to know her that she
has some maladaptive coping
traits related to her chronic illness that involve not wanting to complain
and withdrawing from
contact and some sense of defeat.” Id.
A May 2001 psychiatric treatment note indicates that the appellant was
admitted to the
hospital for “suicidal and homicidal ideation.” R. at 1333. The doctor
noted that the appellant “has
had significant problems with jealousy about another woman that has been
working with her
husband, and the woman has been very forthright about wanting her husband.”
Id. The doctor also
indicated that the appellant had been “somewhat secretive with her
physicians about some of her
problems.” Id. A mental status examination noted that the appellant had ”
bad dreams, flashbacks,
recurrent intrusive memories, and some exaggerated startle response
episodically.” R. at 1334. She
was diagnosed with major depression, PTSD, and chronic pain. Id.
In May 2004, the appellant filed a claim for disability compensation for
PTSD, arguing that
its onset was 1985. R. at 1052. A June 2004 VA psychiatrynote states that
the appellant “continues
to suffer chronic PTSD symptoms secondaryto significant sexual trauma
while in the [U.S.] Navy.”
R. at 1023-24, 1045. In August 2004, the regional office (RO) denied the
appellant’s claim for PTSD
based on a lack of evidence of in-service sexual trauma. R. at 1018-21.
The appellant did not appeal
the denial. In January 2005, the RO requested that the appellant complete
a PTSD questionnaire,
but there is no evidence in the record that she responded. R. at 1010-11.
The appellant again filed a claim for disability compensation for PTSD in
November 2006.
R. at 990-1009. Accompanying the claim were three letters from her
treating VA psychiatrist, which
stated that the appellant’s “depressive symptoms and PTSD symptoms
originated following a sexual
trauma and abuse she sustained while in the Navy.” R. at 984-88. In
February 2007, the appellant
submitted a personal trauma PTSD questionnaire. R. at 964-71. She
explained that her former
husband, a member of the U.S. Navy, had physically and sexually assaulted
her while they were
serving in Spain. In a separate February 2007, 11-page statement the
appellant again described her
former husband’s physical abuse, and described in greater detail what
occurred while they were
assigned to Spain:
3

I had not know[n] about the anger and rage [my former husband] could show
until
I married him and was stationed in Spain. I had no one to turn to. The
command was
very small and he made friends easily. He began to offer me sexually to [
one of his
friends] . . . . I gave birth to our first child Dec[ember] 1984 in Rota
Spain. During
delivery I suffered a [third] degree laceration and rectal sphin[c]ter
prolapse . . . .
[T]wo weeks of forced sexual advances by spouse . . . result[ed] in the
sutures in my
episiotomy ripping open.
R. at 950. She also explained that her husband repeatedly slapped her and
choked her. R. at 952.
The appellant and her daughter lived in a hotel during the appellant’s
final two weeks of duty in
Spain, and returned to the United States in December 1986. R. at 956.
Additionally, the appellant
described being accidently stuck with two contaminated needles while she
was stationed at
Portsmouth Naval Hospital. R. at 944. She also described being assaulted
by a U.S. Navy “chief”
on a softball field while other enlisted U.S. Navy service members watched.
R. at 944-46.
In April 2007, the RO reopened the appellant’s claim for entitlement to
disability
compensation for PTSD, but denied the claim on its merits. R. at 898-902.
The appellant submitted
a Notice of Disagreement (NOD) in May 2007. R. at 894. In August 2007, the
RO issued a
Statement of the Case, which confirmed and continued denial of the
appellant’s claim for disability
compensation for PTSD. R. at 835-49.
After the RO received the appellant’s NOD, the RO received medical records
from the
Batavia VA medical center (VAMC). R. at 850-80. The records indicate an
assessment of PTSD,
“chronic with delayed onset.” R. at 850. Additionally, the records state
that the appellant “continues
to present as a domestic violence victim” and that she has “chronic PTSD
related to her 17 year
historyof severe domestic violence byher spouse, including physical,
emotional, psychological, and
sexual abuse.” R. at 857, 864. The records also note that the appellant
had “preexisting trauma
history due to experienc[ing] severe child abuse, including physical,
emotional, and sexual abuse in
her family by her stepfather.” R. at 864. An April 2007 list of future
appointments included a
February 2008 appointment with the Women’s Residential Program at the
Batavia VAMC. R. at
866.
In February 2008, the RO received statements from the appellant’s brother
and sister-in-law.
Her brother stated that they were “raised to be strong, independent, and
responsible persons. But
[he] had watched that person disappear in [the appellant’s] case.” R. at
816. He explained:
4

