Veteranclaims’s Blog

July 30, 2017

Molitor v. Shulkin, No. 15-2585(Argued March 30, 2017 June 1, 2017); Personal Assault; PTSD; VA Duty Collaborating Servicemember Records; G.C. Precedent Opinion 05-14;

Excerpt from decision below:

“This matter was referred to a panel of the Court, with oral argument, to address the circumstances under which the duty to assist requires VA, in a claim for service connection for a psychiatric disorder, to attempt to obtain records of servicemembers other than the claimant to aid in corroborating a claimed personal assault. The Court holds that, in accordance with VA General Counsel Precedent Opinion 05-141 (G.C. Precedent Opinion 05-14 or the G.C. opinion), when a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts. Because the Board did not do so here, the Court will set aside the May 12, 2015, Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision.
1 The General Counsel issued this opinion on August 12, 2014, and amended it, during this appeal, on January 5, 2017.”

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 15-2585
JACLYN R. MOLITOR, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued March 30, 2017 June 1, 2017)
Livhuwani Ndou, with whom Glenn R. Bergmann, both of Bethesda, Maryland, were on the brief for the appellant.
Shereen M. Marcus, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; and Christopher W. Wallace, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and BARTLEY and GREENBERG, Judges.
BARTLEY, Judge: Veteran Jaclyn R. Molitor appeals through counsel a May 12, 2015, Board of Veterans’ Appeals (Board) decision denying service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). Record (R.) at 2-18. This matter was referred to a panel of the Court, with oral argument, to address the circumstances under which the duty to assist requires VA, in a claim for service connection for a psychiatric disorder, to attempt
to obtain records of servicemembers other than the claimant to aid in corroborating a claimed personal assault. The Court holds that, in accordance with VA General Counsel Precedent Opinion 05-141 (G.C. Precedent Opinion 05-14 or the G.C. opinion), when a claimant adequately identifies
relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts. Because the Board did not do so here, the Court will set aside the May 12, 2015, Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision.
1 The General Counsel issued this opinion on August 12, 2014, and amended it, during this appeal, on January
5, 2017.
2
I. FACTS
Ms. Molitor served on active duty in the U.S. Army from November 1985 to January 1987,
when she was released from active duty due to pregnancy. R. at 2881. She was a military police
officer (MP), serving in Germany from April 1986 to January 1987. R. at 2881-82.
In December 2003, Ms. Molitor filed a claim for service connection for PTSD due to
military sexual trauma (MST). R. at 3508-09. She underwent a VA PTSD examination in June
2004 and the examiner noted that prior psychiatric records reflected reports of being sexually
abused as a child and severe depression since a work-related back injury in 1990. R. at 3222-26.
Ms. Molitor complained of poor memory for dates and sequences and was deemed to be a poor
historian. R. at 3222-23. She laughed and did not exhibit distress when describing in-service
stressors—including repeatedly being propositioned for sex, being flashed by a fellow MP, and
having her breasts grabbed by another MP—and denied being pressured or coerced into sexual
activity against her will. R. at 3228-29. Following a mental status examination and diagnostic
testing, the results of which the examiner described as containing “a slight suggestion of
exaggeration, possibly as a plea for help,” the examiner diagnosed PTSD due to childhood trauma,
probable dissociative identity disorder, recurrent major depressive disorder, borderline personality
disorder, and alcohol/drug dependence in remission. R. at 3252.
A VA regional office (RO) denied service connection for PTSD in June 2004 and May
2005, R. at 3159-61, 3217-20, and the veteran timely disagreed with those decisions, R. at 3908.
In the meantime, Ms. Molitor indicated on a November 2004 Vet Center intake form that
she was sexually assaulted in service during an MP initiation/hazing ceremony and did not report
the incident because of fear of retribution from her assailants. R. at 170. In a March 2005 letter,
her Vet Center counselor, Cindy Macaulay, explained that the veteran had repressed memories of
the in-service sexual assault and those memories, though “fragmented and incomplete,” were
returning with counseling. R. at 3211. Ms. Macaulay also stated that it was understandable that
the veteran had not reported the incident because the alleged assailants were MPs. Id. In an
October 2005 letter, Ms. Macaulay acknowledged that the veteran’s other psychiatric diagnoses,
history of childhood sexual abuse, and post-service life events complicated the case, but opined
that Ms. Molitor’s recent reporting of the in-service assault was “normal” and did not diminish the
veracity of that report. R. at 3148. Ms. Macaulay indicated that the veteran was truly fearful of
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retaliation from the assailants and opined that it was as likely as not that the veteran’s PTSD was
related to service. Id. Attached to that letter was a sexual trauma markers worksheet, which
included the approximate date of the claimed assault (“Around February of 1986”), the location
(“Frankfurt, Germany[,] Gibbs Kasem”), her unit (“284th MP Company, 5th Battalion”), and the
names of several witnesses (“Private Babb[,] Lt. Nelson[,] Private Jones (a female)[,] and Lt.
Horvath (female)”). R. at 3149.
In November 2005, Ms. Molitor submitted a statement to VA in which she provided further
details of the assault. R. at 3145-46. She stated that she was raped at gunpoint by at least five
MPs during training and that she managed to fight back and injure a sergeant during the attack. R.
at 3146. She explained that she did not report the rape because she was afraid of retaliation and
that, until recently, she repressed memories of the incident. Id.
