Proving Military Sexual Assault when the Rape Was Unreported at the Time It Occurred

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As a veterans disability lawyer that represents victims of military sexual assault, I thought I would share a common scenario to assist the readers of this blog who may be dealing with a recent VA denial of a claim for military sexual trauma or MST.  The facts of this typical MST case involve an in-service sexual assault.  But what’s important in this case is understanding the extent to which you can use a report from a mental health professional obtained after the fact to assist in corroborating the in-service personal or sexual assault.

In this case the veteran reported that he was attacked and sexually assaulted during boot camp.  He did not report the rape at the time because he was ashamed, horrified, and humiliated.  He thought that that not telling anyone was the right thing to do and instead he tried to get away from his attacker by making several excuses for a transfer.   During examination, the veteran was clear in his assertion that he got himself transferred by complaining about things other than the sexual assault and the claims file corroborated the veteran’s multiple transfers to different occupational specialties.   

The VA provided the veteran with a C&P exam.  The VA examiner observed that the veteran never disclosed the nature of the attack to anyone.  Most importantly, the VA doctor opined that the veteran had PTSD related to the claimed in-service assault. 

However, the VA Board still denied the claim.  In this case, the applicable regulation is 38 C.F.R. § 3.304(f)(5).  This provision states, in relevant part:“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) (emphasis supplied). 

So, the scenario here involved a favorable C&P exam report to the extent that the examiner found that the veteran had PTSD due to the military sexual trauma or MST.  But the Board denied the claim on the grounds that the stressor was not verified. In its denial of the claim,  the Board failed to account for the VA exam report that corroborated the in-service stressor. 

Until recently, the CAVC has held that a post-service psychiatric opinion could not be used to establish the occurrence of an in-service stressor.  See Cohen v. Brown, 10 Vet. App. 128, 145 (1997).  However, in Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011), the Federal Circuit held that under 38 C.F.R. § 3.304(f)(5), medical opinion evidence may be  used to help determine whether an in-service stressor is corroborated.  The Federal Circuit observed that section 3.304(f)(5) affords a veteran claiming PTSD from an in-service personal assault to submit evidence other than in-service medical records to corroborate the occurrence of a stressor. Id.  The Court noted that the regulation specifically designates that medical opinion evidence may be submitted. Id.  Therefore, the Federal Circuit held that the CAVC erred when it determined that a medical opinion based on a post-service examination of a veteran cannot be used to establish the occurrence of a stressor.  Id

In this case, the VA examiner opined that the veteran had PTSD related to the claimed in-service stressor.  The Board apparently omitted the analysis of the VA exam report on the grounds that it did not find the stressor credible.  By doing so, the Board violated the Federal Circuit’s ruling in Menegassi.  The Board should have weighed the VA examiner’s opinion when assessing the overall credibility of the claimed stressor.  Its failure in this regard constituted grounds for a remand back to BVA for a new decision.

If you have been a victim of military sexual trauma and are seeking service-connected compensation for PTSD, it is important to take advantage of the Federal Circuit’s ruling in Menegassi and submit medical evidence to assist in corroborating the stressor.  In my professional opinion, as a veterans disability attorney, you should not rely entirely on a post-service medical opinion because it it may not be enough to corroborate the stressor.   A post-service medical opinion should be part of the overall mix of evidence that you submit to establish service connection. 

The type of reports I find useful to establish service connection are ones that  demonstrate that your symptoms matche the profile of a victim of military sexual trauma.  This evidence should be combined with evidence that highlights any of the circumstantial factors that are covered by by 38 C.F.R. § 3.304(f)(5) such as behavioral changes, etc.  The expert should give the opinion that the behavior changes noted in the record represent the markers of a PTSD stressor. 

If you or someone you know has been denied PTSD based on military sexual trauma, I invite you to contact our veterans benefits law firm to discuss how we may be able to help. I also encourage you to download our Guide to Disability Benefits. 

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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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