When [appellant] finished high school she went into the military it
seemed she had
[found] her calling[,] but things changed after that point. We did not
hear much from
her for about 2-3 years. The next time we were together was when she
returned
[from] Spain with a husband and two young children. This is when I really
had a
chance to see the change in [the appellant]. The stories [she] came home
with were
unbelievable to me as to how her life had changed. . . . She was very
paranoid she
seemed to think everyone was out to get her and she was never wrong no
matter the
situation. She became very combative with all of her family members over
the
slightest of issues. . . . We tried to help in bringing her husband . . .
home for a
weekend to see his family [which] brought to our attention the situation
with [the
appellant’s husband] having an affair.
R. at 816. Her brother further explained that after the appellant moved to
Maryland he found her
“unable to cope with day to day issues and activities” and that a short
while later she “was on a
continuous [downward] trend” and that she would often call for advice
because she was unable to
make a decision on her own.” Id. The appellant’s brother also explained
that after the appellant and
her husband moved to Idaho, he “wanted to bring another woman in to live
in [appellant’s] home and
share him between the two of them.” Id. He explained that eventually the
appellant “moved to a
shelter to try and help herself and two of her children.” R. at 818.
The appellant’s sister-in-law also wrote a letter to VA, explaining that
she had known the
appellant for 25 years and that
[w]hen [she] first met [the appellant] she displayed a strong sense of
self-being as
well as a very strong personality. She was very decisive and secure in her
decisions.
[The appellant] returned from Spain where her husband and she herself were
stationed in the Navy. She and her two children stayed with my in-laws
while her
husband [] went [away] to school in Colorado. During this time [the
appellant] was
very over-protective of her children to the point of paranoia. . . . My
husband [] and
I thought it was the stress of being away from her husband with two
children. We
purchased a ticket for [her husband] to come home on a weekend to visit as
a surprise
for [the appellant]. When we called him he refused to come home citing
that he was
going hunting. After [the appellant’s husband] called [the appellant]
about the
surprise she begged us to never interfere with [her husband’s] plans again.
I was very
surprised myself at her complete terror that we would ask [the appellant’s
husband]
to change his plans again.
R. at 812.
Additionally, the appellant’s sister-in-law stated that she had witnessed
the appellant’s
husband trying to strangle the appellant, and the appellant’s daughter
informed the sister-in-law that
5