Later that month, the RO issued a Statement of the Case (SOC) continuing to deny the
claim, R. at 3126-44, and Ms. Molitor perfected an appeal to the Board. She subsequently
submitted another statement in which she asserted that, sometime after the MP initiation incident,
she was raped by three MPs in the shower. R. at 3034.
At a September 2006 Board hearing, Ms. Molitor testified that she was sexually assaulted
by four or five soldiers during an MP initiation in Germany. R. at 2956. She indicated that she
“beat the hell out of the sergeant” in the group and was warned that she would be killed if she
reported the incident. Id. Ms. Macaulay testified that the veteran’s memories of the assaults “came
clear in bits,” that her behavior during treatment and evaluation was a means of coping with the
childhood and in-service assaults, and that her symptoms of silence, repressed memories,
dissociation, multiple personalities, and acting out were consistent with those assaults. R. at 2959-
60.
In July 2007, the Board ordered the first of several remands for further development. R. at
2871-76. While VA was conducting that development, Ms. Macaulay submitted a January 2010
letter in which she explained that the veteran had been hospitalized numerous times over the years
and had been given medication and electroconvulsive therapy that “could certainly lead to
confusion, memory problems, and being a poor historian and advocate for herself.” R. at 379. The
next month, Ms. Molitor underwent a VA PTSD examination and the examiner stated that the
veteran’s denial at entrance to service of prior drug and alcohol use and mental illness, despite
evidence of such in the record, called her credibility into question. R. at 392. The examiner
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reviewed the claims file for evidence of behavior changes and noted that there was no record of
in-service counseling, discipline issues, or decrease in work performance; she therefore concluded
that it was less likely than not that the veteran exhibited any change in behavior in service or shortly
thereafter that would be indicative of an in-service assault. R. at 392-94.
Later in February 2010, the RO issued a Supplemental SOC (SSOC) continuing to deny
service connection for PTSD, R. at 381-90, and, in June 2011, the Board remanded the claim once
more for additional development, R. at 352-59.
In April 2012, the VA Appeals Management Center (AMC) issued a formal finding that
the claimed in-service assaults could not be verified based on the information provided by the
veteran. R. at 309-11. The AMC noted that Ms. Molitor had alleged that the assault occurred in
Germany in February 1986, but she was not deployed there until April 1986, and that a review of
her service personnel and medical records did not reveal markers for sexual assault. R. at 310-11.
An August 2012 Vet Center record indicates that Ms. Molitor had “cut way back on her
meds” and was now remembering relevant events that happened while she was in the military. R.
at 140. Two months later, she submitted a statement to VA describing claimed in-service assaults
in more detail. R. at 287. Specifically, she stated that another MP, Specialist Simms, led her to
the MP training area, where she saw Lieutenants Nelson and Horvath hiding in the bushes behind
five or six soldiers, including “Sgt. Thomas or Sgt. Thompson” and Private Babbs. Id. She
indicated that the soldiers undressed her and raped her and she fought back and injured the
sergeant. Id. Ms. Molitor also asserted that she was raped again in the shower several months
later, also in Germany, by three men she did not know. Id. She indicated that she did not report
either incident because she feared for her safety. Id. Finally, the veteran reported that she met a
new female MP in Germany in 1986, Private Lutz, who had a look in her eyes that made Ms.
Molitor believe that Private Lutz had also been raped. Id. Ms. Molitor indicated that Private Lutz
committed suicide in service and asked VA to check her file, as well as the files of three other
women she served with in Germany (Privates Angel, Jones, and Wenzel), for evidence of sexual
assault or claims for residuals of MST. Id.
The Board remanded the claim again in December 2012, this time to provide Ms. Molitor
with another hearing. R. at 268-72. The ordered hearing was conducted in April 2013, and Ms.
Molitor’s service organization representative argued that the discharge for pregnancy was a marker
of sexual assault because “the military can accommodate a pregnancy.” R. at 4254. Ms. Molitor
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described the initiation rape incident again and stated that without explanation she was transferred
to another squadron shortly afterward. R. at 4257-60. She stated that she asked for her release
from service after Private Lutz killed herself. R. at 4268. She also indicated that she had a “bad
vertebra” that she had “no doubt” was related to the in-service shower rape. R. at 4271. Ms.
Macaulay testified that she believed that Ms. Molitor had been raped in service because of her
detailed accounts of the incident and her consistency in reporting those details during counseling.
R. at 4275. Ms. Macaulay explained that the inconsistencies that VA perceived in the veteran’s
reports were the result of her “uncover[ing] more and more” details, rather than changing her story.
R. at 4276. Ms. Macaulay further testified that, in her professional judgment, the veteran’s
presentation was consistent with the incidents she described. R. at 4281. After the hearing, Ms.
Molitor submitted a sexual trauma markers worksheet that described the initiation and shower
assaults. R. at 254-57.
During May 2013 counseling, the veteran told Ms. Macaulay that she “lied to [a VA
psychologist] about ‘everything’ and is not sure why she does this.” R. at 131. Later that month,
she told Ms. Macaulay that one of her personalities, Jake, sabotaged her recent Board hearing. Id.
