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 - III. MST as an Aggravation of Pre-Enlistment Sexual Trauma B. The Five Elements of Secondary Service-Connection through Conclusion, p. 392-438
 
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  1. The Five Elements of Secondary Service-connection

    Secondary service-connection, as opposed to primary service-connection, addresses those situations where the "increase in severity of a nonservice-connected disease or injury ... is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." (272) In the simplest terms, the theory permits VA benefits for "additional disability resulting from the aggravation of a nonservice-connected [secondary] condition by a service-connected condition." (273) As the seminal Allen v. Brown CAVC opinion highlights, compensation in these scenarios will be limited solely to "the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." (274) According to the VA's position, any different standard permitting compensation for the entire injury would lead to "absurd results" where the government would be underwriting a host of harm contributors other than military service. (275) Under the guise of "Allen Aggravation," the VA more recently implemented a series of steps to evaluate claims involving aggravation of nonservice-connected conditions by service-connected ones.

    1. Worsening of the Condition During Service

      The primary inquiry addresses the factor of temporality, searching for evidence of a worsening of the veteran's condition during his or her service. Namely, "aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service." (276) Here, evaluators search specifically for evidence of psychiatric problems during service, instances in which the veteran sought psychiatric treatment or reported psychiatric problems--including those issues noted at the time of discharge--and any other evidence suggesting that the veteran suffered a psychiatric disorder during service. (277) If the claimant does not show a worsening of the condition during service, he or she cannot succeed in demonstrating that military service was the cause of the decline in condition. Important to this analysis, the examiners will likely count it against the veteran if medical records show any sign of improvement during service of a condition after the veteran reports it. (278)

    2. Severity of Harm Suffered

      The second inquiry deals with the magnitude of the harm suffered. Here, it is incumbent upon the veteran to demonstrate that the in-service trauma reached the underlying condition and worsened it, as opposed to causing the onset of only symptoms. (279) If the worsening of the condition is limited to "temporary or intermittent flare-ups" of the preexisting condition, such harm will not rise to the level of aggravation and cannot be compensated, despite the hardships it caused. (280) In one example, a male service member with a history of child sexual trauma including being raped, perceived that a sergeant was "grooming him for sex" and making various sexual advances on him. (281) The medical examiner found that the veteran "suffered with PTSD as a residual of his childhood trauma," rather than MST, (282) but that "even if no assault of the Veteran occurred in service, the Veteran's belief that he was being advanced upon would be enough to exacerbate the psychological symptoms resulting from the history of sexual trauma." (283) On the basis of this finding, the Board remanded the case because the examiner failed to address whether the exacerbation was temporary or permanent. (284) On the notion of flare-ups, if it has been some time (e.g., years) since the veteran's discharge from service, the veteran should provide proof of psychiatric problems between entry into civilian life and the time of the claim. Long periods without medical treatment or symptomatology, such as ten-year gaps, have similarly led many adjudicators to reject a theory of aggravation. (285)

    3. Causal Nexus Between MST and Worsening of the Underlying Condition

      Supposing the veteran can demonstrate worsening of the condition during service, and can further demonstrate that this impairment affected the underlying condition, the veteran must thirdly link the aggravation to the in-service sexual stressor, which normally comes through a medical opinion that the in-service trauma was the cause of the aggravation. As a noteworthy example, a 2007 BVA opinion reveals a claimant who served as a military policewoman. (286) She described incidents of harassment based on being in an "all-male" profession. (287) While the Board found her account of a rape by her commander to be lacking credibility, it did find credible her account of another in-service incident where a Lieutenant Colonel physician had improperly placed his hand on her thigh close to her vaginal area while asking her questions about her sex life. (288) She had reported him to law enforcement and the criminal investigation revealed two other victims with similar accounts. (289) She claimed this event contributed to her PTSD diagnosis, in addition to the fact that she was repeatedly denied promotions as a result of having reported some of her sexual trauma. (290)

      The Board considered her pre-and post-enlistment history, which included numerous traumatizing events, including repeated sexual abuse prior to age eighteen. (291) The medical examiner and the Board focused on her past and concluded that "dozens of other traumas ... account for her PTSD symptomatology." (292) Although the decision mentioned the possibility of service-connection for aggravation of a condition, and despite the fact that the abuse from the physician was from an authority figure who may have resembled and resurrected prior abusive scenarios, the Board did not remotely entertain a theory of aggravation. (293) With no mention of a link between childhood trauma and in-service aggravation, the Board linked her current symptoms exclusively to an "extensive history of pre-service ... traumatic experiences, all basically having to do with sexual abuse and rape." (294)

      In yet another case, a veteran who lived in service as a man was undergoing a transgender operation at the time of the VA claim of PTSD. (295) Her military duties in the Air Force included still photography of concededly "gruesome" scenes. (296) However, the most traumatizing scene of all involved a physically abused toddler. (297) To the veteran, exposure to the aftermath of the child abuse during crime scene documentation "reminded her of when she was abused as a child," causing severe distress and ongoing nightmares. (298) This was contrasted with a pre-service history of sexual trauma. (299) On consideration of these past events, the medical examiner found "PTSD in her youth ... possibly aggravated by service." (300) However, the Board, while "conceding]" to the veteran's exposure to "sometimes gruesome and repulsive" scenes during service, (301) concluded:

      The examiner opined, unequivocally, that the veteran's PTSD was related directly to her childhood abuse. While the examiner also indicated that her PTSD was "possibly aggravated" by service, the Board finds that the additional qualified assessment is speculative at best, and does not provide a basis to establish service-connection. (302) As in the prior case, what was missing was a specific theory of aggravation, and a link between the in-service trauma and childhood trauma.

      The rationales in these decisions are similar to ones in civil cases. The refusal to presume an aggravating relationship with sexual trauma is best reflected in the South Dakota Supreme Court's Shippen v. Parrot opinion, where the plaintiff had been sexually molested for a nineyear period. (303) The abuse survivor had the benefit of therapy and treatment. (304) However, at the age of twenty-three, when many of his symptoms had subsided, the abuser again entered his life and performed a number of non-consensual sexual acts, over the struggles and protests of the victim. (305) In court, the plaintiff claimed that the two subsequent events in his adulthood had negated the mental health progress he made, ultimately resulting in his moving out of an apartment to the streets, becoming scared and confused, and suffering panic attacks. (306) Because the medical examiners "merely described [the plaintiff's] mental problems" without discussing how they were linked to aggravation of the child abuse and did not originate from the child abuse alone, the court refused to permit damages for the subsequent aggravating events: "There is no evidence of the necessary predicate that the [later two] assaults aggravated a preexisting condition and were a substantial factor in bringing about [his] future harm." (307) In the VA claims process as well, claimants must heed the warning to clearly articulate theories of aggravation.

      Ultimately, because MST "itself is not a disability for which service-connection can be granted under the VA's current benefits system," when a medical examiner states that in-service sexual trauma more likely than not aggravated a veteran's mental condition, this will be insufficient as a causal nexus, unless it further demonstrates precisely how the etiology of the veteran's condition is linked to the in-service trauma. (308)

    4. Apportionment of Damages Between the Pre-existing Condition and the New Traumatic Injury

      The fourth inquiry requires apportionment of the harms between the nonserviceconnected condition and the in-service aggravation. Prior to 2006, this meant that the medical examiner had to conclude that the in-service stressor was at least more likely than not responsible for the aggravation. Problematically, mental health professionals are trained to assess causation in a very conservative manner in a non-forensic setting. This usually means that they will discuss probabilities with...

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