Veteranclaims’s Blog

August 15, 2021

Single Judge Application; Claims for service connection for PTSD based on an in-service personal assault are governed by 38 C.F.R. § 3.304(f)(5),5 which lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor. See VA ADJUDICATION PROCEDURES MANUAL REWRITE (M21-1MR), pt. IV, subpt. ii, ch. 1, § D(17)(a), (m) (recognizing that veterans seeking service connection for PTSD based on personal assault “face unique problems documenting their claims,” including difficulty producing evidence to support the occurrence of a stressor, because “many incidents of personal trauma are not officially reported”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0504
BD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Upon motion of the appellant, the record in this case has been sealed and
the veteran-appellant is identified only as “BD.” The veteran appeals through counsel a December
15, 2011, Board of Veterans’ Appeals (Board) decision denying service connection for post-traumatic
stress disorder (PTSD). Record (R.) at 3-12. This appeal is timely and the Court has jurisdiction
to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For
the reasons that follow, the Court will set aside the December 2011 Board decision and remand the
matter for further development, if necessary, and readjudication consistent with this decision.
I. FACTS
The veteran served on active duty in the U.S. Army from February 1980 to September 1986.
R. at 464. The veteran’s service medical records (SMRs) reflect gynecological complaints and
diagnoses during that period, including the following: Gonococcal arthritis and gonococcal
septicemia in February 1 1981 (R. at 743); irregular menstrual cycles in October 1981 (R. at 731) and
February 1986 (R. at 609); undiagnosed vaginal discharge in November 1981 (R. at 732) and
November 1984 (R. at 744); dysmenorrhea2 in March 1983 (R. at 778), April 1983 (id.), and June
1984 (R. at 669); vaginitis3 in August 1983 (R. at 767); a “tubal pregnancy . . . which . . . resulted
in a spontaneous [abortion]” in May 1984 (R. at 641); pelvic inflammatory disease4 in November
1984 (R. at 673) and July 1985 (R. at 641-42); and a urinary tract infection in April 1986 (R. at 726).
In addition, the veteran checked the box on an April 1985 “Report of Medical History” indicating
that she had a history of “VD—syphilis, gonorrhea, etc.,” but circled the word “gonorrhea” and wrote
“1981” next to it. R. at 719. She also wrote on that form that she had a miscarriage in 1983. R. at
720.
The veteran’s service personnel records also reflect that, in December 1981, she was
promoted to the rank of Specialist Fourth Class based on her “patriotism, valor, fidelity, and
professional excellence.” R. at 526. In August 1982, the veteran was transferred to Mannheim,
Germany, where she was stationed until July 1984. R. at 481-82. During that time, she was awarded
a Good Conduct Medal for “[e]xemplary behavior, efficiency, and fidelity in active military service”
(R. at 525) and was approved for reenlistment in the Army (R. at 534-37).
In June 1985, the veteran received nonjudicial punishment pursuant to Article 15 of the
Uniform Code of Military Justice (UCMJ) for using marijuana and cocaine. R. at 565-67. The
veteran attended performance counseling the next month and, although the counselor noted that she
was “a good soldier” who had “proven that she can do any job well that is assigned to her,” he
recommended that she not be promoted because of “unfortunate circumstances.” R. at 570-71. In
1″Gonococcal arthritis” is “bacterial arthritis occurring secondary to gonorrhea.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 150 (32d ed. 2012) [hereinafter DORLAND’S]. “Septicemia” is “systemic disease associated with
the presence and persistence of pathogenic microorganisms or their toxins in the blood.” Id. at 1693. Gonococcal
septicemia is caused by “an individual microorganism of the species Neisseria gonorrhoeae, the organism causing
gonorrhea.” Id. at 798.
2″Dysmenorrhea” is “painful menstruation.” DORLAND’S at 578.
3″Vaginitis” is “inflammation of the vagina.” DORLAND’S at 2019.
4″Pelvic inflammatory disease” or “PID” is “any pelvic infection involving the upper female genital tract beyond
the cervix.” DORLAND’S at 541.
