Molitor: Military Sexual Trauma and the VA’s Duty to Assist

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.