In August 2013, the Board remanded the claim for another VA examination, R. at 207-14,
which took place in January 2014, R. at 106-13. The examiner found Ms. Molitor not credible
because her report of MST was “dramatic and inconsistent with what she has reported to other
providers,” was “based on her own idea of what the ‘pieces’ of her memories might mean,” and
appeared to be “an unlikely series of events.” R. at 106. The examiner diagnosed borderline
personality disorder, but no other mental disorders. R. at 106-07. Later that month, the RO issued
an SSOC continuing to deny the claim. R. at 99-104.
In June 2014, the Board found the January 2014 VA examination inadequate and remanded
to obtain another examination. R. at 83-92. Ms. Molitor underwent the ordered examination the
following month, and the examiner stated that it was not possible to conduct a reliable diagnostic
assessment because of “significant over-reporting of [] actual psychological symptoms.” R. at 66.
The examiner also found the veteran not credible because objective testing reflected over-reporting
of symptoms, her mental health history “raise[d] skepticism,” and she had inconsistently reported
MST details over the years. Id. As a result, he did not diagnose any mental disorder. Id.
In December 2014, the Board sought a medical expert opinion to resolve the conflicting
diagnoses, R. at 47-50, which was provided by a VA psychologist in January 2015. R. at 31-41.
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The VA psychologist reviewed the claims file and determined that the record supported current
diagnoses only of borderline personality disorder and PTSD based on childhood stressors. R. at
31-37. She opined that both conditions preexisted service and were not aggravated or otherwise
related to claimed in-service stressors. R. at 37-38. She indicated agreement with the June 2004
VA examiner and noted no evidence of behavior changes in service or shortly thereafter. R. at 38-
39. She also described Ms. Macaulay’s treatment notes as “extremely cursory and incomplete”
and rejected her diagnosis of PTSD based on MST as not supported by the record. R. at 39-40.
In May 2015, the Board issued the decision currently on appeal, which denied service
connection for an acquired psychiatric disorder to include PTSD. R. at 3-21. As relevant here,
the Board found that VA had complied with its duties to notify and assist, but did not discuss the
veteran’s request for efforts to attempt to obtain records from fellow servicemembers. R. at 5-7.
Regarding the merits, the Board determined that the record lacked evidence of behavior changes
in service or shortly thereafter that may indicate MST. R. at 17-18. The Board also deemed the
veteran’s statements regarding the in-service sexual assaults not credible because they were
internally inconsistent and contradicted by other evidence of record, she inconsistently reported
the circumstances of a low back injury, and various VA examiners had found her to be unreliable
and to exaggerate symptoms. R. at 18-20. The Board discounted the Vet Center counselor’s
opinions because they were based on those non-credible statements, there was no indication that
the counselor reviewed the claims file, she did not provide adequate rationale for her conclusions,
and the VA examiners agreed that the Vet Center counselor’s observations were not supported by
the evidence of record. R. at 20-21. The Board instead accorded great probative weight to the
negative VA examiners’ opinions, which concluded that the veteran did not have PTSD or any
other psychiatric disorder related to service. Id. This appeal followed.
II. ANALYSIS
A. The Parties’ Arguments
Ms. Molitor argues, inter alia, that the Board provided inadequate reasons or bases for
finding that VA satisfied its duty to assist because VA did not attempt to obtain records from other
servicemembers she specifically identified, including one of her alleged assailants, that may aid in
corroborating the claimed in-service assaults. Appellant’s Brief (Br.). at 17-22. She asserts that
remand is warranted because G.C. Precedent Opinion 05-14 required VA to attempt to obtain those
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records or, at a minimum, required the Board to explain why VA did not undertake such efforts.
Id. at 19-22.
The Secretary responds that VA was not obligated to attempt to obtain such records, and
the Board was therefore not required to discuss the G.C. opinion, because Ms. Molitor did not
adequately identify relevant records from fellow servicemembers that may aid in corroborating the
claimed assaults. Secretary’s Br. at 24-27. The Secretary further argues that, notwithstanding that
lack of adequate identification, the G.C. opinion makes clear that VA would have been statutorily
prohibited from obtaining and disclosing the requested records without written consent from the
affected servicemembers or a court order and that any further VA efforts in that regard would have
been unreasonable given the nature of the veteran’s request and the fact that she did not report the
assaults during service. Id. at 27-29.
Ms. Molitor counters that the Board, not the Secretary, was required to assesses whether
“reasonable efforts” to assist her included seeking written consent from the witnesses and assailant
she identified and that the Secretary’s argument that the duty to assist did not mandate such
development amounts to impermissible post hoc rationalization. Reply Br. at 2-5.
At oral argument, the Secretary additionally argued that “there is an ‘umbrella of credibility’
that hangs over all of the prongs of the duty to assist” and that the Board, in finding the veteran
not credible, adequately explained why no further assistance was provided in this case. Oral
Argument at 30:31-50, 32:20-55.
For the reasons that follow, the Court agrees with Ms. Molitor that the Board provided
inadequate reasons or bases for finding that VA satisfied its duty to assist in this case.
B. The Duty to Assist in Claims for Service Connection for PTSD
Based on In-Service Personal Assault
This case involves the VA General Counsel’s interpretation of intertwining and sometimes
conflicting federal statutes and regulations regarding VA’s concomitant duties to assist claimants
in developing their claims and to protect the privacy of all servicemembers’ records. Before
addressing the privacy issue, as set forth in G.C. Precedent Opinion 05-14, it is necessary to
understand VA’s unique legal framework for developing and adjudicating claims for service
connection for PTSD based on in-service personal assault.