the appellant’s husband beat the children and the appellant and that he
had insisted that the appellant
should kill herself “because she was useless.” R. at 814.
The appellant perfected her appeal to the Board in April 2008. R. at 792.
In June 2008, the RO received a letter from the appellant’s treating VA
social worker, in
which he stated that he had been treating the appellant since October 2007
and that she was in active
treatment for PTSD “secondary to military sexual trauma that she
experienced during her military
tour of duty.” R. at 740. The social worker explained that the appellant
had completedtwo segments
of residential care at Batavia VAMC. Id. He opined that the appellant
continued to suffer from the
symptoms of PTSD “that is specifically related to the events that occurred
to her during her military
service.” Id.
The appellant testified before an RO hearing in June 2008. R. at 373-411.
She testified that
she was receiving mental health treatment from the Buffalo VAMC. R. at 376.
She explained that
she had been married to her husband from 1984 to 2003, and that he “taught
me how our life was
going to be and how he was the head of the household and things were going
to be his way. If I even
tried to change it there was hell to pay.” R. at 384. She provided
detailed testimony as to various
incidents of domestic violence and sexual assault she suffered while in
service, at the hands of her
husband, including his giving her as a “gift” to his friends. R. at 378-
411. After discussing the
incident where her husband hit her for not hiding his alcohol well enough
in their luggage, she
explained that she did not report her husband’s abuse because “[i]t was
the way [she] was raised.
That you find the good in everybody and [she] kept looking for the good
and [she] couldn’t believe
that this could[] be the man [she] met and [she] married and had children
with.” R. at 386. The
appellant further explained:
I was working in the Pediatric Clinic and [my husband] came and got me and
there
was a filing cabinet out [] where records were kept and it said in huge
letters FAR.
I didn’t know what they meant. He pulled me out of my clinic and said you
see that
cabinet and I said yeah and he said our files will never be in it. Well,
later on I
learned they were Family Advocacy Records. They were families that were in
abusive situations. And he told me in no uncertain terms ours would never
be in
there. So no matter what he did ours weren’t going in there.
R. at 391. However, during her RO hearing testimony the appellant
explained that she had told Petty
Officer Jeff Connor and his wife Lisa Connor about what happened right
before the couple left
6

Spain. R. at 404-05.
At the hearing, the appellant’s brother testified that when she returned
from Spain the
appellant was not the same person she had been before she joined the Navy.
R. at 386-87, 407-08.
He explained that when she returned from Spain, she “could not make her
own decisions so
somebody always had to tell her what to do or, I mean basic things. . . . [
The appellant’s former
husband] would just tell her exactly what he wanted and how to do it.” R.
at 387.
During the hearing, the appellant also detailed the incident that occurred
in April 1983 at the
softball field at Portsmouth Naval Hospital. R. at 377-78. She stated that
she reported the incident
to “Chief Beeler,” but that nothing was done. R. at 378.
In March 2009, VA received a November 2008 letter from the appellant’s
treating
psychiatrist, stating that the appellant has been diagnosed with chronic
and severe PTSD, related to
sexual trauma and abuse she sustained while she was serving in the U.S.
Navy. R. at 355. The same
month, the RO received an April 2002 psychological evaluation of the
appellant’s family prepared
inconjunction with divorceproceedings,
specificallyfordeterminingthebestparentingarrangement
for the appellant’s children. R. at 261-351. The evaluation, based on
interviews with family
members and psychological testing for the adults, indicated that the
appellant’s husband “tends to
be somewhat competitive and needs to see himself as masculine. He probably
prefers to view
women in subservient roles. Interpersonally, he is likely to be intolerant
and insensitive, and others
may find him rather crude, coarse, or narrow-minded.” R. at 315. The
psychologist noted that two
of the couple’s three children lived with the appellant “in a location
that they wished not to be
disclosed” to their father, the appellant’s husband. R. at 269. The
appellant told the psychologists
that she had not left her husband earlier because of her religious
upbringing and Navy training that
taught her to “do what [she] is told.” R. at 271. The appellant’s oldest
daughter described her father
as “aggressive and physically abusive.” R. at 291. The appellant’s son
explained that he initially
lived with his father to “avoid a spankin[g],” but his father would not
let him see his mother on
weekends, so ultimately he decided to live with the appellant. R. at 309.
Also in March 2009, the appellant’s oldest daughter submitted a statement
to the RO
discussing the family dynamic. R. at 179-238. She stated that her father
often hit her younger sister
and that he would pull her “up and down the stairs” by her hair, would
hold her down by her hair to
7