2
November 1985, The veteran underwent further professionalism, performance, and attitude
counseling. R. at 568-69. Despite the foregoing, the veteran was awarded another Good Conduct
Medal in February 1986. R. at 491.
In April 1986, the veteran discussed the possibility of reenlisting in the Army with her
commanding officer, who “informed [her] that she could change her attitude and learn more and
more pride in her . . . duty.” R. at 573. On July 11, 1986, the veteran “was absent from morning
formation” and “did not explain why she was late” to her duty station. R. at 572. Five days later,
she was again punished under Article 15 of the UCMJ for using marijuana. R. at 551. She was
subsequently recommended for separation from the Army (R. at 548-49) and received a general
discharge under honorable conditions (R. at 464, 542). The reason for separation listed on her DD
Form 214 was “Misconduct – Pattern of Misconduct.” R. at 464.
In April 1987, the veteran filed an application requesting that her character of discharge be
upgraded to honorable. R. at 598-99. She explained that she had “made mistakes in [her] military
career” that she was “paying for . . . now by being dismissed from the service,” and expressed
concern that her character of discharge would compromise her future employment prospects. R. at

  1. In November 1987, the Army Discharge Review Board denied her application but modified
    the reason for her discharge to “Misconduct – Abuse of Illegal Drugs.” R. at 494; see R. at 468 (DD
    Form 215 Correction to DD Form 214).
    In March 2005, the veteran was admitted to a VA clinic for detoxification and rehabilitation
    and was diagnosed with cocaine dependency and alcohol abuse. R. at 312-13. Later that month, the
    veteran was discharged to a VA Substance Abuse Residential Rehabilitation Program (SARRP). R.
    at 359-62. She admitted using cocaine since 1980 and reported a history of experiencing sexual
    abuse, including being raped in service. R. at 361 (“Vet joined the Army when she was 17 years old
    and was raped before she turned 18. Vet says that she went into some barracks that she should not
    have gone into. Vet did not see the man who raped her.”). The veteran was discharged from the
    SARRP in April 2005 and reported to a VA psychiatrist later that month that she had a 20-year
    history of crack, heroin, and alcohol dependence and has difficulty sleeping because she “thinks
    about a rape that occurred in the military at age 17[;] never sought help.” R. at 277.
    3
    In June 2005, the veteran underwent a VA initial intake assessment for PTSD. R. at 267-68.
    She reported that, when she was 17 years old, she was the victim of military sexual trauma and that
    she “told another female in her unit about the incident.” R. at 267. The veteran stated that she had
    “a long history of alcohol and drug abuse” and that she used those substances “to ‘numb out’ so that
    she could forget about her attack.” Id. Her complaints at that time included recurring nightmares
    of the attack, difficulty sleeping, isolation, and “fear of men.” Id. Later that month, she was
    diagnosed by a VA physician with PTSD and cocaine dependence in remission. R. at 262.
    In July 2005, the veteran complained to a VA social worker of recurrent nightmares of the
    in-service assault, fighting in her sleep, fear of the dark, discomfort in crowds and around men,
    depression, isolation, and a quick temper. R. at 255-56. That same month, the veteran provided
    more details about the in-service attack to another VA social worker, who recorded the following
    description:
    [The veteran] reported that she was at a club and was sitting at a table with three
    soldiers. She had been drinking but she knew that she was not drunk. She went to
    the bathroom and left her drink on the table. She returned and finished her drink. On
    hindsight, she realizes that she should not have finished the drink because she
    believes that it was drugged. One of the guys left the group. She decided to go back
    to her barracks to catch up with friends. In route to the barracks, she heard someone
    call her name[;] thinking that it was one of her friends she went to investigate where
    they were calling her from. She walked towards a building and someone put their
    hand over her mouth and dragged her into the empty building. [The veteran] stated
    that she must have passed out. When she came to she had been undressed and saw
    the shadows of three men leaving the building. She was trying to orient herself and
    trying to figure out what had happened. She got up and put her clothes back on, went
    back to her barracks and told one of her friends about the incident. Her friend told
    her that they needed to report the rape to the staff duty sergeant. Veteran told her
    friend that she felt dirty and that she needed to take a shower. While she showered,
    her friend told the sergeant. The sergeant later approached her and asked her about
    the incident. He told her that he would take care of it. [The veteran] stated that no
    report was ever filed. She did not follow up with him about it because she was afraid
    of her attackers. . . . She reported remembering one of her attackers telling her that
    if she told anyone that he would kill her.