Generally, a veteran is entitled to service connection for PTSD when the record before the
Secretary contains (1) a current medical diagnosis of PTSD, (2) credible supporting evidence that
the claimed in-service stressor actually occurred, and (3) medical evidence establishing a link
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between the claimed in-service stressor and the current symptoms of PTSD. See Cohen v. Brown,
10 Vet.App. 128, 138 (1997); 38 C.F.R. § 3.304(f) (2016). However, claims for service connection
for PTSD based on an in-service personal assault are governed by § 3.304(f)(5), which lowers the
evidentiary burden for corroborating the occurrence of an in-service personal assault stressor. See
Post-Traumatic Stress Disorder Claims Based on Personal Assault, 65 Fed.Reg. 61,132, 61,132
(Proposed Rule Oct. 16, 2000) (recognizing that veterans seeking service connection for PTSD
based on personal assault “may find it difficult to produce evidence to prove the occurrence of this
type of stressor” because “[m]any incidents of in-service personal assault are not officially
reported”); see also AZ v. Shinseki, 731 F.3d 1303, 1312-15 (Fed. Cir. 2013) (summarizing
evidence of the underreporting of personal assaults in the military). That section of the regulation
provides:
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 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. 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, panic
attacks, or anxiety without an identifiable cause; or unexplained economic or social
behavior changes. VA will not deny a [PTSD] claim that is based on in-service
personal assault without first advising the claimant that evidence from sources other
than the veteran’s service records or evidence of behavior changes may constitute
credible supporting evidence of the stressor and allowing him or her the opportunity
to furnish this type of evidence or advise VA of potential sources of such evidence.
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). With the enactment of § 3.304(f)(5) (originally § 3.304(f)(3)), “VA
codified its existing internal policies that provided for additional development assistance in claims
for PTSD based on personal assault,” Gallegos v. Peake, 22 Vet.App. 329, 335 (2008), including
“a special obligation to assist a claimant . . . in producing corroborating evidence of an in-service
stressor,” Patton v. West, 12 Vet.App. 272, 280 (1999).
Of course, VA is also bound in such cases by the general parameters of the duty to assist.
See 38 U.S.C. § 5103A(a)(1). For disability compensation claims, including claims for service
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connection for PTSD, the duty to assist includes making reasonable efforts to obtain relevant
records from VA or other Federal departments or agencies that have been adequately identified by
the claimant. 38 U.S.C. § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2)-(3) (2016). These records may
include, inter alia, non-military records and military and VA medical records. 38 U.S.C.
§ 5103A(c)(1); 38 C.F.R. § 3.159(c)(2)-(3). The duty to assist is not triggered if the claimant does
not adequately identify outstanding records or identifies records that are not relevant to the claim,
or if VA concludes that it would not be reasonable to attempt to obtain the identified records. See,
e.g., Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (“There can be no doubt that Congress
intended VA to assist veterans in obtaining records for compensation claims, but it is equally clear
that Congress only obligated the VA to obtain ‘relevant’ records.”); McGee v. Peake, 511 F.3d
1352, 1357 (Fed. Cir. 2008) (“Congress has explicitly defined the VA’s duty to assist a veteran
with the factual development of a benefit claim in terms of relevance.”); Loving v. Nicholson,
19 Vet.App. 96, 103 (2005) (explaining that section 5103A “require[s] that the claimant adequately
identify relevant records that the claimant wishes the Secretary to obtain”); Gobber v. Derwinski,
2 Vet.App. 470, 472 (1992) (“In connection with the search for documents, th[e] duty [to assist] is
limited to specifically identified documents that by their description would be facially relevant and
material to the claim.”).
Once the duty to assist is triggered, “VA will make as many requests as are necessary to
obtain relevant records from a Federal department or agency.” 38 C.F.R. § 3.159(c)(2). VA must
continue its efforts to attempt to obtain such records unless “it is reasonably certain that such
records do not exist,” 38 U.S.C. § 5103A(c)(2); it is reasonably certain that “further efforts to
obtain those records would be futile,” id.; or there is “no reasonable possibility” that any further
VA assistance would aid in substantiating the claim, 38 C.F.R. § 3.159(d). See also 38 C.F.R.
§ 3.159(c)(2) (“Cases in which VA may conclude that no further efforts are required include those
in which the Federal department or agency advises VA that the requested records do not exist or
the custodian does not have them.”). The latter situation—no reasonable possibility that any
further assistance would aid in substantiating the claim— includes, but is not limited to, “[c]laims
that are inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2). If VA is unable to
obtain records from a Federal department or agency after making reasonable efforts to do so, VA
must notify the claimant of that fact. 38 C.F.R. § 3.159(e)(1).