the point that “chunks of hair would be missing from her head.” R. at 181.
She also explained that
her father forced her to tell her school counselor that she had lied when
she told the counselor that
her father spanked her sister a lot. R. at 191. She further described
being beaten with a belt when
she was 15 years old and being punched in the face by her father. R. at
199.
In June 2009, the RO again denied the appellant’s claim. R. at 53-56. The
Board issued the
February 2011 decision currently before the Court. R. at 3-24. In its
decision, the Board found that
the duty to assist was satisfied because “[t]he [v]eteran has not
identified, and the record does not
otherwise indicate, any additional existing evidence that is necessary for
a fair adjudication of the
claim that has not been obtained.” R. at 10. It also found that an
examination was not warranted
because the record “does not show a verified [in-service] stressor or any
evidence of [in-service]
psychiatric complaints, treatment, or diagnosis.” R. at 9.
The Board also discussed that “[t]here was no indication in the service
treatment records
[(STRs)] that either of [the appellant’s] pregnancies resulted from sexual
assault. In fact, STRs
include no evidence of trauma that could not be verified or explained as
due to an event other than
sexual trauma.” R. at 14. The Board found that the preponderance of the
evidence was against
finding that any non-PTSD psychiatric disability was related to service,
citing the absence of
psychiatric complaints or treatment in the service medical records (SMRs)
and the seven-year gap
betweentheappellant’s separationfromserviceand the first documentation of
a psychiatric disorder.
R. at 19.
With regard to PTSD, the Board noted that “[n]either the service personnel
records
nor the [SMRs] from service document any in-service personal assault.
Records show that the
[v]eteran was married and had children during her period of service.” R.
at 21. After discussing the
VA diagnosis of PTSD related to in-service physical and sexual trauma, the
Board noted “that the
PTSD diagnos[e]s have been based solely on statements from the Veteran,
and that it [is] not
supported byevidence of a confirmed in-service stressor.” R. at 22. The
Board indicated that it was
“pertinent that the [v]eteran never reported any incidents of [in-service]
assault until after she
originally filed a claim for entitlement to service connection in June
2004.” Id. In finding that the
record did not corroborate the appellant’s accounts of her husband’s
assaults, the Board cited the
absence of documentation in the service records that the appellant had
reported the assaults or
“instigated proceedings against her alleged attacker.” R. at 23.
8

The Board, after noting their competence, rejected the statements made by
the appellant’s
family members because “none of these individuals has claimed to witness
any personal assault that
took place in service, and these statements were submitted seventeen years
following the [v]eteran’s
separation from her second period of active duty.” Id. The Board found the
VA medical opinions
that the appellant’s PTSD was caused by in-service assault unpersuasive
because the providers did
not have access to the claims file prior to rendering their opinions, and “[
e]ven if they did . . . it is
clear that the record does not contain evidence to verify that a personal
assault occurred.” R. at 25.
II. ANALYSIS
To establish service connection for PTSD, a claimant must present (1)
evidence of a current
diagnosis of PTSD; (2) evidence of an in-service stressor, with credible
supporting evidence that the
claimed in-service stressor occurred; and (3) evidence of a causal nexus
between the current
symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f)(2012);
see Cohen v. Brown,
10 Vet.App. 128, 138 (1997). When a claim for PTSD is based on a noncombat
stressor, “the
noncombat veteran’s testimony alone is insufficient proof of a stressor.”
Moreau v. Brown,
9 Vet.App. 389, 396 (1996). In claims for PTSD based on an in-service
personal assault, “evidence
from sources other than the veteran’s service records may corroborate the
veteran’s account of the
stressor incident.” 38 C.F.R. §3.304(f)(5); see Bradford v. Nicholson, 20
Vet.App. 200, 205 (2006).
The types of corroborating evidence include, but are not limited to ”
records from law enforcement
authorities, rape crisis centers, mental health counseling centers,
hospitals, or physicians; pregnancy
tests or tests for sexually transmitted diseases; and statements from
family members, roommates,
fellow service members, or clergy.” 38 C.F.R. § 3.304(f)(5).
Additionally, “[e]vidence of behavior changes following the claimed
assault is one type of
relevant evidence that maybe found in these sources.” 38 C.F.R. § 3.304(f)(
5). Evidence indicating
a change in behavior includes, “but is not limited to: a request for a
transfer to another military duty
assignment; deterioration in work performance; substance abuse; episodes
of depression, panic
attacks, or anxiety without an identifiable cause; or unexplained economic
or social changes.”
38 C.F.R. § 3.304(f)(5).
The Court reviews the Board’s factual determination as to the sufficiency
of corroborative
9

