Veteranclaims’s Blog

September 20, 2012

Single Judge Application, 38 C.F.R. 3.304(f)(5); Personal Assault; Behavioral Changes; Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011):

Excerpt from decision below:
“38 C.F.R. § 3.304(f)(5), which states:
If a [PTSD] claim is based on in-service personal assault, evidence from
sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression . . . ; or unexplained economic or social behavior changes. . . . VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5).

In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) 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 for ‘credible supporting evidence'” in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). 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 whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0376
ROBERT R. WAYNE, APPELLANT,
V.
ERIC K. SHINSEKI,

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, Robert R. Wayne, appeals through counsel
an October
19, 2009, Board of Veterans’ Appeals (Board) decision that denied his
claim for entitlement to
service connection for post-traumatic stress disorder (PTSD). Record of
Proceedings (R.) at 3-11.
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. Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
vacate the October 19, 2009,
Board decision and remand the matter for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Air Force from October
1962 to June 1965.
R. at 574. The present appeal stems from the appellant’s February 2003
claim for entitlement to
service connection for PTSD resulting from an alleged in-service sexual
assault that occurred on
August 5, 1964. R. at 653-70, 713-28. The appellant’s service medical
records (SMRs) are silent
regarding the claimed assault. However, an SMR from that night shows that
the appellant reported
to sick call at 0300 hours with a laceration over his right eye, which
required sutures, and a small
laceration inside his mouth. R. at 669. Although the SMR contains a note
that the appellant fell in

his room, the appellant has stated that he did not tell the doctors the
truth because his attackers had
threatened to kill him if he reported the incident. R. at 30, 116, 141,
169, 213, 667.
The appellant’s medical records show that in July1966 he reported a “long
historyof nervous
problems associated with chest pain and weight gain.” R. at 630. He was
treated at the Iroquois
Center for Human Development for severe depression and anxiety from June
1976 through
December 1979. R. at 502, 504. Treatment records from 1993 through 1994
also show that he
received treatment for major depressive disorder. R. at 310-44. The
appellant was diagnosed with
PTSD from military sexual trauma in 2002 and received individual
psychotherapy at the Topeka,
Kansas, VA Medical Center. R. at 687-92, 701-04, 708-12; see also R. at 40-
137, 255-86. Although
the appellant has stated that he did not know the identity of his
attackers (R. at 30, 170, 220), an
April 2007 VA psychiatrist’s note includes a notation that the “[patient]
found out that his attacker
from the military is dead and has stopped feeling like he needs to have a
gun in his pick up.” R. at
95.
In 2003, the appellant submitted lay statements from his wife and daughter
who related that
the appellant told them about the in-service assault in, approximately,
1981. R. at 663-65, 725-27.
The appellant’s claim was denied in October 2004, then he initiated an
appeal to the Board. R. at
204-07, 233-36, 237-49, 287-98. In July 2007, the Board remanded the
matter for additional
evidentiary development, including a VA PTSD examination. R. at 155-60.
The Board’s remand
instructions included the direction that, if the appellant is diagnosed
with PTSD,
the examiner is asked to review the veteran’s complete case file, and if
feasible, . . .
provide an opinion as to whether or not the veteran’s behavior after
August 5, 1964,
is consistent with a reaction to a sexual assault. (The Board notes that
the veteran’s
military performance reports showed improvement in the period after the
date of the
alleged assault, and that the veteran has averred that he was repeatedly
counseled by
his sergeant and threatened with formal disciplinary proceedings.)
R. at 158-59.
The appellant underwent a VA PTSD examination in July 2008, wherein he
reported the
details of the in-service assault, including that he did not know the
identity of his attackers. R. at 29-
35. The examiner diagnosed the appellant with “[PTSD], chronic, military
sexual trauma; major
depressive disorder, severe, with psychotic features (due to [PTSD]).” R.
at 34. The examiner noted
that she was asked to opine “whether the appellant’s level of military
performance after August 5[,
2

