Military Sexual Trauma (MST) and VA Disability Compensation

Miltary Sexual Trauma (“MST”) is when a servicemember is a victim of sexual assault, forced or coerced into sexual activities, or exposed to “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”[1]  Due to the nature of the military, its esprit de corps, its command structure, and the potential for severe retaliatory action, most sexual harassment and assaults go unreported.

stockfresh_8574877_woman-showing-a-note-with-the-text-me-too_sizeS-300x200Because of the gross underreporting of MST, it can be difficult for an MST survivor to accumulate enough credible evidence that the in-service event occurred to support his or her claim.  The VA cannot use the absence of an MST report in a Veteran’s service record as evidence that the event did not take place;[2] however, the Veteran cannot simply rely upon his or her statements that the event did take place.  He or she must submit additional credible evidence.  The VA details possible evidence which can corroborate the Veteran’s statements in 38 C.F.R. § 3.304(f)(5),[3] which states:

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.[4]

The VA further gives examples of such behavior changes that may constitute credible evidence as including 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.[5]

This is important because the VA often denies mental health claims which have a substance abuse component on the grounds that a majority of the mental symptoms stem from the substance abuse, for which the VA cannot grant direct service-connection.  If this happens, the above-quoted regulation should be cited, along with clarifying that any alcohol or substance abuse is secondary to the MST and serves as credible evidence that the MST took place.

Most survivors of MST file a claim for PTSD, however, their symptoms may more closely resemble another mental health condition such as major depressive disorder, panic disorder, or generalized anxiety disorder.  Even though the VA must consider other mental health conditions regardless of what the Veteran filed for,[6] it is better for a Veteran to file for a broad “mental health condition” instead of for a specific diagnosis or condition.  If the VA denies a claim for PTSD, stating that all the axes of PTSD have not been met, the Veteran should appeal and state in his or her appeal that the Veteran is not expected to be a mental health professional and is incapable of knowing exactly what condition he or she has.  The Veteran should also state that the VA is required to evaluate the Veteran for all other mental health conditions.

Sometimes when the VA sends a Veteran to a Compensation & Pension Examination (“C&P Exam”), the examiner states that he or she does not believe that the MST took place.  Usually, a medical or mental health examiner cannot opine upon whether a stressor event took place;[7] however, in PTSD claims based on a personal assault or MST, a medical opinion based on a postservice examination of a Veteran can be used to establish the occurrence of a stressor.[8]  This means that if the Veteran has filed a claim specifically for PTSD or has a diagnosis of PTSD due to the MST, the VA is allowed to submit the evidence of record to a medical or mental health professional for an opinion as to whether the evidence indicates that MST occurred.  This is another reason to file a claim for “mental health condition” as opposed to for “PTSD.”

If any other servicemember was potentially injured during the MST, for example if the assailant was also a servicemember and he or she might have been injured during the assault, it is important for the Veteran filing the claim to identify the other servicemembers as much as possible so that the VA can attempt to order the medical and service records of the other servicemember in an attempt to corroborate the MST.[9]

Tod is a service-connected Veteran of the United States Army and a partner at the law firm of Grimes Teich Anderson LLP, in charge of the firm’s Veterans Law section.  His firm has offices in North and South Carolina, and his Veterans practice is national. 

[1] 38 U.S.C. § 1720D(f); https://www.mentalhealth.va.gov/docs/mst_general_factsheet.pdf.

[2] AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013).

[3] 38 C.F.R. § 3.304(f)(5) states “[i]f a posttraumatic stress disorder 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.”  It does not state this same evidence cannot corroborate the Veteran’s account for mental health conditions other than PTSD.

[4] 38 C.F.R. § 3.304(f)(5).

[5] Id.

[6] Clemons v. Shinseki, 23 Vet. App. 1 (2009).

[7] Sizemore v. Principi, 18 Vet. App. 264 (2004).

[8] Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011)

[9] See Molitor v. Shulkin, 28 Vet. App. 397 (2017).

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