evidence of the in-service stressor under the “clearly erroneous”
standard of review. See 38 U.S.C.
§ 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing
Pentecost v. Principi,
16 Vet.App. 124, 129 (2002)) (regarding corroborative evidence). A finding
of fact is clearly
erroneous when the Court, after reviewing the entire evidence, “is left
with the definite and firm
conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364,
395 (1984); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
A. Adequate Statement of Reasons or Bases
The Board must provide a statement of the reasons or bases for its
determination, adequate
to enable an appellant to understand the precise basis for its decision,
as well as to facilitate review
in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert,
1 Vet.App. at 56-57. To comply with this requirement, the Board must
analyze the credibility and
probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,78 F.3d 604 (Fed. Cir.
1996) (table). Whatever
the type of evidence, it is the Board’s province to determine its
credibility and weight. See
Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Wood v. Derwinski,
1 Vet.App. 190, 193
(1991). The credibility of a witness can be impeached by a showing of
interest, bias, inconsistent
statements, or, to a certain extent, bad character. See Caluza, 7 Vet.App.
at 511.
The Board rejected the statements from the appellant’s family members
because “none of
these individuals has claimed to witness any personal assault that took
place in service, and these
statements were submitted seventeen years following the [v]eteran’s
separation from her second
period of active duty.” R. at 23. However, the statements submitted by the appellant’s brother and sister-in-law addressed behavioral changes in the appellant between the time she joined the military and the time she returned from Spain. See R. at 386-87, 407-08, 812, 816.
Evidence of behavioral changes is “one type of relevant evidence” that may corroborate the appellant’s account of the in-service stressor. 38 C.F.R. § 3.304(f)(5).
Consequently, the Board failed to provide an adequate
statement of reasons or bases for rejecting the statements made by the
appellant’s family members without discussing their belief that the appellant’s behavior changed
between the time she entered
the military and she returned from Spain. Caluza, 7 Vet.App. at 506.
10

The Board further erred when it found the appellant’s statements
regarding her in-service
physical and sexual abuse had no probative value because they were
inconsistent, specifically
because the appellant did not report the in-service assault until after
she filed a claim for entitlement
to service connection in June 2004. R. at 22. Although it is true that the
appellant only discussed
childhood physical and sexual trauma during psychiatric treatment she
received prior to June 2004,
the Board failed to address the appellant’s testimony that while she was
married she was afraid to
report the sexual and physical abuse she suffered from her husband. The
appellant remained married
until July 2002. R. at 1006, 1055. The appellant testified that her
husband controlled her behavior
and threatened her if she told anyone of his actions. See R. at 384 (
testimony from the appellant that
her husband taught her that “he was the head of the household and things
were going to be his way.
If [she] tried to change it there was hell to pay.”); R. at 387 (testimony
that the appellant’s husband
was controlling and that she was not allowed to make decisions); R. at 391 (
testimony about her
husband threatening that their family would never appear in the Family
Advocacy Records); R. at
812 (letter from the appellant’s sister-in-law stating that the appellant
was “afraid for her children
and herself” and describing fear that the appellant showed after her
husband was asked to visit by
her brother). Nor did the Board discuss that psychological testing
performed during the appellant’s
divorce proceedings showed that the appellant’s husband needed to “see
himself as masculine” and
that he preferred to “view women in subservient roles, that
interpersonally, he is likely to be
intolerant and insensitive, and others may find him rather crude, coarse,
or narrow-minded.” R. at
315. Additionally, the Board did not discuss the evidence from the
appellant’s mental health
providers from 2001, who stated that she had “maladaptive copingtraits
related to her chronicillness
that involve not wanting to complain, withdrawing from contact and some
sense of defeat” and that
the appellant had been “somewhat secretive with her physicians about some
of the problems.” R.
at 1291, 1333. Therefore, the Board erred by not providing an adequate
statement of reasons or
bases that provided reasons for its rejection of evidence favorable to the
appellant. Caluza, 7
Vet.App. at 506.
Furthermore, the Board relied on the fact that the appellant’s STRs do not
document any
personal assault. The Board stated that the “[r]ecords show that the [v]
eteran was married and had
children during her period of service”; that the appellant never ”
instigated proceedings against her
11