1964,] could be consistent with PTSD ([m]ilitary [s]exual [t]rauma)” and
provided the following
response:
Symptoms patient [is] experiencing [are] consistent with PTSD (military
sexual
trauma)[.] [H]e has been treated for these symptoms in VA bydifferent
providers for
years. According to [the Diagnostic and Statistic Manual for Mental
Disorders (4th
ed. 1994) (DSM-IV),] PTSD symptoms can appear[] not necessarily after
trauma.
PTSD can havedelayed onset when symptoms could appearlater after stressful
event
happened. Mr. Wayne[‘s] PTSD symptoms are caused by military sexual trauma.
R. at 35.
In its October 19, 2009, decision here on appeal, the Board denied the
appellant’s claim of
entitlement to service connection for PTSD. R. at 3-11. The Board
acknowledged that there was
evidence of a diagnosis of PTSD and a link, established bythe recent
medical examination, between
the appellant’s current symptoms and an in-service sexual trauma. R. at 11.
The Board denied the
claim,however,becauseit foundnocrediblesupportingevidencethattheclaimedin-
servicestressor
occurred. Id. This appeal followed.
II. ANALYSIS
The appellant argues that the Board’s finding that there is no credible
supporting evidence
that the claimed in-service stressor occurred is clearly erroneous and
requires reversal. Appellant’s
Brief (Br.) at 9-16. Alternatively, the appellant argues that remand is
warranted for the Board to
provide an adequate statement of reasons or bases for its decision. Id. at
16-19. The appellant also
argues, in the alternative, that a remand is warranted for VA to fulfill
its duty to assist. Id. at 19-20.
The Secretary concedes that a remand is warranted for VA to fulfill its
duty to assist and requests
that the Court not address the appellant’s argument for reversal.
Secretary’s Br. at 6-9. In the
alternative, the Secretary argues that the Board’s decision is not clearly
erroneous and is supported
by an adequate statement of reasons or bases. Id. at 9-14.

A. Applicable Law
To establish service connection for PTSD, a claimant must present (1)
evidence of a current
diagnosis of PTSD; (2) “a link, established by medical evidence, between
current symptoms and an
in-service stressor”; and (3) “credible supporting evidence that the
claimed in-service stressor
occurred.” 38 C.F.R. § 3.304(f) (2011). Because “veterans face unique
problems documenting their
3

claimed stressor in personal assault cases,” the Secretary has “‘provided
for special evidentiary-
development procedures’ in those cases.” Bradford v. Nicholson, 20 Vet.App.
200, 204 (2006)
(quoting Patton v. West, 12 Vet.App. 272, 280 (1999)). These special
procedures are detailed in 38 C.F.R. § 3.304(f)(5), which states:
If a [PTSD] claim is based on in-service personal assault, evidence from
sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from . . . mental health counseling centers . . . or physicians . . . and statements from
family members . . . . Evidence of behavior changes following the claimed
assault is one type of relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression . . . ; or unexplained economic or social behavior changes. . . . VA may submit any evidence
that it receives to an appropriate medical or mental health professional
for an opinion
as to whether it indicates that a personal assault occurred.
38 C.F.R. § 3.304(f)(5).
In Previous HitMenegassiNext Hit v. Previous HitShinsekiNext Hit, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S.
In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) 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 for ‘credible supporting evidence'” in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). 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 whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1.

The Court reviews the Board’s factual determination as to the sufficiency
of corroborative
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
4

conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364,
395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The Board must also 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).
B. The Appellant’s Argument for Reversal
This Court has held that “reversal is the appropriate remedy when the only
permissible view
of the evidence is contraryto the Board’s decision.” Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004)
(citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). Remand is the
appropriate remedy “where 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 inadequate.”
Tucker v. West, 11 Vet.App.
369, 374 (1998). Because the appellant has requested reversal as the
remedy in this case, and only
argues alternatively for remand, the Court will address the appellant’s
arguments for reversal first.
See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (
holding that “if the proper
remedy is a remand, there is no need to analyze and discuss all the other
claimed errors that would
result in a remedy no broader than a remand” (emphasis added)).
The appellant argues that the Board’s finding that there is no credible
supporting evidence
that the claimed in-service stressor occurred is clearly erroneous because
the 2008 VA medical
examiner made a contrary finding. Appellant’s Br. at 10. The Secretary
attempts to refute this
argument and incorrectly argues that “[a]n opinion by a mental health
professional based on
post[]serviceexamination ofa claimant cannot be used to establish
occurrence of in-servicestressor,
for purposes of service connection for PTSD.” Secretary’s Br. at 13 (
citing Cohen, 10 Vet.App. at
128). Although a mental-health professional’s postservice examination
generally cannot be used to
establish the occurrence of an in-service stressor, Cohen, 10 Vet.App. at
145, the Court has found
5

