“Will anyone believe me?” That is the question that goes through the mind of almost everyone who has endured a sexual assault or sexual harassment. A high proportion of military sexual trauma (MST) survivors do not make any formal report about what happened to them, and as time passes they find that the trauma continues to affect them.
As they (maybe you) sit down to prepare to file a VA disability claim, that nagging question may return, this time phased “how do I prove military sexual trauma to the VA”?
This article will outline various ways of proving your case.
According to the VA, the term MST means sexual assault or sexual harassment experienced during military service. Examples the VA cites are being pressured or coerced into sexual activities, such as with promises or threats, non-consensual sexual conduct (such as when you were asleep or intoxicated), being forced to have sex, being touched in a sexual way that made you uncomfortable, comments about your body or sexual activities that you found threatening, or unwanted sexual advances you found threatening.
To receive VA disability compensation related to MST, you must have a current physical or mental health condition connected to those experiences.
MST is not, itself, a health condition. Instead, it can be a trigger for some type of health condition, often PTSD.
Proving MST to the VA as part of a VA disability claim application may seem a mammoth task, particularly if you did not make a formal report at the time of occurrence, but even if you didn’t make a formal report, there is evidence that may help you prove your claim.
Remember that the MST claim process is almost the same as for other types of disability. Your “disability” is the current mental or physical condition you are experiencing; proving military sexual trauma to the VA in this context is about demonstrating the existence of the traumatic event and the nexus between it and your current condition and symptoms.
In evaluating a military sexual trauma VA disability claim, the VA examiners will be looking at three things: (1) do you, the veteran, have a current disabling condition (often with MST-claims, this is PTSD); (2) is it the result of, or aggravated by, something that happened during military service (for example, an MST); and (3) is there a link between the two?
Evidence establishing may be direct or indirect, but if you know what to look for, you can start the process of finding and compiling those records to submit to the VA.
The easiest way to prove military sexual trauma occurred is through service records that contain explicit reference to it, medical or personnel records that cite it, DOD sexual assault or harassment reporting forms, and/or other military investigative reports of the incident. However, a large number of military sexual assaults and harassment never get reported. It’s hard to get precise numbers, but some research suggests that at least 25% of victims do not report for fear of retaliation, and widespread belief that reports will not be taken seriously or handled fairly.
If the easiest way isn’t available, that’s okay, there are other ways to prove your case.
The VA will accept other types of records to prove the occurrence of a sexual trauma event. Often a survivor of a rape or other sexual trauma will reach out to someone or some agency outside of the military to confide their secret. These non-military records can be located and submitted as part of your MST-related VA disability claim.
These include reports made to a chaplain or clergy, civilian counseling facility or health clinic, rape crisis center, faculty, family members or roommates, fellow service members, civilian medical records, civilian law enforcement records, or personal journals or diaries. Only you are going to know how to identify which of these people or places might have records to support your claim. Create a list. Find contact addresses and phone numbers. Collect records you still have in your possession.
The VA will also review indirect evidence of your MST. Records which the VA will consider are those showing “markers,” indirect indicia that something traumatic happened to you around a certain time. Some examples that the VA consider are changes in work performance, episodes of anxiety, depression, panic attacks without any other clear cause, pregnancy and/or SDT tests, relationship issues (breakups, divorces), requests for transfer to another duty assignment, sexual dysfunction, alcohol or other substance abuse, and unexplained social or economic behavior.
Your VA disability claim appeal attorney may work with you to help identify and document any of this direct or indirect evidence that will help you prove to the VA that your current condition is connected to an MST.
If the VA initially denies your MST-related disability claim, understand that you are not alone, and that there are multiple steps you can take to change their minds. Don’t give up. Talk to a VA Disability Claim Appeal attorney who can review the decision you received and your underlying claims file and recognize any paths to a better outcome that they can help you achieve.
If your MST-related claim was denied before August 2018, the VA encourages you to reapply. New processes and procedures have been implemented in recent years, including specialized training of VA staff that reviews MST-related claims. If you want a re-evaluation of a previously denied MST-related claim, you can contact an MST Outreach Coordinator at your local VA Regional Office, or by going online.
For more recent denials, you may file an appeal. The most recently adopted structure for appeals gives you three pathways to appeal: (1) a Higher Level Review which is a second review of your claims file without any new information being added; (2) a Supplemental Claim allows you to submit new information to be added to your claim file; or (3) Board Hearing which allows you to have a live hearing (in person or remote) which is sometimes the best way to explain your case.
A VA disability attorney will be able to guide you through the process of deciding which mode is best under the circumstances of your claim.
Yes, you should explore your options with a VA disability claim appeal attorney if your MST-related disability claim has been denied or your VA disability rating seems to be too low. VA claim appeals have a much higher success rate than original claim applications, and veterans utilizing private attorneys to represent them on appeal, according to VA statistics, have the highest level of success.
Can you just get some assistance from a VSO?
You can, but that route has its limitations. As the Federal Circuit court has said, “although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are ‘not generally trained or licensed in the practice of law.’”
VA disability attorneys are somewhat of a niche type of law practice. Look for a firm that works exclusively on VA disability appeals and look for one that handles MST claims; not all law firms do.
If you could get the outcome you wanted on your own or with the help of a VSO, you probably wouldn’t be reading this article.
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Are you ready to get an experienced VA disability attorney look at your MST claim denial or low rated claim?