alleged attacker”; and that there was no notation that her pregnancy was
the result of sexual assault;
therefore, “the evidence does not support the assertion that she was
sexually assaulted by the one
who fathered the child.”
R. at 21-23. The Court is not persuaded by the Board’s reasoning.
Although the appellant’s service medical records do not report that her
pregnancy was the result of
personal assault, they do not contradict her claimed in-service stressor
that she was physically and sexually abused by her husband. Buczynski v. Shinskei, 24 Vet.App. 221, 224 (2011) (“When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.”); see Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging VA Adjudication Procedures Manual’s recognition that, “[b]ecause assault is an extremely personal and sensitive
issue, many incidents of personal assault are not officially reported”).
There is no medical reason why a doctor would be expected to comment on how a woman became pregnant, especially if the father of the child is her husband, making it less likely that the appellant’s medical records would report assault. See Buczynksi, 24 Vet.App. at 224. The Court finds no more availing the Secretary’s argument that the Board “appears to have misstated its intended finding” and “should be reasonably read to relate its finding that the only evidence from the same . . . period [as the alleged in-service
abuse] leans toward a finding that [the a]ppellant was trying to become
pregnant by her husband.”
Secretary’s Brief (Br.) at 23 n.10 (emphasis in original). Although the
appellant’s medical records
do not directly prove that the appellant was sexually assaulted by her
husband, the Board cannot
dismiss the appellant’s assertions that she was sexually and
physicallyassaulted, simply because she
asserts it was her husband who assaulted her. Therefore, the Board’s
statement of reasons and bases
is inadequate to enable this Court to perform judicial review. See 38 U.S.
C. § 7104(d)(1); see also
Allday and Gilbert, both supra.
Because the Board provided an inadequate statement of reasons and bases
for its conclusions
that the appellant’s account of her in-service physical and sexual assault
was not credible, failed to
address evidence regarding behavioral changes, and relied on the lack of
evidence in the appellant’s
service medical records, the Court will vacate the Board’s findings and
remand the matter for further
proceedings. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007); Tucker v. West,
11 Vet.App. 369, 374 (1998) (“[W]here the Board has incorrectly applied
the law, failed to provide
an adequate statement of reasons or bases for its determinations, or where
the record is otherwise
12

inadequate, a remand is the appropriate remedy.”).

B. Duty To Assist
1. Corroborating In-Service Stressor
The Secretary has a duty to assist pursuant to 38 U.S.C. § 5103A(a),
under which he must
make “reasonable efforts to assist a claimant in obtaining the evidence
necessary to substantiate the
claimant’s claim for a benefit under a law administered by the Secretary.”
If, however, the evidence
obtained indicates that there is no reasonable possibility that further
assistance would substantiate
the claim, “VA will discontinue providing assistance in obtaining evidence
for a claim.” 38 U.S.C.
§ 5103A(a); see Wensch v. Principi, 15 Vet.App. 362, 368 (2001) (holding
that when there is
extensive factual development in a case that indicates no reasonable
possibility that any further
assistance would aid the appellant in substantiating his claim, the
Veterans Claims Assistance Act of 2000 (VCAA) does not apply).
Here, the Board found that VA had fulfilled the duty to assist because it ”
had made reasonable efforts to obtain any pertinent records as well as all relevant records adequately identified by the [v]eteran.” R. at 9. The Board continued by explaining that VA sent the appellant a PTSD
questionnaire “asking for information or evidence other than service
records or evidence of behavior changes that may constitute credible supporting evidence of an in-service stressor.” Id.
The appellant argues that the Board failed in its duty to assist because
the RO should have requested records from VA psychiatric treatment at the Buffalo and Batavia VAMCs. Appellant’s Br. at 12. She asserts that the post-July 2007 treatment records are relevant because they might “contain findings that would confirm the in-service assault bythe [a]ppellant’s former husband.” Id.
at 13. The Secretary responds that “given that the Board rejected [the a]
ppellant’s claims of having suffered personal assault in service, there is no reason to believe that
treatment records dated after July 2007 would have any tendency to substantiate her claim.” Secretary’s Br. at 10-11. After finding error in the Board’s assessment of the appellant’s credibility, the Court disagrees with the Secretary.
In this case, the appellant is missing corroboration of her in-service
stressor to substantiate her PTSD claim. Medical opinion evidence can by submitted for use in determining whether the occurrence of a stressor is corroborated. See Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir.
13