    Not long after the assault she started having nightmares. She was afraid to walk
    alone at night or to be in a dark room. [The veteran] reported that she started drinking
    heavily and started smoking marijuana to forget about the rape. When the thoughts
    and nightmares increased she increased her intake of drugs and alcohol to mask her
    4
    pain and in hope that she would forget about the incident. She also had thoughts of
    suicide; however, she didn’t act upon those thoughts. She reported that she was able
    to cope most of the time; however, it was difficult for her to act “normal” when she
    had to go on assignment with a group of soldiers. Most times, she was the only
    woman and they were in the field for 30 days. She reported getting very little sleep
    during those times.
    [The veteran] reported that she was fearful of being alon[e] and did not go out often
    by herself because she was afraid [of] being attacked again. She found it to be even
    more difficult to put this incident behind her. Thoughts and memories of the attack
    became more intrusive. While stationed in Germany, she started using heroin[]
    which was readily available. Her alcohol consumption increased as well. Her
    nightmares were more intense. [The veteran] reported that she would fight so hard
    in her sleep that one morning she woke up with a bruise on her face. She reported
    feeling isolated[,] having no one to talk to about her experience.
    R. at 249-50.
    After performing a mental status examination, the social worker stated that the veteran “has
    numerous symptoms that [indicate she] has experienced a traumatic event in the form of military
    sexual trauma which left her feeling intense fear and helplessness,” including “a pattern of symptoms
    consistent with the diagnosis of PTSD including, but not limited to, (1) re-experiencing the trauma
    in the form of nightmares, intrusive thoughts, and . . . having difficulty falling and staying
    asleep.” R. at 251. Accordingly, the social worker diagnosed the veteran with chronic PTSD and
    poly-substance dependency, in remission. Id.
    In July 2007, the veteran submitted to a VA regional office (RO) a VA Form 21-0781a,
    “Statement in Support of Claim for Service Connection for [PTSD] Secondary to Personal Assault.”
    R. at 284-89. She stated that she was raped on October 5, 1981, at Fort Bragg, North Carolina. R.
    at 284. She described the incident as follows:
    I was coming from a club and walking down the street going to my barracks and it
    was dark[,] no light[,] and I was grabbed from behind and knocked out and woke up
    with my clothes torn and pants pulled down. I reported to the Sergeant in charge and
    he was supposed to report[] to the proper authority and nothing was done about it.
    I was driven to drugs and alcohol and different behavior which I had to receive help
    for.
    5
    R. at 286. The following month, she submitted another statement, expressing “how hard it is to talk
    about being raped and having to block it out of your mind almost driving you insane and turning to
    drugs and alcohol to help you feel better about yourself.” R. at 224.
    In November 2007, the RO issued a decision denying the veteran’s claim for service
    connection for PTSD. R. at 138-42. The RO acknowledged that there was evidence of behavior
    changes that could corroborate that she was assaulted in service, but found that the four-year period
    between the alleged assault in October 1981 and the onset of those changes in June 1985 weighed
    against corroboration. R. at 139-40. The veteran filed a timely Notice of Disagreement with that
    decision (R. at 134-35) and subsequently perfected her appeal to the Board (R. at 106-09).
    In July 2010, the veteran participated in a Board hearing. R. at 79-84. She testified that the
    night of the assault she was at club with some friends, had two drinks, and then left because she was
    tired from a long run earlier that day. R. at 81. She explained that she took a shortcut to her barracks
    through a dimly lit area and was grabbed from behind and her mouth was covered. R. at 81-82. The
    veteran stated that “they told me if I screamed, they would kill me.” R. at 82. She explained “they”
    tore off her clothes, punched her in the face, and sexually assaulted her. Id. The veteran described
    herself as “bloody” and “discarded.” Id. She also said that she reported the assault to the sergeant
    on duty that night, who recorded the details of the incident and said “he would take care of it and
    report it the proper authorities.” Id. The veteran testified that she did not report the incident to any
    medical professionals at that time but sought treatment for a genitourinary condition a week later and
    was diagnosed with syphilis. Id. According to the veteran, she “began to drink harder, do
    recreational drugs, [and] stay[] to [her]self” after the assault and “got more and more into drugs and
    alcohol trying to suppress the pain” when she was stationed in Germany. Id.
