Molitor v. Shulkin, docket no. 15-2585 (June 1, 2017)

HELD: "[w]hen 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.” In addition, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim” and that “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.”

SUMMARY: In 2003, veteran Jaclyn Molitor filed a claim for service connection for PTSD due to military sexual trauma (MST). A 2004 VA examiner diagnosed PTSD due to childhood trauma, and the VA regional office (RO) denied the claim. Ms. Molitor appealed that decision.

Her Vet Center treatment records noted that she was sexually assaulted in service as part of a military police (MP) hazing. She did not report the incident for fear of retribution. Her Vet Center counselor, Cindy Macaulay, wrote a letter stating that Ms. Molitor had repressed memories of the incident and that those memories were coming back with therapy. Ms. Macauley acknowledged the veteran’s other diagnoses, childhood sexual abuse, and post-service events that “complicated the case,” but opined that it was “at least as likely as not” that her PTSD was related to her in-service assaults. Attached to the letter was a sexual trauma markers worksheet that included the approximate date of the assault, location, unit, and names of several witnesses. Ms. Molitor also submitted a statement providing additional details about the assault.

The RO continued to deny the claim in a Statement of the Case (SOC) that Ms. Molitor appealed. In September 2006, she was afforded a Board hearing, during which she testified that she was raped by four or five soldiers during an MP hazing and that she “beat the hell out of the sergeant” in the group.

In July 2007, the Board remanded for additional development. In January 2010, Ms. Macauley submitted another letter in support of the claim. The next month, Ms. Molitor underwent another VA PTSD examination. The examiner questioned her credibility because she denied prior drug and alcohol abuse and mental illness on her service entrance examination report. The examiner noted that there was no evidence of behavior changes in her file and therefore determined that it was less likely that her PTSD was related to service. Later that month, the RO continued to deny the claim in a Supplemental SOC.

In June 2011, the Board remanded again for additional development. In April 2012, the Appeals Management Center determined that Ms. Molitor’s claimed in-service assaults could not be verified.

Her subsequent Vet Center treatment records showed that Ms. Molitor had “cut back on her meds” and was remembering more about the military assaults. Ms. Molitor submitted statements with additional details, including names of the other MPs who raped her, as well as the name of another female MP, Private Lutz, who she believed had also been raped. Ms. Molitor indicated that Private Lutz committed suicide in service. She asked VA to check her file, as well as the files of other women she served with, whom she also identified, for evidence of in-service assault or post-service claims for service connection for PTSD due to MST.

In December 2012, the Board remanded the claim again for another hearing. Ms. Molitor again described the hazing rape and stated that she was subsequently transferred without explanation. Ms. Macauley, her Vet Center therapist, also testified at the hearing, and stated that she believed Ms. Molitor had been raped in service because she consistently reported the details of the assaults. Ms. Macauley explained that the “inconsistencies” perceived by VA were the result of her remembering more details, rather than changing her story.

The Board remanded the case three more times for additional VA medical opinions, including “a medical expert opinion to resolve the conflicting diagnoses.” In January 2015, a VA psychologist diagnosed borderline personality disorder and PTSD due to childhood abuse, and determined that both diagnoses preexisted service. She rejected Ms. Macauley’s diagnosis of PTSD due to MST as “not supported by the record.”

In its May 2015 decision, the Board denied the claim. The Board determined that VA satisfied its duty to assist, but did not discuss Ms. Molitor’s requests to obtain other servicemembers’ records. The Board found Ms. Molitor’s statements not credible because they were “internally inconsistent and contradicted by other evidence of record.” The Board rejected Ms. Macauley’s opinions because they were based on Ms. Molitor’s non-credible statements, and afforded “great probative weight to the negative VA examiners’ opinions.”

On appeal, Ms. Molitor argued that VA did not satisfy its duty to assist because it did not attempt to obtain records from her fellow servicemembers that she had identified, as required by VA’s own G.C. Precedent Opinion 05-14. The Secretary argued that Ms. Molitor had not adequately identified records that could aid in corroborating the claimed assaults, and that VA would not be able to disclose those records without written consent from the servicemembers or a court order. The Secretary further argued that “there is an ‘umbrella of credibility’ that hangs over all of the prongs of the duty to assist” and that the Board’s adverse credibility determination was adequate to explain why no further assistance was provided in this case.

The Court agreed with the veteran. The Court explained that this case involves VA’s “interpretation of intertwining and sometimes conflicting” statutory duties to (1) assist claimants and (2) protect the privacy of all servicemembers. The Court noted that in claims for service connection for PTSD based on personal assault, 38 C.F.R. § 3.304(f)(5) “lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor.” This regulation codified VA’s “existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault.”

Under 38 U.S.C. § 5103A, VA’s 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.” Once this duty is triggered, VA must make as many requests as necessary unless “it is reasonably certain that such records do not exist” or that “further efforts to obtain those records would be futile” or there is “no reasonable possibility” that any additional assistance would help substantiate the claim. This latter category applies to claims that are “inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2).

The Court summarized G.C. Precedent Opinion 05-14 as requiring VA to make reasonable efforts to obtain another individual’s records “if (a) those records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in 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.” The latter requirement cites three statutes that limit VA’s disclosure of another individual’s records, but the Precedent Opinion also identified three exceptions in the Privacy Act – (1) written consent from the individual, (2) a court order, or (3) disclosure for “‘routine use’ compatible with the purpose for which the record was collected.”

The Precedent Opinion further concluded that neither the duty to assist (§ 5103A) nor 38 C.F.R. § 3.304(f)(5) “requires VA to solicit written statements from fellow servicemembers” to corroborate a claimed assault. However, the Court noted that it had previously addressed this issue in Forcier v. Nicholson, 19 Vet.App. 414, 422 (2006), which held that VA’s duty to assist may require VA to obtain such written statements if the claimant provides the names of the perpetrator(s) and/or witnesses.

The Court determined that during the course of this appeal Ms. Molitor had adequately identified several individuals whose records could help corroborate her claimed assaults and that these records were relevant to her claim. The Court thus determined that the Board erred by not considering the applicability of G.C. Precedent Opinion 05-14 when it found that VA had satisfied its duty to assist.

With respect to the Secretary’s “umbrella of credibility” argument, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim because such development may produce evidence that substantiates the claim or otherwise bolsters or rehabilitates a claimant’s credibility.”

The Court thus held that when a claimant for service connection for PTSD based on 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 Court further noted that “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 Court added: “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.”