2011). In its decision, the Board discounted all PTSD diagnoses because
they were based on
statements made by the appellant. R. at 22. Therefore, if the medical
records identified by the
appellant provide an opinion about her in-service stressor, such as the
record of the doctor
commenting on the family’s statements that the appellant’s behavior
changed after her first period
of service, the records might corroborate of the appellant’s in-service
stressor. See Menegassi, 638
F.3d at 1382. Additionally, as noted above, the Court has vacated the
Board’s determination that the appellant was not credible in reporting her in-service physical and sexual assault. Therefore, the Board erred in dismissing all the PTSD diagnoses because they were based on statements by the appellant. See id.
Consequently, the Board erred by finding that it
fulfilled its duty to assist. 38 U.S.C. § 5103A(a).
Furthermore, this Court has stated that “[i]f in the process of
identifying these potential
sources [under §3.304 (f)(5)], a claimant provides the name or names of
any persons who allegedly
perpetrated the assault or the names of any potential witnesses, the
Secretary’s reasonable efforts to
assist, as required under section 5103A(a), may also include attempting to
assist the claimant in
obtaining statements from these persons.” Forcier v. Nicholson 19 Vet.App.
414, 422 (2006) (citing
Patton, 12 Vet.App. at 280-81).
The Court notes that on at least two occasions, the appellant provided
names of people to
whom she contemporaneously reported her in-service stressors. See R. at
378, 404-05. During her
June 2008 testimony before the RO, while explaining the April 1983 assault
at the softball field at
Portsmouth Naval Hospital, she identified the month and yearof the attack,
and the name of the chief
to whom she described the incident. See R. at 378. When she described
being beaten by her
husband for not hiding his alcohol well enough, she explained that she
told her husband’s petty
officer and his wife. See R. at 404-05. Based on these descriptions,
including the names and ranks
of the individuals who might have knowledge of the event, the Board erred
in concluding that the
Secretary satisfied his duty to assist where he made no effort to help the
appellant corroborate her
stressor. See Forcier, 19 Vet.App. at 422 (finding the duty to assist had
been satisfied where the
Board had ordered the RO to “pursue all available avenues to assist [the
veteran] in locating anyone
identified for a statement regarding the claimed incident, including the
two sergeants he had
identified by name”).
14