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The Court reviews Board determinations that VA satisfied its duty to assist under the
“clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Nolen v. Gober,
14 Vet.App. 183, 184 (2000). “A factual finding ‘is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its determination that VA satisfied its duty to assist with an adequate statement of
reasons or bases that enables the claimant to understand the precise basis for that finding and
facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Todd v. McDonald, 27 Vet.App. 79, 87
(2014); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the credibility and probative value of evidence, account for evidence it finds
persuasive or unpersuasive, and provide reasons for rejecting 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). The Board must also address all potentially applicable provisions of law and
regulation. 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
C. G.C. Precedent Opinion 05-14
Having set forth the overarching duty-to-assist principles that govern VA’s development of
claims for service connection for PTSD based on in-service personal assault, the Court now turns
its attention to G.C. Precedent Opinion 05-14. Except as otherwise noted, we express no opinion
as to the propriety of the General Counsel’s conclusions. Rather, the following is a summary of
the G.C. opinion, which both parties agree is potentially applicable to the veteran’s claim. See
Appellant’s Br. at 19-21; Secretary’s Br. at 27-28; Reply Br. at 4-5.
In G.C. Precedent Opinion 05-14, the VA General Counsel addressed whether the duty to
assist requires VA to obtain records from servicemembers other than the claimant, including third
party records that may aid in corroborating an alleged personal assault in a claim for service
connection for PTSD under § 3.304(f)(5). VA Gen. Coun. Prec. Op. 05-14 (Jan. 5, 2017), at 1,
¶¶ 1-2. The General Counsel concluded that “VA generally would be obligated under 38 U.S.C.
§ 5103A to make reasonable efforts to obtain records pertaining to another individual if: (a) those
records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in
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substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such
records to the [v]eteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332.”2 Id., at 2, ¶ 1.
As to element (a), the General Counsel recognized that “[t]he service records of an
individual other than the claimant may be relevant to the claim in certain situations,” and favorably
cited a non-precedential case, Durham v. Shinseki, No. 08-3478, 2010 WL 2145263, 2010 U.S.
App. Vet. Claims LEXIS 998 (Vet.App. May 28, 2010) (Davis, J.), in which the Court remanded
a claim for service connection for PTSD based on an in-service personal assault because VA had
not attempted to obtain the alleged assailant’s service records, which the claimant asserted
contained records of a military investigation into the assault. Id. at 5, ¶ 2. The General Counsel
explained that the question of whether another servicemember’s records would be relevant to a
claim was “inherently a case-specific factual determination.” Id.
As to element (b), the General Counsel indicated that, “[i]f VA is precluded from disclosing
another individual’s records to the claimant, then it would be precluded from considering those
records in deciding the claim,” id. at 7, ¶ 5, and examined three different statutes that potentially
limit VA’s disclosure of such records: the Privacy Act, 5 U.S.C. § 552a(b); 38 U.S.C. § 5701; and
38 U.S.C. § 7332. Specifically, the General Counsel noted that the Privacy Act provides, in
pertinent part, that “[n]o agency shall disclose any record which is contained in a system of records
by any means of communication to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom the record pertains,” or
unless disclosure would be permitted under an enumerated exception to the Act. 5 U.S.C.
§ 552a(b); see G.C. Prec. 05-14, at 6, ¶ 4. The General Counsel highlighted three exceptions that
were potentially applicable to VA claims: written consent from the third party to disclose his or
her records, 5 U.S.C. § 552a(b); an order from a court of competent jurisdiction directing
disclosure, 5 U.S.C. § 552a(b)(11); or disclosure for a “routine use” compatible with the purpose
for which the record was collected, 5 U.S.C. § 552a(b)(3). G.C. Prec. 05-14, at 8, ¶ 8.
Regarding the VA specific statutes, sections 5701 and 7332, the General Counsel
concluded that, although section 5701(a) provides that “[a]ll files, records, reports, and other
papers and documents pertaining to any claim under any of the laws administered by the Secretary
2 Although the General Counsel discusses only these listed statutes, the Court observes that there may be
other privacy statutes, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No.
104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.), that limit or prevent
disclosure of another veteran’s medical records.
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and the names and addresses of present or former members of the Armed Forces, and their
dependents, in the possession of the Department shall be confidential and privileged, and no
disclosure thereof shall be made except as provided in this section,” the section 5701 provisions
authorizing disclosure aligned with the aforementioned Privacy Act exceptions and would
therefore permit disclosure via written consent, 38 U.S.C. § 5701(b)(1); a court order, 38 U.S.C.
§§ 5701(b)(2), (5); or a routine use by VA, 38 U.S.C. § 5701(e). G.C. Prec. 05-14, at 8-9, ¶¶ 10-
11. However, he explained that, because VA had not yet established a routine use for disclosing
third party records in VA custody, the routine use exception does not apply to VA records. Id. at
8, ¶ 8 (citing 74 Fed.Reg. 29,275, 29,277-81 (June 19, 2009) (listing routine uses for VA records).
The General Counsel further noted that 38 U.S.C. § 7332(a)(1) prohibits disclosure of any record
pertaining to “the identity, diagnosis, prognosis, or treatment of any patient or subject which are
maintained in connection with the performance of any [VA] program or activity . . . relating to
drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus
[(HIV)], or sickle cell anemia,” absent the individual’s written consent or a court order directing
disclosure.3 See G.C. Prec. 05-14, at 9-10, ¶ 12 (citing 38 U.S.C. §§ 7332(b)(1), (2)(D); 38 C.F.R.
§ 1.475).
The General Counsel therefore concluded that, where section 7332 is not implicated
because records do not involve drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell
anemia, VA would be permitted to disclose another servicemember’s VA records to a claimant
upon written consent of the individual to whom the records pertain or pursuant to a court order.