the rule in Cohen not operative where the stressor arises from a personal
assault. Patton,
12 Vet.App. at 280. Even assuming there was any doubt as to the
applicability of Cohen in sexual
assault cases, the Federal Circuit’s recent decision in Menegassi, 638 F.
3d at 1382, clearly held that the Secretary’s regulation, 38 C.F.R. § 3.304(f)(5), permits medical opinion evidence to corroborate an in-service stressor. See also 67 Fed. Reg. 10,330 (Mar. 7, 2002) (stating that “[o]pinions given by [medical or mental health] professionals are not binding upon VA, but instead are weighed along with all the evidence provided”).

NotwithstandingtheSecretary’serroneous statementofthelaw,theCourt doesnot
agreewith
the appellant’s interpretation of the 2008 medical examiner’s opinion and
therefore reversal is not
warranted. See Gutierrez and Johnson, both supra. The appellant argues
that the examiner
“corroborated the assault by stating that [the appellant’s] symptoms,
particularly his flashbacks and
nightmares, were consistent with such an assault.” Id. at 15 (citing R. at
34). While it is true that
the examiner attributed the appellant’s current symptoms to the alleged in-
service assault, the
examiner did not answer the salient question posed, i.e., whether the
appellant’s behavior following
August 5, 1964, is consistent with a reaction to a sexual assault. R. at
159. In this regard, the Court
notes that both the examiner and the Board incorrectly stated that the
examiner was asked to opine
“whether the [v]eteran’s level of military performance after the date of
the alleged rape could be
consistent with his having experienced the sexual trauma.”1
R. at 8; see also R. at 35. However, as
noted above, the Board’s 2007 remand instructions posed a broader question,
i.e., “whether or not
the veteran’s behavior after August 5, 1964, is consistent with a reaction
to a sexual assault.” R. at
158-59; see Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding that a
remand by the Board
confers on the veteran, as a matter of law, the right to compliance with
the remand orders, and the
Board itself errs when it fails to ensure compliance with the terms of
such a remand). This
distinction is significant because a “deterioration in work performance”
is only one example of
behavior changes that may constitute credible evidence of the stressor.
See 38 C.F.R. § 3.304(f)(5).
The Court further notes that not only did the examiner misconstrue the
question she was
asked, but she also failed to answer even this narrow question. See R. at
35.
1
6

The Court therefore finds that the examiner’s failure to answer the
question whether the
appellant’s behavior following August 5, 1964, is consistent with a
reaction to a sexual assault
renders the report inadequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (
2007) (holding that
“once the Secretary undertakes the effort to provide an examination when
developing a service-
connection claim, . . . he must provide an adequate one”); see also Nieves-
Rodriguez v. Peake,
22 Vet.App. 295, 301 (2008) (noting that “a medical examination report
must contain not only clear
conclusions with supporting data, but also a reasoned medical explanation
connecting the two”);
Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (stating that the Board
may not assess the
probative value of “a mere conclusion by a medical doctor”). When a report
is confusing or
incomplete, the Board should remand the case for clarification or obtain a
new report. See Bowling
v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000)
when holding that the Board
has a duty to remand a case “[i]f further evidence or clarification of the
evidence or correction of a
procedural defect is essential for a proper appellate decision”).
Accordingly, because the VA
medical examiner’s report is inadequate, the Court finds that the
appropriate remedyis to remand the
matter to the Board for further development. See Barr, Tucker, and Stegall,
all supra.
C. The Board’s Statement of Reasons or Bases
1. The 2008 Examiner’s Report
The Court notes that even if the VA medical examiner had opined, one way
or the other,
whether the appellant’s behavior was consistent with an in-service assault,
the Board would not have
been bound by the examiner’s determination. Rather, as noted by the
Federal Circuit in Menegassi,
“the submission of a medical opinion, pursuant to 38 C.F.R. § 3.304(f)(5),
does not preclude the
Board from making a factual determination regarding the weight to be given
that opinion.” 638 F.3d
at 1382 n.1.
In the instant case, the Board attempted to rehabilitate the examiner’s
opinion by stating that
she “indirectly answered th[e] question [posed] bynoting that the [v]
eteran’s (current) symptoms are
consistent with PTSD, and not[ing] that the DSM[-]IV PTSD symptoms can
appear not necessarily
after trauma, but can have delayed onset.” R. at 8-9 (emphasis added).
This is problematic for two
reasons. First, the Court is unable to understand how the examiner’s
general statement that PTSD
symptoms can have “delayed onset” answers the true question that was posed,
i.e., “whether or not
7

