Single Judge Application, 38 C.F.R. 3.304(f)(5); Personal Assault; Behavioral Changes; Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011):

Excerpt from decision below: "38 C.F.R. § 3.304(f)(5), which states: 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 . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . 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 . . . ; 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). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), " medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0376 ROBERT R. WAYNE, APPELLANT, V. ERIC K. SHINSEKI, Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Robert R. Wayne, appeals through counsel an October 19, 2009, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Record of Proceedings (R.) at 3-11. 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. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the October 19, 2009, Board decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Air Force from October 1962 to June 1965. R. at 574. The present appeal stems from the appellant's February 2003 claim for entitlement to service connection for PTSD resulting from an alleged in-service sexual assault that occurred on August 5, 1964. R. at 653-70, 713-28. The appellant's service medical records (SMRs) are silent regarding the claimed assault. However, an SMR from that night shows that the appellant reported to sick call at 0300 hours with a laceration over his right eye, which required sutures, and a small laceration inside his mouth. R. at 669. Although the SMR contains a note that the appellant fell in his room, the appellant has stated that he did not tell the doctors the truth because his attackers had threatened to kill him if he reported the incident. R. at 30, 116, 141, 169, 213, 667. The appellant's medical records show that in July1966 he reported a "long historyof nervous problems associated with chest pain and weight gain." R. at 630. He was treated at the Iroquois Center for Human Development for severe depression and anxiety from June 1976 through December 1979. R. at 502, 504. Treatment records from 1993 through 1994 also show that he received treatment for major depressive disorder. R. at 310-44. The appellant was diagnosed with PTSD from military sexual trauma in 2002 and received individual psychotherapy at the Topeka, Kansas, VA Medical Center. R. at 687-92, 701-04, 708-12; see also R. at 40- 137, 255-86. Although the appellant has stated that he did not know the identity of his attackers (R. at 30, 170, 220), an April 2007 VA psychiatrist's note includes a notation that the "[patient] found out that his attacker from the military is dead and has stopped feeling like he needs to have a gun in his pick up." R. at 95. In 2003, the appellant submitted lay statements from his wife and daughter who related that the appellant told them about the in-service assault in, approximately, 1981. R. at 663-65, 725-27. The appellant's claim was denied in October 2004, then he initiated an appeal to the Board. R. at 204-07, 233-36, 237-49, 287-98. In July 2007, the Board remanded the matter for additional evidentiary development, including a VA PTSD examination. R. at 155-60. The Board's remand instructions included the direction that, if the appellant is diagnosed with PTSD, the examiner is asked to review the veteran's complete case file, and if feasible, . . . provide an opinion as to whether or not the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault. (The Board notes that the veteran's military performance reports showed improvement in the period after the date of the alleged assault, and that the veteran has averred that he was repeatedly counseled by his sergeant and threatened with formal disciplinary proceedings.) R. at 158-59. The appellant underwent a VA PTSD examination in July 2008, wherein he reported the details of the in-service assault, including that he did not know the identity of his attackers. R. at 29- 35. The examiner diagnosed the appellant with "[PTSD], chronic, military sexual trauma; major depressive disorder, severe, with psychotic features (due to [PTSD])." R. at 34. The examiner noted that she was asked to opine "whether the appellant's level of military performance after August 5[, 2 1964,] could be consistent with PTSD ([m]ilitary [s]exual [t]rauma)" and provided the following response: Symptoms patient [is] experiencing [are] consistent with PTSD (military sexual trauma)[.] [H]e has been treated for these symptoms in VA bydifferent providers for years. According to [the Diagnostic and Statistic Manual for Mental Disorders (4th ed. 1994) (DSM-IV),] PTSD symptoms can appear[] not necessarily after trauma. PTSD can havedelayed onset when symptoms could appearlater after stressful event happened. Mr. Wayne['s] PTSD symptoms are caused by military sexual trauma. R. at 35. In its October 19, 2009, decision here on appeal, the Board denied the appellant's claim of entitlement to service connection for PTSD. R. at 3-11. The Board acknowledged that there was evidence of a diagnosis of PTSD and a link, established bythe recent medical examination, between the appellant's current symptoms and an in-service sexual trauma. R. at 11. The Board denied the claim,however,becauseit foundnocrediblesupportingevidencethattheclaimedin- servicestressor occurred. Id. This appeal followed. II. ANALYSIS The appellant argues that the Board's finding that there is no credible supporting evidence that the claimed in-service stressor occurred is clearly erroneous and requires