G.C. Prec. 05-14, at 10, ¶ 13. Similarly, where section 7332 is not implicated, VA would be
permitted to disclose another servicemember’s records in the custody of another Federal agency or
department to the claimant upon written consent of the individual to whom the records pertain,
pursuant to a court order, or where the other agency or department has an established routine use
permitting disclosure. Id. at 10, ¶ 14.
Regarding written consent, the General Counsel stated that “reasonable efforts” to assist a
claimant in obtaining records may include VA asking another servicemember to consent to
disclosure of his or her records to the claimant. Id. at 11, ¶ 15. He explained that the determination
3 Effective April 24, 2017, VA amended its regulations governing the release of VA medical records to
eliminate the restrictions on sharing negative HIV and sickle cell anemia test results with veterans’ non-VA medical
providers. See Release of VA Records Relating to HIV, 82 Fed.Reg. 14,820 (Mar. 23, 2017).
13
as to whether the duty to assist requires such action is to be made on a case-by-case basis
considering such factors as
the third party’s privacy interest in his or her records; the likelihood that the records
exist; the likelihood that the request would result in consent to disclose the records
to the claimant; and the potential for such requests to generate conflict or otherwise
adversely affect the safety, health, or rights of either the claimant or the third party.
Id. He also stated that VA may consider “whether there is a basis for believing that records of the
type referenced by the claimant exist, as distinguished from mere speculation that such records
may exist.” Id. According to the General Counsel,
[a] determination that “reasonable efforts” do not require seeking a third party’s
consent to disclose his or her records to the claimant would be most strongly
justified in a case where the interests of the third party are adverse to the claimant’s
interest, such as where the claimant alleges that the third party assaulted the
claimant or engaged in other improper or unlawful behavior.
Id. at 11, ¶ 16. When VA finds that “reasonable efforts” would require seeking written consent
from a third party, the General Counsel indicated that VA “must first obtain the claimant’s
informed written consent to disclose his or her information to the third party as needed in order to
facilitate the third party’s informed consent to the disclosure of his or her records to the claimant.”
Id. at 12, ¶ 17.
With respect to obtaining a court order directing disclosure, the General Counsel indicated
that he believed that the duty to assist “generally would not require VA to institute court
proceedings to secure authority for disclosure” because, even if VA had standing to initiate such
proceedings,4 “instituting a judicial proceeding collateral to a pending benefits claim would likely
be beyond the scope of the ‘reasonable efforts’ contemplated by section 5103A(a).” Id. at 12, ¶ 18.
And, with respect to routine uses for disclosure of non-VA Federal records, the General
Counsel stated that “it would be consistent with VA’s duty to assist for VA to request that the other
agency provide those records, but only if such records may be disclosed to the VA claimant.” Id.
4 Although the Court need not address this standing issue to decide the instant appeal, the Court notes that
claimants and the Secretary have standing to seek Court intervention in proceedings before the Agency on issues that
would ultimately be appealable to the Court. See Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) (holding that the
Court “has the power to issue writs of mandamus in aid of its jurisdiction”); see also Monk v. Shulkin, __ F.3d __, __,
2017 WL 1487283, at *5, 2017 U.S. App. LEXIS 7329, at *13 (Fed. Cir. Apr. 26, 2017) (characterizing the All Writs
Act as “a legislatively approved source of procedural instruments designed to achieve the rational ends of law,” which
“permits federal courts to fill gaps in their judicial power where those gaps would thwart the otherwise proper exercise
of their jurisdiction,” and explaining that this Court’s authority under that Act is “is not confined to the issuance of
writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate
jurisdiction although no appeal has been perfected” (internal quotations and citations omitted)).
14
at 10, ¶ 14. The General Counsel suggested that, for purposes of making such a request, “VA
clearly explain to the custodian agency the circumstances and conditional nature of the request.”
Id.
Finally, the General Counsel concluded that neither section 5103A nor § 3.304(f)(5)
requires VA to solicit written statements from fellow servicemembers, including an alleged
assailant, for the purpose of assisting in corroborating a claimed personal assault stressor. Id. at
13-16, ¶¶ 20-24. However, the Court addressed the same question in Forcier v. Nicholson, 19 Vet.
App. 414, 422 (2006), and held that, in a claim for service connection for PTSD based on an inservice
personal assault, “[i]f . . . 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.” Id. (citing Patton, 12 Vet.App. at 280-81).
Thus, to the extent that the General Counsel categorically concluded that the duty to assist never
requires VA to solicit written statements from third parties to assist in corroborating a claimed
stressor, he erred. See Hornick v. Shinseki, 24 Vet.App. 50, 53 (2010) (reviewing VA’s
interpretation of a statute de novo).
In sum, General Counsel Precedent Opinion 05-14 provides that the duty to assist requires
VA, in a claim for service connection for PTSD based on in-service personal assault, to make
reasonable efforts to obtain records from fellow servicemembers when those records are
adequately identified by the claimant, relevant to the claim, would aid in substantiating the claim,
and would be subject to disclosure under the Privacy Act and 38 U.S.C. §§ 5701 and 7332. VA
G.C. Prec. 05-14, at 2, ¶ 1. Where the records do not involve drug abuse, alcoholism or alcohol
abuse, HIV, or sickle cell anemia under section 7332, VA would be permitted to disclose third
party VA records pursuant to written consent of the third party or a court order directing disclosure,
and VA would be permitted to disclose third party records in the custody of another Federal agency
or department pursuant to written consent of the third party, a court order directing disclosure, or
a routine use of the other Federal agency or department permitting disclosure. Id. at 10, ¶¶ 13-14.
