Molitor v. Shulkin, Case Number 15-2585, decided June
1, 2017 examines the necessary steps the VA must take to assist a veteran in
substantiating a claim of military sexual trama.
The veteran sought service connection for PTSD from a
MST. PTSD/MST claims have a relaxed
standard of evidence necessary as explained in 28 CFR Section 3.304(f)(5).
Similarly, there exists a general duty for the VA to assist
in developing a claim.
Finally, the VA’s General Council has issued an opinion, GC
Precedent Opinion 05-14, which addresses what steps the VA must take to obtain
records from servicemembers, other than the claimant, including third party
records that may aid in corroborating an alleged personal assault.
The Court found the Board erred in failing to address the GC
Precedent Opinion in this case. Here,
she identified several of her assailants, the approximate date of the incident,
and ranks and names of four witnesses.
She also identified other women stationed with her that she believed had
been sexually assaulted.
The Court determined:
“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; 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; 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. 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.”
Id. at *16 (internal citations omitted).
The Secretary also tried to argue that the veteran was not
credible and therefore the VA did not have to attempt to obtain these
materials. The Court found otherwise,
finding:
“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. 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 that argument
puts the cart before the horse.” Id. at
*16 (internal citations omitted).
The Court then concluded by stating: “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.
This decision is a masterful explanation of the duty to
assist in cases involving Military Sexual Assault and PTSD and provides a
resource that all advocates should use when developing these types of cases
Decision by Judge Bartley, joined by Chief Judge Davis and Judge
Greenberg.