    In September 2010, the Board denied the veteran’s claim for service connection for PTSD.
    R. at 68-76. She appealed that decision to the Court and the parties subsequently entered into a joint
    motion for remand (JMR) specifying that “the Board did not make an appropriate credibility finding
    as it pertains to lay statements provided by Appellant regarding her claimed stressor that she was
    assaulted in service” and that “the Board has not adequately addressed . . . why a medical
    examination is not warranted in this case.” R. at 58-59. In September 2011, the Court granted the
    parties’ JMR and the case was returned to the Board. R. at 56.
    6
    In December 2011, the Board issued the decision currently on appeal, which denied
    entitlement to service connection for PTSD. R. at 3-12. The Board found the veteran’s reports of
    being assaulted in service to be “completely and totally lacking in credibility,” “not probative,” and
    possessing “no evidentiary value for any purpose.” R. at 7. Specifically, the Board noted
    “inconsistencies” in the veteran’s recollections of the incident, including variations in “material facts,
    such as who she was with before the attacks, whether she in fact reported it, and whether she told
    a friend.” R. at 11. The Board explained that the veteran’s credibility was also impugned by the lack
    of corroborating evidence of a diagnosis of syphilis following the assault, despite “[e]xtensive
    records, including blood tests and gynecological examinations,” which it described as “affirmative
    evidence contradicting the Veteran’s account of events.” Id. The Board also explained that the fouryear
    gap between the assault and the veteran’s behavior changes further diminished her credibility.
    Id. The Board concluded its credibility analysis by making it clear that it did “not believe the
    Veteran with regard to any aspect of her allegations of her attack” and accusing the veteran of
    engaging in a “pattern of addiction and deceit” since being discharged from service. R. at 12. In
    addition, the Board found that VA was not required to provide the veteran with a PTSD examination
    because that there was no credible evidence of record that an in-service assault occurred and,
    therefore, any medical examination based on the veteran’s “fabricated” allegations of such an assault
    “would lack probative value and could not support her claim.” R. at 7. Based on the foregoing, the
    Board concluded that the preponderance of the evidence was “overwhelmingly” against the veteran’s
    claim. R. at 12. This appeal followed.
    II. ANALYSIS
    A. Corroboration of a Claimed Stressor
    The veteran first argues that the Board erred in evaluating the evidence that she submitted
    regarding the occurrence of the claimed in-service sexual assault, including evidence of behavior
    changes following that incident and postservice medical evidence indicating that her symptoms were
    consistent with experiencing an in-service assault. See Appellant’s Brief (Br.) at 12-22. She also
    argues that the Board “failed to adequately discuss the veteran’s statements that she had suppressed
    7
    the memories and failed to account for the traumatic nature of this event, when finding that the
    veteran’s statements were inconsistent and thus not credible.” Id. at 22. The Court agrees.
    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 nexus 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) (2012). Claims for service connection for PTSD based on an in-service personal assault are governed by 38 C.F.R. § 3.304(f)(5),5 which lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor. See VA
    ADJUDICATION PROCEDURES MANUAL REWRITE (M21-1MR), pt. IV, subpt. ii, ch. 1, § D(17)(a), (m) (recognizing that veterans seeking service connection for PTSD based on personal assault “face unique problems documenting their claims,” including difficulty producing evidence to support the occurrence of a stressor, because “many incidents of personal trauma are not officially reported”).

    That section 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 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) (2012).
    5The Board refers to 38 C.F.R. § 3.304(f)(3) in its decision. However, § 3.304(f)(3) was redesignated as
    § 3.304(f)(4) in October 2008 and as § 3.304(f)(5) in July 2010. See Posttraumatic Stress Disorder, 73 Fed. Reg. 64,208
    (Oct. 29, 2008); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010).