Whether VA’s “reasonable efforts” to assist include seeking written consent of the third party on
behalf of the claimant is a factual question to be answered on a case-by-case basis, weighing the
competing interests of the claimant and third party and considering the sensitive nature of the
particular claim. Id. at 11, ¶¶ 15-16.
15
D. Application to This Appeal
Although the Court is not bound by VA General Counsel precedent opinions, the Board is.
38 U.S.C. § 7104(c) (“The Board shall be bound in its decisions by the regulations of the
Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of
the Department.”); see Hornick, 24 Vet.App. at 52-53. Consequently, if Ms. Molitor adequately
identified relevant records from fellow servicemembers that may aid in corroborating her claimed
in-service assaults, G.C. Precedent Opinion 05-14 would apply to her claim and the Board would
have been required to address it in assessing whether VA satisfied the duty to assist. See 38 U.S.C.
§ 7104(a); Schafrath, 1 Vet.App. at 593. Accordingly, the Court will now examine whether Ms.
Molitor’s statements identifying an alleged assailant, witnesses to the MP initiation assault, and
other female MPs who may have been raped in Germany were sufficient to raise the application
of that G.C. opinion.
Over the course of the claim, Ms. Molitor identified several individuals whose service
records she believes may aid in corroborating the claimed assaults. In October 2005, she submitted
a sexual trauma markers worksheet that included a description of the MP initiation rape, her unit
information, the location and approximate date of the incident, and the names and ranks of four
witnesses. R. at 3149. In October 2012, the veteran identified those four servicemembers again,
provided the name and rank of another witness to the assault, and requested that VA attempt to
locate those individuals. R. at 287. She also gave the name and rank of one of her alleged
assailants and asserted that she physically retaliated against him, implying that he may have
sustained injuries that could be reflected in his service medical records. Id.; see also R. at 2956,
3146 (the veteran’s other reports of “beating up” the sergeant-assailant). Additionally, Ms. Molitor
identified by name and rank four women stationed in Germany with her at the time, including
another female MP who Ms. Molitor believed had also been raped in service and who allegedly
committed suicide shortly after being deployed to Germany. Id. The veteran expressly requested
that VA review their records for evidence of in-service sexual assault or claims for service
connection for residuals of MST. Id.
Collectively, this information was sufficient to facilitate a VA search for those
servicemembers’ records, and the Court therefore concludes that it constitutes adequate
identification of outstanding records for duty to assist purposes. See Gagne v. McDonald,
27 Vet.App. 397, 402-03 (2015) (concluding that the adequate identification prong of the duty to
16
assist was satisfied because the veteran provided VA with information sufficient to locate records
pertaining to a claimed in-service stressor, including his unit, the circumstances of the claimed
stressor, and a 13-month timeframe in which the stressor occurred).
The Court is likewise persuaded that the identified records were relevant to and may aid in
substantiating the veteran’s claim. The alleged assailant’s service medical records may show
complaints of or treatment for injuries inflicted by Ms. Molitor that would corroborate her account
of the rape, see R. at 287, 2956, 3146; the service records and VA claims files of the identified
women serving with her in Germany may reflect reports of similar assaults or claims for service
connection for residuals of MST that could establish a rape culture at the base, see R. at 287; and
service records that confirm Private Lutz’s suicide would bolster the credibility of Ms. Molitor’s
reports of other events that occurred in Germany in 1986. See R. at 287, 4268. The Court therefore
concludes that, for duty to assist purposes, the foregoing records are relevant and have a reasonable
possibility of substantiating the veteran’s claim because they relate to the claimed initiation rape
and may aid in corroborating that stressor. See Golz, 590 F.3d at 1321.5
Given that Ms. Molitor adequately identified relevant records of fellow servicemembers
that may aid in substantiating her claim, G.C. Precedent Opinion 05-14 was applicable to her claim
and the Board was required to consider it in assessing whether VA satisfied its duty to assist. See
38 U.S.C. § 7104(a), (c); Hornick, 24 Vet.App. at 52-53; Schafrath, 1 Vet.App. at 593. Although
the Secretary argues that the Board’s finding that Ms. Molitor was not credible excused its failure
to specifically discuss that G.C. opinion, Oral Argument at 30:31-50, 32:20-55, that argument puts
the cart before the horse. Except as provided in § 3.159(d) (“Circumstances where VA will refrain
from . . . providing assistance.”), which the Board did not discuss and the Secretary did not invoke
in this case, a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant
in developing his or her claim because such development may produce evidence that substantiates
the claim or otherwise bolsters or rehabilitates a claimant’s credibility.
Accepting the Secretary’s position would create a vicious circle in which VA could refuse
to attempt to obtain evidence that could corroborate a claimed stressor on the ground that the record
does not already contain evidence that corroborates the claimant’s description of the stressor. Such
5 To the extent that the duty to assist compels VA, in some circumstances, to assist claimants in obtaining
statements from witnesses to claimed in-service personal assaults as set forth in Forcier, 19 Vet. App. at 422, any
statements from the identified witnesses to claimed initiation rape here would also meet this standard. See R. at 287,
3149.
