28 Vet. App. 397
Vet. App.2017Background
- Veteran Jaclyn Molitor sought service connection for PTSD based on alleged in-service sexual assaults (MP initiation and later shower rape) while serving in Germany in 1986; she provided names, unit, approximate dates, and potential witnesses.
- VA repeatedly examined and remanded the claim; several VA examiners found Molitor not credible or demonstrated symptom over-reporting; a Vet Center counselor supported Molitor and provided a sexual trauma markers worksheet identifying specific fellow servicemembers.
- VA did not attempt to obtain service records or statements of the fellow servicemembers Molitor identified and did not address VA General Counsel Precedent Opinion 05-14 in the Board decision denying service connection (May 12, 2015).
- The central legal question concerned VA’s duty to assist: whether, in PTSD claims based on in-service personal assault, VA must attempt to obtain third-party servicemember records (or explain why it will not) when the claimant adequately identifies them.
- The Court concluded Molitor’s identifications were adequate, the records were potentially relevant to corroboration, and under G.C. Precedent Opinion 05-14 the Board was required either to obtain the records (or seek consent) or explain why it would not.
- The Court set aside the Board’s denial and remanded for further development consistent with the opinion (including addressing whether new DSM-5–compliant opinions are needed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA must attempt to obtain records/statements of fellow servicemembers identified by veteran in a PTSD claim based on in-service personal assault | Molitor: G.C. Precedent Opinion 05-14 required VA to attempt to obtain identified third-party records or explain why it would not; her identifications were adequate | Sec: VA not required because Molitor did not adequately identify relevant records; privacy statutes would prevent disclosure absent consent or court order; further efforts would be unreasonable given lack of in-service reporting | Court: Molitor adequately identified records; G.C. Prec. Op. 05-14 applied; VA must attempt to obtain such records or notify claimant why it will not (or seek consent), and the Board erred by failing to address this |
| Whether claimant credibility excuses VA’s duty to assist in obtaining third-party records | Molitor: Credibility should not negate VA’s duty; development might produce corroborating evidence | Sec: A negative credibility finding justified not obtaining third-party records (no need for further assistance) | Court: Credibility does not automatically abrogate duty to assist; VA may invoke regulatory exceptions (e.g., inherently incredible claims) but here it did not—Board must still address assistance obligations |
Key Cases Cited
- Cohen v. Brown, 10 Vet.App. 128 (discussion of elements for PTSD service connection)
- Patton v. West, 12 Vet.App. 272 (VA’s special obligation to assist in obtaining corroborating evidence for in-service personal assault)
- Forcier v. Nicholson, 19 Vet.App. 414 (Secretary’s reasonable efforts may include attempting to obtain statements from alleged perpetrators or witnesses)
- AZ v. Shinseki, 731 F.3d 1303 (evidentiary problems from underreporting of in-service sexual assaults; absence of records not proof of nonoccurrence)
- Golz v. Shinseki, 590 F.3d 1317 (duty to assist limited to relevant records)
- Gallegos v. Peake, 22 Vet.App. 329 (context for VA’s extra development in PTSD personal-assault claims)