reversal. Appellant's Brief (Br.) at 9-16. Alternatively, the appellant argues that remand is warranted for the Board to provide an adequate statement of reasons or bases for its decision. Id. at 16-19. The appellant also argues, in the alternative, that a remand is warranted for VA to fulfill its duty to assist. Id. at 19-20. The Secretary concedes that a remand is warranted for VA to fulfill its duty to assist and requests that the Court not address the appellant's argument for reversal. Secretary's Br. at 6-9. In the alternative, the Secretary argues that the Board's decision is not clearly erroneous and is supported by an adequate statement of reasons or bases. Id. at 9-14. A. Applicable Law To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) "a link, established by medical evidence, between current symptoms and an in-service stressor"; and (3) "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f) (2011). Because "veterans face unique problems documenting their 3 claimed stressor in personal assault cases," the Secretary has "'provided for special evidentiary- development procedures' in those cases." Bradford v. Nicholson, 20 Vet.App. 200, 204 (2006) (quoting Patton v. West, 12 Vet.App. 272, 280 (1999)). These special procedures are detailed in 38 C.F.R. § 3.304(f)(5), which states: 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 . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . 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 . . . ; 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). In Previous HitMenegassiNext Hit v. Previous HitShinsekiNext Hit, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1. The Court reviews the Board's factual determination as to the sufficiency of corroborative evidence of the in-service stressor under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing Pentecost v. Principi, 16 Vet.App. 124, 129 (2002)) (regarding corroborative evidence). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm 4 conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must also provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds 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). B. The Appellant's Argument for Reversal This Court has held that "reversal is the appropriate remedy when the only permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). 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." Tucker v. West, 11 Vet.App. 369, 374 (1998). Because the appellant has requested reversal as the remedy in this case, and only argues alternatively for remand, the Court will address the appellant's arguments for reversal first. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) ( holding that "if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand" (emphasis added)). The appellant argues that the Board's finding that there is no credible supporting evidence that the claimed in-service stressor occurred is clearly erroneous because the 2008 VA medical examiner made a contrary finding. Appellant's Br. at 10. The Secretary attempts to refute this argument and incorrectly argues that "[a]n opinion by a mental health professional based on post[]serviceexamination ofa claimant cannot be used to establish occurrence of in-servicestressor, for purposes of service connection for PTSD." Secretary's Br. at 13 ( citing Cohen, 10 Vet.App. at 128). Although a mental-health professional's postservice examination generally cannot be used to establish the occurrence of an in-service stressor, Cohen, 10 Vet.App. at 145, the Court has found 5 the rule in Cohen not operative where the stressor arises from a personal assault. Patton, 12 Vet.App. at 280. Even assuming there was any doubt as to the applicability of Cohen in sexual assault cases, the Federal Circuit's recent decision in Menegassi, 638 F. 3d at 1382, clearly held that the Secretary's regulation, 38 C.F.R. § 3.304(f)(5), permits medical opinion evidence to corroborate an in-service stressor. See also 67 Fed. Reg. 10,330 (Mar. 7, 2002) (stating that "[o]pinions given by [medical or mental health] professionals are not binding upon VA, but instead are weighed along with all the evidence provided"). NotwithstandingtheSecretary'serroneous statementofthelaw,theCourt doesnot agreewith the appellant's interpretation of the 2008 medical examiner's opinion and therefore reversal is not warranted. See Gutierrez and Johnson, both supra. The appellant argues that the examiner "corroborated the assault by stating that [the appellant's] symptoms, particularly his flashbacks and nightmares, were consistent with such an assault." Id. at 15 (citing R. at 34). While it is true that the examiner attributed the appellant's current symptoms to the alleged in- service assault, the examiner did not answer the salient question posed, i.e., whether the appellant's behavior following August 5, 1964, is consistent with a reaction to a sexual assault. R. at 159. In this regard, the Court notes that both the examiner and the Board incorrectly stated that the examiner was asked to opine "whether the [v]eteran's level of military performance after the date of the alleged rape could be consistent with his having experienced the sexual trauma."1 R. at 8; see also R. at 35. However, as noted above, the Board's 2007 remand instructions posed a broader question, i.e., "whether or not the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault." R. at 158-59; see Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders, and the Board itself errs when it fails to ensure compliance with the terms of such a remand). This distinction is significant because a "deterioration in work performance" is only one example of behavior changes that may constitute credible evidence of the stressor. See 38 C.F.R. § 3.304(f)(5). The Court further notes that not only did the examiner misconstrue the question she was asked, but she also failed to answer even this narrow question. See R. at 35. 