17
an interpretation of section 5103A is untenable, particularly where a credibility exception to the
duty to assist was available to VA, wherein it could have found, if it believed such a conclusion
was at all supportable, that her claim was inherently incredible. See 38 C.F.R. § 3.159(d)(2). The
Board presumably did not believe that to be the case. See Oral Argument at 30:31-50, 32:20-55.
Accordingly, the Court holds that where, as here, a claimant pursuing service connection
for PTSD based on an in-service personal assault adequately identifies relevant records of fellow
servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14
is applicable to the claim and VA must either attempt to obtain such records or notify the claimant
why it will not undertake such efforts. The Board’s failure to discuss the G.C. opinion and VA’s
lack of efforts to attempt to obtain the third-party records identified by Ms. Molitor when assessing
whether VA satisfied its duty to assist renders inadequate the Board’s reasons or bases for denying
her claim. See Todd, 27 Vet.App. at 87; Schafrath, 1 Vet.App. at 593; Gilbert, 1 Vet.App. at 57.
Remand is therefore warranted for the Board to address that issue and order any additional
development it finds necessary in accordance with G.C. Precedent Opinion 05-14. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that 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”).
E. Other Matters
Given the foregoing disposition, the Court need not address Ms. Molitor’s other reasonsor-
bases arguments. See Appellant’s Br. at 22-25; Reply Br. at 5-8. However, for the sake of
guidance to the Board on remand, see Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009), the Court
notes two additional issues that warrant attention. First, contrary to the Secretary’s suggestion, see
Oral Argument at 37:45-39:06, but see id. at 40:32-56, a lack of evidence of behavior changes in
service does not constitute negative evidence against a claim for service connection for PTSD
based on an in-service personal assault. The absence of evidence only tends to prove the
nonexistence of a fact if the fact would have ordinarily been recorded. See AZ, 731 F.3d at 1315-
18 (surveying the common law, Federal Rules of Evidence 803(7) and (10), and this Court’s
caselaw and concluding that “basic evidentiary principles preclude treating the absence of a record
of an unreported [event] as evidence of the nonoccurrence of the [event]”); see also Fountain v.
McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012);
Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011).
18
Although VA recognizes that a victim of personal assault may experience behavior changes
contemporaneous to or shortly after an assault, see 38 C.F.R. § 3.304(f)(5), VA also acknowledges,
by express incorporation of the Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition (DSM-5), into its regulation regarding diagnosis of mental disorders, 38 C.F.R. § 4.125
(2016), that “there may be a delay of months, or even years,” before PTSD symptoms manifest.
DSM-5 at 276 (describing “delayed expression” PTSD, previously known as “delayed onset”
PTSD). Because behavior changes do not necessarily manifest immediately after a personal
assault, it cannot be expected that they would appear in service in every instance of an assault;
therefore, a lack of behavior changes in service cannot act as evidence against the occurrence of
the assault. See AZ, 731 F.3d at 1318; Fountain, 27 Vet.App. at 272; Horn, 25 Vet.App. at 239
n.7; Buczynski, 24 Vet.App. at 224. To conclude otherwise would be to fundamentally ignore the
liberalizing intent of § 3.304(f)(5), which was designed to make it easier for claimants to prove the
occurrence of in-service assaults, not to erect another hurdle to corroboration. See Patton, 12
Vet.App. at 280; Post-Traumatic Stress Disorder Claims Based on Personal Assault, 65 Fed.Reg.
61,1132, 61,1132 (Oct. 16, 2000) (proposing to amend § 3.304(f) to address the difficulty of
producing evidence to prove the occurrence of an in-service personal assault).
Second, the Court notes that Ms. Molitor has not yet received a VA examination or opinion
that conforms with the DSM-5. Although the most recent VA opinion was rendered in January
2015, five months after VA amended its rating schedule to require examinations that conform with
the DSM-5, see Schedule for Rating Disabilities—Mental Disorders and Definition of Psychosis
for Certain VA Purposes, 79 Fed.Reg. 45,093, 45,093-45,103 (interim final rule published Aug. 4,
2014), the January 2015 VA psychologist appears to have applied the PTSD diagnostic criteria
from the prior version of the DSM. Compare R. at 33 (requiring for a diagnosis of PTSD, inter
alia, that the veteran’s response to the claimed stressor “involved intense fear, helplessness, or
horror”), with AM. PSYCHIATRIC ASS’N, DSM-5 PTSD FACT SHEET 1 (2013) (“Language
stipulating an individual’s response to the event—intense fear, helplessness or horror, according to
DSM-IV—has been deleted because that criterion proved to have no utility in predicting the onset
of PTSD.”). Therefore, the Board, on remand, must consider and address whether a new VA
examination or opinion is necessary to decide the claim. See Barr v. Nicholson, 21 Vet.App. 303,
311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination, . . . he must
provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be
19
provided.”); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) 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”).
Ms. Molitor is free on remand to present any additional arguments and evidence to the
Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a]
remand is meant to entail a critical examination of the justification for [the Board’s] decision,”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious
manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the May 12, 2015, Board decision is SET ASIDE and
the matter is REMANDED for further development, if necessary, and readjudication consistent
with this decision.

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