A Recent Success for a Victim of Military Sexual Assault

The veteran came to our office after years of VA denials. Due to the nature of the assault, the veteran never told anyone about what happened. He made repeated efforts to get transferred away from the perpetrators and his service records reflected numerous requests for transfer for unrelated complaints. The veteran, due to intense shame, never disclosed the true reasons for his desire for transfer. Years later, unable to cope with the devastating psychiatric effects of this assault, he finally went to the VA for treatment. Even his VA psychiatrist confirmed that he had severe PTSD as a result of military sexual assault.

The Board ignored the statements of his VA psychiatrist. Until recently, the U.S. Court of Appeals for Veterans Claims 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 submitted for use in determining whether the occurrence of a stressor is corroborated. Id. at 1382. 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 veteran’s court 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.

Because the Board apparently dispensed with the analysis of the VA exam report on the grounds that it did not find the stressor credible, we successfully argued that the Board violated the Federal Circuit’s ruling in Menegassi. For any veteran who has been the victim of in-service sexual assault, the Federal Circuit’s ruling in Menegassi is an important development.