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 - Introduction through III. MST as an Aggravation of Pre-Enlistment Sexual Trauma A. The VA's Concept of Aggravation of Nonservice-Connected Injuries, p. 343-392

INTRODUCTION

Military Sexual Trauma (MST) is an imprecise term that basically relates to "sexual assault or repeated, unsolicited, threatening acts of sexual harassment that occurs during military service." (1) Despite a variety of definitions for "sexual assault" and "sexual trauma" (e.g., some including verbal harassment), (2) and differences in populations sampled (e.g., active duty members versus treatment-seeking veterans), (3) estimates consistently indicate that that just over 20% of females and 1 % of males are sexually assaulted in a physical manner during their service. (4) The numbers rise substantially to 20% of males and 70% of females in studies where verbal trauma is included in the definition. (5) Importantly, the term MST was "created to capture the different forms of sexual maltreatment reported by military personnel." (6) Thus, MST "is not a syndrome, diagnosis, or construct associated with clear treatment indications." (7) Instead, it represents a type of stressor that can result in such maladies. (8) Recent and renewed interest in the MST epidemic has resulted in legislative proposals to revamp the entire military justice system to hold perpetrators accountable and encourage survivors to report their abuse, (9) as well as ongoing efforts within the Department of Veterans Affairs (VA) to accommodate MST survivors' needs for medical treatment and empathic, bias-free benefits adjudication. (10) However, commentators emphasize the likelihood that pervasive systemic oversights within the VA and the Department of Defense (DoD) will result in continued incidences of MST among active duty service members and the erroneous denial of VA benefits to MST survivors who, in many cases, desperately need and rightfully deserve them.

While legal clinics and scholars have suggested broad reforms of VA and DoD policies on MST in the long term, (11) this Article offers a short-term practical orientation for working within the current constructs for documenting, substantiating, and adjudicating MST claims. We focus mainly on the issue of disability compensation because of its instrumental value to MST survivors, above and beyond the current free health care at VA facilities that has been made available to any person who claims to have suffered from MST, even if a former service member would otherwise be ineligible for the full array of VA benefits. (12) Although the VA offers survivors the ability to obtain care for MST-related psychiatric and physical conditions, it struggles to overcome significant hurdles facing MST survivors.

For example, many veterans face: (1) tremendous discomfort requesting benefits for sexual assaults, especially from revisiting the details of their abuse; (13) (2) residual effects of the VA's historic difficulty maintaining sensitivity to gender which manifests in male survivors having to interact with VA programs that focus almost exclusively on women's needs, (14) and female survivors often fearing that they may have to interact with male veterans at VA facilities who appear little different than their abusers, even if the facility has professionals with specialized services oriented to women; (15) (3) the VA's affiliation with the military, which can fuel concerns that the VA represents the same interests as a military organization that quite possibly ignored the survivor's complaints or even retaliated against the survivor for making a complaint regarding the victimization; (16) (4) an adjudicatory system that requires MST survivors to prove by a 50% chance or greater that their assault occurred, despite presumptions of service-connection for combat-related mental or physical conditions; (17) (5) the fact that the VA continues to deny a significant number of MST claims, which undermines the VA's efforts at outreach to this population of survivors, specifically; (18) and, most significantly, (6) the fact that health care alone cannot address the significant consequences of MST on one's employment opportunities and employability, which often results in women victims' suspicion and distrust of male coworkers and a variety of other consequences, especially those related to self-sufficiency and independence. (19) For a combination of these reasons, free treatment at VA facilities for MST-related physical and mental conditions is not appealing or effective enough alone to meet the needs of MST survivors, a majority of whom have long-term needs related to their victimization while serving in the military. This may explain why a disproportionately high number of eligible veterans who suffered MST do not ultimately apply for VA benefits. (20)