    8
    The Court reviews the Board’s determination whether a veteran has submitted sufficient
    evidence to corroborate a claimed in-service stressor under the “clearly erroneous” standard of
    review set forth in 38 U.S.C. § 7261(a)(4). See Sizemore v. Principi, 18 Vet.App. 264, 270 (2004);
    Pentecost v. Principi, 16 Vet.App. 124, 129 (2002). “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)).
    In rendering its decision, the Board is required to provide a written statement of reasons or
    bases for its “findings and conclusions[] on all material issues of fact and law presented on the
    record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand
    the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert v. Derwinski,
    1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
    and probative value of the evidence, account for the evidence that it finds to be persuasive or
    unpersuasive, and provide the reasons for its rejection of any 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).
    Although the Board went to great lengths to explain why it found the veteran’s lay statements
    regarding the claimed in-service assault not credible, it failed to thoroughly analyze and discuss the
    evidence of record that tends to corroborate that stressor. For example, the Board acknowledged
    that the evidence of record reflected illegal drug use and a deterioration in the veteran’s performance
    after the alleged assault, factors listed as behavior changes that may be credible evidence supporting
    the alleged stressor. R. at 11. However, the Board discounted that evidence because, in its view,
    those behavior changes became evident too long after the alleged assault to be corroborative of its
    occurrence. Id. The Board cited no authority for this proximity requirement, and the plain language
    of § 3.304(f)(5) does not contain one. See 38 C.F.R. § 3.304(f)(5) (stating that “[e]vidence of
    behavior changes following the claimed assault” may be evidence that the assault occurred (emphasis
    added)). Indeed, the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition states
    that “there may be a delay of months, or even years, before symptoms [of PTSD] appear” and uses
    the specifier, “with delayed onset,” to describe cases of PTSD where “at least 6 months have passed
    9
    between the traumatic event and the onset of the symptoms.” DIAGNOSTIC AND STATISTICAL
    MANUAL OF MENTAL DISORDERS 465-66 (4th ed., text revision, 2000) [hereinafter DSM-IV-TR].
    Moreover, to the extent that the Board discounted the evidence of the veteran’s behavior changes
    based on its own unsubstantiated opinion as to the expected course and presentation of her PTSD
    symptoms, it violated the Court’s holding in Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), that
    the Board “must consider only independent medical evidence to support [its] findings rather than
    provide [its] own medical judgment in the guise of a Board opinion.” See Kahana v. Shinseki, 24
    Vet.App. 428, 434 (2011) (explaining that the “relative severity, common symptomatology, and
    usual treatment” of a disability are medical issues requiring special expertise).
    The Board also failed to consider whether the July 2005 VA social work note, which includes
    a comprehensive “PTSD Assessment,” corroborated the claimed in-service assault. R. at 248-51;
    see Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (holding that “under 38 C.F.R.
    § 3.304(f)(5), medical opinion evidence may be submitted for use in determining whether the
    occurrence of a stressor is corroborated”); Patton v. West, 12 Vet.App. 272, 280 (1999) (rejecting
    the argument that “‘an opinion by a mental health professional based on a postservice examination
    of the veteran cannot be used to establish the occurrence of the stressor'” for PTSD claims based on
    personal assault (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). The PTSD Assessment
    contains a detailed description of the claimed in-service assault, a history of the veteran’s psychiatric
    symptoms, a summary of her current complaints, the results of a mental status examination, and,
    most importantly, the social worker’s opinion that the veteran’s psychiatric symptoms were indicative
    of a sexual assault. R. at 251 (“[The veteran] has numerous symptoms that [she] has experienced
    a traumatic event in the form of military sexual trauma which left her feeling intense fear and
    helplessness.”). Although the Board cited the July 2005 VA social work note in its decision and
    summarized the veteran’s report of the in-service assault contained therein (R. at 9), the Board did
    not address the social worker’s opinion that the veteran’s psychiatric presentation was consistent with
    that of a victim of military sexual trauma. Because that portion of the social work note tends to
    corroborate the claimed stressor, it constitutes potentially favorable evidence that the Board was
    required to consider in adjudicating her claim. See Menegassi and Patton, both supra; see also
    Caluza, 7 Vet.App. at 506 (holding that the Board must account for all potentially favorable evidence
    10
    of record to comply with the statutory reasons-or-bases requirement); 38 C.F.R. § 3.304(f)(5) (listing
    mental health counseling records among the types of alternative evidence that may corroborate a
    claimed in-service assault). The Board’s failure to do so therefore rendered inadequate its statement
    of reasons or bases for its decision.