the veteran’s behavior after August 5, 1964, is consistent with a
reaction to a sexual assault.” R. at
159. Second, the Board’s discussion of the examiner’s report stopped short
of drawing any
conclusion whether it corroborated the in-service stressor, which was part
of the purpose for the
examination. Hence, even assuming the Court did not find the examiner’s
report inadequate, the
Board’s statement of reasons or bases fails to provide an adequate
discussion of the probative weight
of the doctor’s opinion for the Court to review. See Hensley v. West, 212
F.3d 1255, 1263 (Fed. Cir.
2000) (stating that “appellate tribunals are not appropriate fora for
initial fact finding”); Owens v.
Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible
for assessing the
credibility and weight of evidence and that the Court may overturn the
Board’s decision only if it is
clearly erroneous); see also Allday, Caluza, and Gilbert, all supra.
2. The Appellant’s Lay Statements
The Court will also address the Board’s discussion of the appellant’s lay
evidence because
it necessarily relates to any subsequent medical opinion that is based
upon those laystatements. See
Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) (“[R]eliance on a
veteran’s statement renders a
medical report incredible only if the Board rejects the statements of the
veteran.”);
Kowalski v. Nicholson,19 Vet.App. 171, 179-80 (2005) (holding that the
Board may not disregard
a medical opinion solely on the rationale that the medical opinion was
based on a history given by
the veteran); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (stating that
Board may reject a
medical opinion based on facts previously found to be inaccurate); see
also Buchanan v. Nicholson,
451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that Board may not reject a
veteran’s lay testimony
merely because it is not corroborated by contemporaneous medical records).
Undoubtedly, as the
finder of fact, it is the Board’s province to determine the credibility
and probative weight of the
evidence before it. Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005
); Owens, supra. Here,
the Board noted that there was an inconsistency between the appellant’s
statements that he did not
know the identity of his attackers, and “elsewhere in the record, where he
indicates that he learned
that his assailant had died, so he no longer needed to carry a gun.” R. at
10. The Board then found
that “this sort of inconsistency regarding what he knew leads the Board to
find a lack of credibility.”
Id. Without more, the Court is unable to discern whether the Board’s
credibility finding is limited
solely to whether the appellant knew the identity of his attackers, or
whether the Board has
8

discounted the appellant’s lay statement’s entirely based on this single
notation in a medical record.
Hence, on remand, the Board must provide a clearer statement regarding its
assessment of the
appellant’s layevidence and provide an adequate statement of reasons or
bases for its rejection of any
such favorable evidence. See Allday, Caluza, and Gilbert, all supra.
D. The Appellant’s Remaining Arguments
Because the Court has determined that remand is the appropriate remedy,
the Court will not
at this time address the remaining arguments and issues raised bythe
appellant. See Best v. Principi,
15 Vet.App. 18, 20 (2001). “A narrow decision preserves for the appellant
an opportunity to argue
those claimed errors before the Board at the readjudication, and, of
course, before this Court in an
appeal, should the Board rule against him.” Id. 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); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (
per curiam order). 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 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 October 19, 2009, Board decision is VACATED and the matter is
REMANDED for
further proceedings consistent with this decision.
DATED: July 18, 2011
Copies to:
Katy S. Clemens, Esq.
VA General Counsel (027)
9

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