This Article draws on the authors' combination of twenty years of experience within the military justice and VA system. We recognize the symbolic value of VA disability compensation as an incentive to file with VA, a way to offset the lack of steady employment income, and the freedom to pay for health care that is more variable and available through professionals with no connection to VA hospitals, clinics, patients, or programs. (21) The challenge presented is identifying a methodology to increase chances of success in the application process. To attain the objective, this Article is divided into five parts. Part II begins by identifying the patchwork of VA standards for adjudicating claims for service-connected disabilities arising from MST. These standards exist in a patchwork of agency, regulatory, and legislative rules which are often inconsistently applied at different levels of review within the VA's appellate structure. (22) Recognizing, for example, that adjudicators at the front-line Regional Office level are the most vital links to necessary benefits, (23) we take due care to examine the standards upon which they rely, particularly when they are not common to or even differ from the Board of Veterans' Appeals (BVA) and the United States Court of Appeals for Veterans Claims (CAVC) analyses.

After describing general considerations applicable to all MST adjudications, Part III eschews the traditional approach of treating MST as a unitary experience. Our experience litigating sexual assault cases in the military and evaluating MST-related decisions from the VA's Regional Offices reveals that certain characteristics of perpetrators, survivors, the manner in which the trauma was perpetrated, and the manifestation of symptoms over time raise unique evidentiary and practical considerations. In other words, factors related to the nature of the assault or harassment place a premium on different forms of evidence. For example, MST perpetrated upon men is entirely distinct from that perpetrated on women, and these, in turn, are distinct from MST involving solely verbal harassment. While the manner of inflicting trauma and its resulting effects might be nearly infinite, in this Part, we focus on the two overarching issues that have been overlooked in the scholarship, but which are raised--implicitly--in a substantial number of MST claims: cumulative trauma, i.e., the interaction of multiple traumatic experiences over the veteran's life course, and hazing-related MST. (24)

While anyone can be a victim of MST, the reality of re-victimization of former sexual assault and abuse survivors raises special considerations among those with pre-enlistment assault histories requiring the survivor to demonstrate not only that the military trauma occurred, but furthermore that existing symptoms can be traced to it, rather than an earlier traumatizing experience. (25) For mental conditions related to hazing, the sexual aspects of hazing incidents are often overlooked by the survivors and the professionals who may be assisting them. Because the VA has no special provisions for hazing-related claims during the benefits adjudication process, we highlight the manner in which most hazing is, in fact, sexual and rises to the level of MST, providing a vehicle to obtain benefits under a different set of special standards. Neither of these issues is addressed in the rubric of MST in either VA or scholarly literature on the topic, despite the pivotal nature of these issues in influencing VA benefit eligibility.

In evaluating these two distinct forms of MST, we utilized not only our own legal experience with the DoD and VA, but we also spent several months, with the assistance of attorney Kate Buzicky, (26) cataloging a sample of 2,170 MST-related cases decided between 2002 and 2012 within the BVA's voluminous Decision Search database. (27) By relying upon this heretofore-untapped resource and by coding various decisions by key variables, (28) we compensated for the lack of an indexing system and culled important lessons about distinctions between types of MST claims and unique considerations related to these topics. It is our objective here to provide survivors and their supporters with the ability to quickly identify issues and evidentiary requirements that relate to the specific types of harm they suffered, rather than expecting them to synthesize an overwhelming amount of unfiltered material.

Having identified the VA's general MST considerations and special considerations related to often-missed patterns of MST, Part IV offers a tool that will empower front-line MST responders--whether they are Special Victims Prosecutors, Chaplains, Sexual Assault Response Coordinators, Victim Advocates, or friends--to maximize survivors' chances of a favorable VA benefit determination whenever they decide to file a claim. Considering that delayed reporting and the loss of valuable evidence accounts for the denial of most MST claims, survivors of MST must have the ability to capture evidence that will matter in a VA benefit determination as close in time to the trauma as possible. Law enforcement cannot collect evidence and military organizations cannot respond to MST until a survivor reports the abuse, and, too often, reports are delayed by so many years that...