Proving Military Sexual Assault When the Incident Was Not Reported

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As a veterans’ disability lawyer who represents the victims of military sexual assault, I know how frustrating it can be when VA denies a claim for PTSD. The trauma and devastation of being sexually assaulted often causes deep shame and guilt.  There is often a corresponding hesitancy to report the attack.  This is especially true of male victims of military sexual assault. Often times the perpetrators of these vile attacks threaten their victims, which further discourages the victim from reporting the attack.

So, if there is no mention in your service treatment or personnel records, how are you going to prove that the attack took place? As you know, when it comes to PTSD claims for non-combat situations, the VA regulations require the corroboration of a stressor. But if you never told anyone and never reported the incident, how are you going to corroborate the PTSD stressor? 

Over the years we have won many military sexual trauma cases involving situations where the attack was not reported. In fact, the majority of cases we see as veterans appeals lawyers involve military sexual assault stressors that are not reported anywhere. Let’s face it, if the attack was carefully documented in your service records the claim would be granted and you wouldn’t need to file an appeal.

So how do you prove something happened in the service when it was never reported? Here’s what the regulation says:

“If 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. . . 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. . .” 38 C.F.R. § 3.304(f)(5). 

The idea behind the regulation is that most victims of this type of assault tend not to report it. The VA has officially recognized that because personal assault “is an extremely personal and sensitive issue many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor.” Manual M21-1MR, Part IV, Subpart ii, 1.D.17.a. This means that we look to circumstantial factors that tend to suggest that something happened in service.

For example, I had a case where my client was raped. The perpetrators were in his unit, and so he repeatedly devised “reasons” why he needed to be transferred. And indeed, in his case, his file was replete with multiple requests for transfer.  The argument we made was that the requests for transfer evidence his attempts to escape the perpetrators. Even though the request to transfer made no mention of the rape, we were still able to use this piece of circumstantial evidence to corroborate the stressor.

In other cases, the people that knew the veteran before and after service can provide testimony about drastic changes in behavior following the date of the military sexual assault. Again, changes in behavior are evidence that can be used to corroborate a stressor.  Similarly, we tend to see drastic changes in work performance, with a decline in performance after the military sexual assault. Sometimes the victims will start to develop problems in getting along with others or they receive Article 15s for things they never would have done before. The idea is that the evidence often shows a drastic change for the worse after the attack, which allows a veterans benefits lawyer to argue that the changes in behavior corroborate the stressor.

Another common scenario is that after a victim of military sexual trauma experiences such an attack, he or she will turn to drugs or alcohol. Frequently, the veteran never had a problem with substance abuse before the attack, but the mental stress of coping with such a traumatic event often leads people to self-medicate with drugs or alcohol. If we see a drastic start to the use of drugs, we can argue that this is evidence that something happened in the service. I have also had cases involving victims contracting HPV or some other venereal disease. This is very powerful evidence in favor of the occurrence of a sexual assault. Other evidence could include visits to a chaplain, pregnancy tests, the break-up of a primary relationship, or somatic-type physical complaints indicative of underlying mental stress.

Further, as a veterans disability attorney, to build a strong case I will usually obtain an expert medical opinion from a psychiatrist, stating that the changes in behavior, requests for transfer, drug use, etc., were all evidences of an underlying psychiatric stressor. Usually, an expert is needed to interpret the circumstantial evidence and explain how such behavior is typical of the victims of military sexual assault. 

So, if VA has denied your claim based on military sexual assault because there is no proof that the incident took place, you want to look very carefully at how your life changed after the attack and argue that such changes establish that something happened during service.  If VA has denied your claim for military sexual trauma, you would be wise to consult a veterans disability lawyer to assist with your veterans appeal.

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Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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