1 6 The Court therefore finds that the examiner's failure to answer the question whether the appellant's behavior following August 5, 1964, is consistent with a reaction to a sexual assault renders the report inadequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 ( 2007) (holding that "once the Secretary undertakes the effort to provide an examination when developing a service- connection claim, . . . he must provide an adequate one"); see also Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (stating that the Board may not assess the probative value of "a mere conclusion by a medical doctor"). When a report is confusing or incomplete, the Board should remand the case for clarification or obtain a new report. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"). Accordingly, because the VA medical examiner's report is inadequate, the Court finds that the appropriate remedyis to remand the matter to the Board for further development. See Barr, Tucker, and Stegall, all supra. C. The Board's Statement of Reasons or Bases 1. The 2008 Examiner's Report The Court notes that even if the VA medical examiner had opined, one way or the other, whether the appellant's behavior was consistent with an in-service assault, the Board would not have been bound by the examiner's determination. Rather, as noted by the Federal Circuit in Menegassi, "the submission of a medical opinion, pursuant to 38 C.F.R. § 3.304(f)(5), does not preclude the Board from making a factual determination regarding the weight to be given that opinion." 638 F.3d at 1382 n.1. In the instant case, the Board attempted to rehabilitate the examiner's opinion by stating that she "indirectly answered th[e] question [posed] bynoting that the [v] eteran's (current) symptoms are consistent with PTSD, and not[ing] that the DSM[-]IV PTSD symptoms can appear not necessarily after trauma, but can have delayed onset." R. at 8-9 (emphasis added). This is problematic for two reasons. First, the Court is unable to understand how the examiner's general statement that PTSD symptoms can have "delayed onset" answers the true question that was posed, i.e., "whether or not 7 the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault." R. at 159. Second, the Board's discussion of the examiner's report stopped short of drawing any conclusion whether it corroborated the in-service stressor, which was part of the purpose for the examination. Hence, even assuming the Court did not find the examiner's report inadequate, the Board's statement of reasons or bases fails to provide an adequate discussion of the probative weight of the doctor's opinion for the Court to review. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous); see also Allday, Caluza, and Gilbert, all supra. 2. The Appellant's Lay Statements The Court will also address the Board's discussion of the appellant's lay evidence because it necessarily relates to any subsequent medical opinion that is based upon those laystatements. See Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) ("[R]eliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran."); Kowalski v. Nicholson,19 Vet.App. 171, 179-80 (2005) (holding that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (stating that Board may reject a medical opinion based on facts previously found to be inaccurate); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that Board may not reject a veteran's lay testimony merely because it is not corroborated by contemporaneous medical records). Undoubtedly, as the finder of fact, it is the Board's province to determine the credibility and probative weight of the evidence before it. Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005 ); Owens, supra. Here, the Board noted that there was an inconsistency between the appellant's statements that he did not know the identity of his attackers, and "elsewhere in the record, where he indicates that he learned that his assailant had died, so he no longer needed to carry a gun." R. at 10. The Board then found that "this sort of inconsistency regarding what he knew leads the Board to find a lack of credibility." Id. Without more, the Court is unable to discern whether the Board's credibility finding is limited solely to whether the appellant knew the identity of his attackers, or whether the Board has 8 discounted the appellant's lay statement's entirely based on this single notation in a medical record. Hence, on remand, the Board must provide a clearer statement regarding its assessment of the appellant's layevidence and provide an adequate statement of reasons or bases for its rejection of any such favorable evidence. See Allday, Caluza, and Gilbert, all supra. D. The Appellant's Remaining Arguments Because the Court has determined that remand is the appropriate remedy, the Court will not at this time address the remaining arguments and issues raised bythe appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 ( 2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) ( per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the October 19, 2009, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: July 18, 2011 Copies to: Katy S. Clemens, Esq. VA General Counsel (027) 9