The Court’s analysis does not end with a conclusion that the Board
committed error; rather,
the Court is required to determine whether the appellant was prejudiced by
the Board’s error.
38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the
rule of prejudicial error”);
Shinseki v. Sanders, 556 U.S. 396, 414 (2009). Here, the Secretary argues
that any error in not
seeking additional records is nonprejudicial because the appellant lacks
credible evidence of an in-
service stressor or event to which such disability could be linked.
Secretary’s Br. at 10. The Court
disagrees. The Court has vacated the Board’s credibility determination.
With the Secretary’s
assistance, the appellant may have been able to provide credible evidence
of her in-service stressor,
therefore, the error is prejudicial.
2. Providing Medical Examination
The Secretary’s duty to assist requires that VA provide a medical
examination to a claimant
when there is (1) competent evidence of a current disability or persistent
or recurrent symptoms of
a disability; (2) evidence establishing that an event, Previous HitinjuryNext Hit, or disease
occurred in service, or for
certain diseases, manifestation of the disease during an applicable
presumptive period for which the
claimant qualifies; and (3) an indiction that the disability or persistent
or recurrent symptoms of the
disability may be associated with the veteran’s service or with another
service-connected disability;
but (4) insufficient competent medical evidence on file for the Secretary
to make a decision on the
claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet.App. 79, 81 (
2006); 38 C.F.R.
§ 3.159(c) (4)(i) (2012). “The Board’s ultimate conclusion that a medical
examination is not
necessary pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary,
capricious, an abuse of
discretion, or otherwise not in accordance with law’ standard of review.”
McLendon, 20 Vet.App.
at 81 (quoting 38 U.S.C. § 7261(a)(3)(A)).
In Menegassi, 638 F.3d at 1382, the U.S. Court of Appeals for the Federal
Circuit (Federal
Circuit) held that under § 3.304(f)(5), “medical opinion evidence may be
submitted for use in
determining whether the occurrence of a stressor is corroborated.” See
also Patton, 12 Vet.App. at
280 (rejecting the requirement that “something more than medical nexus
evidence is required to
fulfill the requirement of ‘credible supporting evidence'” in personal-
assault cases (quoting Cohen,
10 Vet.App. at 145)). Accordingly, the Federal Circuit held that a
favorable medical opinion
diagnosing PTSD must be weighed against all other evidence of record for
purposes of determining
15

whethera claimed in-service sexual assault has been corroborated.
Menegassi, 638 F.3d at 1382 n.1.
Here, the Board found that the appellant was not entitled to an
examination because the
“evidence of record does not show a verified in[-]service stressor or any
evidence of in[-]service
psychiatric complaints, treatments or diagnosis.” R. at 9-10. The Board
found that any medical
opinion linking a currently diagnosed psychiatric disorder, to include
PTSD, to service would be
“speculative at best.” Id. The appellant argues that “[a]lthough a
verified in-service stressor is
required for an award of PTSD service connection . . . all that is
necessary to satisfy the pertinent
requirement for the provision of a VA examination is evidence of ‘an event,
Previous HitinjuryNext Document, or disease in
service.'” Appellant’s Br. at 13 (quoting 38 C.F.R. § 3.159(c)(4)(i)(B)).
She further argues that her
brother and sister-in-law both stated that her behavior changed during her
first period of service;
sincestatementsmadebyfamilymembersdocumentingbehaviorchangesduringservicec
to verify an in-service assault, then she has submitted evidence that an
event happened in service.
Appellant’s Br. at 14. The Secretary argues that an examination is not
warranted because the Board
found that a medical examination “would not provide any reasonable
possibility of assisting her in
substantiating her claim.” Secretary’s Br. at 6. The Court disagrees.
As noted above, the Board erred when it failed to provide an adequate
statement of reasons
and bases for rejecting both family statements about the change in her
behavior and the appellant’s
assertions that during service she was physically and sexually assaulted
by her husband. Therefore,
after properly determining the probative value of the appellant’s and her
family members’ statements
about her in-service physical and sexual assault, the Board should
reevaluate the need for a VA
medical examination. See McLendon, 20 Vet.App. at 81-86 (describing the
circumstances in which
the Secretary must provide a VA medical examination and noting that the
nexus prong is a “low
threshold”).
C. Other Arguments
Based on the Court’s disposition of this case, the Court finds that it is
not necessaryto address
any of the appellant’s additional arguments. See Best v. Principi, 15 Vet.
App. 18, 20 (2001) (per
curiam order) (holding that “[a] narrow decision preserves for the
appellant an opportunity to argue
those claimed errors before the Board at readjudication, and, of course,
before this Court in an
appeal, should the Board rule against him”).
16

On remand,the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand the
Board must consider additional
evidence and argument in assessing entitlement to benefit sought). The
Court has held that “[a]
remand is meant to entail a critical examination of the justification for
the decision.” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance with
38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious
treatment” of claims remanded
by the Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s February 9, 2011, decision is VACATED and the matter
is REMANDED for
further proceedings consistent with this decision.
DATED: September 14, 2012
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
17

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