    Additionally, in assessing the veteran’s credibility, the Board failed to take into account the
    impact that the claimed in-service assault may have had on her ability to recall and report that event
    consistently. The Board acknowledged the veteran’s assertion that variations in her recollection of
    the assault were “a reflection of trauma, and that despite such she has consistently maintained that
    she was raped, reported such to a sergeant, and told a friend,” but rejected that argument because it
    found that “[t]he variations are over material facts.” R. at 9. The Board did not, however, address
    the veteran’s explanation for those variations–i.e., that PTSD impaired her ability to present a
    consistent picture of the in-service assault. That explanation is supported by the DSM-IV-TR, which
    recognizes that individuals with PTSD may exhibit “amnesia for an important aspect of the traumatic
    event” and lists “inability to recall an important aspect of the trauma” among its diagnostic criteria
    for that condition. DSM-IV-TR at 464, 468. Thus, it is unclear whether and to what extent the
    materiality of the inconsistent facts affects the veteran’s credibility, and that is a factual determination
    that must be made by the Board in the first instance. See Washington v. Nicholson, 19 Vet.App. 362,
    367-68 (2005) (stating that it is the Board’s duty to evaluate the credibility and probative value of
    the evidence). The Board’s failure to address this expressly raised issue therefore frustrates judicial
    review. See Robinson 6 v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it
    fails to consider issues or theories raised either by the appellant or by the evidence of record), aff’d
    sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
    Accordingly, the Court concludes that the Board failed to provide an adequate statement of
    reasons or bases for its decision denying the veteran service connection for PTSD. See Caluza,
    6This is not to say that the Board is prohibited from finding a layperson with PTSD not credible based on
    inconsistencies in lay statements, only that the Board errs when it fails to address the reasonably raised possibility that,
    because of the unique features of PTSD, a claimant’s PTSD may have affected his or her ability to present a consistent
    picture of a stressor. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder,
    is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible
    bias, conflicting statements, etc.”); Caluza, 7 Vet.App. at 511 (1995) (“The credibility of a witness can be impeached
    by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.”).
    11
    7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Remand is therefore warranted. 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”).
    B. Duty To Provide a VA Medical Examination
    The veteran also argues that the Board did not provide an adequate explanation as to why she
    was not entitled to a VA medical examination to evaluate her PTSD. See Appellant’s Br. at 22-28.
    The Board determined that a medical examination was not warranted in this case because there was
    no credible evidence of record establishing an in-service event (the claimed assault) sufficient to
    trigger VA’s duty to provide an examination. R. at 7 (citing McLendon v. Nicholson, 20 Vet.App.
    79 (2006)). The Court’s conclusions in part II.A, supra, that the Board failed to properly consider
    the circumstantial evidence of the alleged sexual assault–as required by regulation, VA manual
    provisions, and caselaw–and to fully explore the veteran’s proffered explanation for the discrepancies
    in her lay statements undermine the Board’s finding in this regard. Therefore, on remand, the Board
    must reexamine the evidence of record pertaining to the claimed in-service assault and decide anew
    whether the veteran is entitled to a VA medical examination based on that evidence. See Fletcher
    v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the
    justification for [the Board’s] decision.”).
    The veteran is free to submit additional argument and evidence on remand 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 also reminds the Board that a remand must be performed
    in an expeditious manner in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    Upon consideration of the foregoing, the December 15, 2011, Board decision is SET ASIDE
    and the matter is REMANDED for further development, if necessary, and readjudication consistent
    with this decision.
    DATED: March 7, 2013
    12
    Copies to:
    Virginia A. Girard-Brady, Esq.
    VA General Counsel (027)
    13

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