Maximizing VA benefits for survivors of military sexual trauma: a practical guide for survivors and their advocates.

• Author: Seamone, Evan R.
• Position: Dept. of Veterans Affairs - Appendices and footnotes, p. 439-487

APPENDIX A: VA DISABILITY APPEALS PROCESS FLOW-CHART

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APPENDIX B: THE MST CLAIMS DEVELOPMENT PROCESS FLOW-CHART

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APPENDIX C

This form is part of the public domain. See 17 U.S.C. [section] 105.

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APPENDIX D

This form is part of the public domain. See 17 U.S.C. [section] 105.

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APPENDIX E

In addition to the alternate sources listed in 38 C.F.R. [section] 3.304(f)(5), a non-exhaustive list of behavior change markers includes the following:

* visits to a medical or counseling clinic without a specific diagnosis or ailment;

* sudden requests for a change in occupational series or duty assignment without other justification;

* increased use or abuse of leave without apparent reason;

* changes in performance or performance evaluations (either a decline or unusual increase);

* episodes of depression, panic attacks, or anxiety without identifiable causes;

* increased or decreased use of prescription or over-the-counter medications;

* substance abuse such as of alcohol or drugs;

* use of pregnancy tests or tests for sexually transmitted diseases around the time of the incident;

* increased disregard for military or civilian authority;

* obsessive behavior such as over- or under-eating;

* unexplained social or economic changes such as not paying bills on time, uncharacteristic requests to borrow money, withdrawal from friends and social activities following traumatic event;

* breakup of a primary relationship;

* treatment for physical injuries around the time of the incident, but not reported as a result of the incident;

* a quick decision to marry an individual; or

* getting pregnant and leaving service. (478)

Opportunities for marker spotting within a claims file are nearly endless. However, some practical examples are in order. Consider the following:

* Claimant reports being sexually assaulted and allegations are investigated (and perhaps the perpetrator is prosecuted in service);

* Claimant reports to sick call telling a male medic that she wants a female medic or referral to gynecology clinic;

* Claimant disciplined for failure to report for duty or drinking on duty, arrested for being drunk and disorderly following the claimed assault, and/or referred for participation in a substance abuse treatment program;

* Claimant visits chaplain who thereafter advocates for an expeditious discharge from service;

* Claimant seen for psychological counseling for emotional outbursts or depression, requests testing, or receives treatment for urinary tract infections or sexually transmitted diseases around the time of the claimed assault;

* In-service PTSD diagnosis;

* Claimant treated for physical injuries such as black eye, broken bones, anal injuries, or lacerations and bruises around the time of the claimed assault;

* Claimant requests pregnancy test approximately two to three months after claimed assault (or gives birth or miscarries approximately nine months after);

* Claimant's parents or siblings provide statements that the claimant reported being sexually assaulted after the incident occurred;

* Claimant's roommate or fellow service buddy provides statements regarding claimant's unexplained use of leave, performance decline (or overcompensation), and/or socially avoidant behavior;

* Claimant requests separation from service, but complete summary of visit not included in records, separation from service based on immaturity, poor communication skills, or an inability to pass physical training tests (despite being an accomplished soldier), or ongoing disciplinary problems (without prior evidence of disciplinary problems). (479)

Appendix F

This appendix contains excerpts from the BVA's remand order to a mental health evaluator, applying the current standards for determining Allen aggravation to a claim which involved both a rape perpetrated at the age of 13 and a later rape occurring during military service. The stepwise progression, which includes mention of specific thresholds for analysis should be useful in assisting evaluators in approaching similar cases involving MST. There is notably, however, no specific methodology provided for the manner in which to assess a pre-aggravation baseline, as required by the 2006 amendment. (480)

1. Schedule the Veteran for a VA mental disorders examination to determine the causation or etiology of her current PTSD and/or any other current psychiatric diagnoses, as well as to determine whether the Veteran has a chemical dependency that is secondary to any diagnosed psychiatric disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a complete rationale for any opinion expressed should be provided. The relevant documents in the claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished.

   1. The examiner should first identify any and all current psychiatric disorders (diagnoses), commenting specifically on post-service treatment records which document current diagnoses of anxiety disorder with depression and panic attacks and PTSD.

   2. Next, the examiner should offer the following opinion: Did the Veteran have a psychiatric disorder that clearly and unmistakably (i.e., obvious and manifest, which is a very high likelihood, much greater than a [50/50] degree of probability) pre-existed her entrance into military service in 1977? If so, what was the nature of such preexisting psychiatric disability? In offering this opinion, the examiner should specifically address the factors of the pre-service divorce of the Veteran's parents, a pre-service rape at the age of thirteen, and substance abuse problems prior to enlistment in service.

   3. If it is the examiner's opinion that a psychiatric disorder pre-existed the Veteran's entrance into military service, offer the following opinion: Was the preexisting psychiatric disorder clearly and unmistakably not aggravated (not permanently worsened in severity) in service?

   4. Alternatively, if it is your opinion that there was aggravation (permanent worsening in severity) during service, what was the pre-existing baseline level of the psychiatric disability prior to such aggravation? The examiner should specifically comment on the notation of excessive worry and nervous trouble at the time of enlistment in 1976, the in-service psychiatric evaluation in June 1980, the psychiatric diagnoses noted on the July 1980 separation examination report, and the multiple post-service treatment records relating the Veteran's current psychiatric troubles to pre-service traumas.

      Note: The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

   5. If the examiner concludes that the Veteran's PTSD and/or other current psychiatric disorder(s) did not pre-exist service, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any currently diagnosed psychiatric disorder, to include PTSD, was incurred during or caused by active service. The examiner should specifically comment on whether the Veteran's claimed in-service stressors of almost being run over and being raped are sufficient to support a PTSD diagnosis using the DSM-IV criteria, and whether the Veteran's current PTSD was caused by those stressors.

      Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

   6. The examiner shoulder offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's chemical dependency has been caused by the Veteran's PTSD or other psychiatric disorder (including as a component or symptom of PTSD or other psychiatric disorder). The examiner should provide an explanation for the opinion reached, and should specifically comment on the Veteran's pre-service substance abuse problems, as well as the April 1992 psychiatric evaluation which opined the pre-service rape possibly played a part in the Veteran's substance dependency.

   7. The examiner should offer an opinion whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's chemical dependency has been aggravated (permanently worsened in severity) by the Veteran's PTSD or other psychiatric disorder (including as a component or symptom of PTSD or other psychiatric disorder). The examiner should provide an explanation for the opinion reached, and should specifically comment on the Veteran's pre-service substance abuse problems, as well as the April 1992 psychiatric evaluation which opines the pre-service rape possibly played a part in the Veteran's substance dependency.

      Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability.

   8. If the examiner opines that the Veteran's chemical dependency was aggravated (permanently worsened in severity) by her PTSD and/ or other psychiatric disorder, the examiner should attempt to identify the baseline level of severity of the chemical dependency before the onset of aggravation. The examiner should provide an explanation for the opinion reached.

   9. If the opinion and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should so specify...