Military Sexual Trauma: A Current Analysis of Disability Claims Adjudication Under Veterans Benefits Law.

AuthorDrake, Angela K.

TABLE OF CONTENTS ABSTRACT 661 I. INTRODUCTION 663 II. BACKGROUND 664 A. Military Sexual Trauma Defined 664 B. Servicewomen and Military Sexual Trauma 664 C. Servicemen and Military Sexual Trauma 665 D. LGBTQ+ Servicemembers and Military 666 Sexual Trauma E. Military Locations with the Highest Risk of 667 Military Sexual Trauma III. VA's RATING PROCESS 668 A. The Presumption of Soundness 671 B. VA Clinician Training 673 1. The 2018 Directive 673 2. The Disability Examiners Training 674 Module C. Requirements under 38 C.F.R. [section] 3.304 677 D. Personal Trauma Requirements under the 680 Adjudication Manual E. The 2018 OIG Report 683 IV. ANALYSIS 685 A. The General Rating Formula Applicable 685 to Mental Health Claims B. Common Symptoms of MST and Their 686 Relationship to the Formula C. MST-Related Disabilities May Include Both 688 Mental Health and Physical Disabilities 1. Mental Health Diagnoses 690 a. PTSD Diagnosis and the Requirements 690 under DSM-5 b. Requirements for Chronic Adjustment 691 Disorder under DSM- c. Comorbidity 691 i. Major Depressive Disorder 692 ii. Obsessive Compulsive Disorder 693 d. substance use Disorder 694 2. Disabilities other than Mental Health 695 Diagnoses Arising from Military Sexual Trauma D. Special Monthly Compensation 696 VI. CONCLUSION 698 APPENDIX A 699 APPENDIX B 701 APPENDIX C 704 I. INTRODUCTION

In recent years, the Department of Veteran Affairs ("VA") improved its policies concerning Military Sexual Trauma ("MST") by leaps and bounds; however, room remains for improvement. The spread of the "Me Too" movement helped reduce the stigma surrounding sexual trauma and increased calls for accountability and support. However, the era of "don't ask, don't tell" sustained a mindset of ignorance in several aspects of the military, not just sexual orientation. (1) Many victims of MST experienced total dismissal of their trauma or were too afraid to tell their story. The repercussions of this mentality are severe: silence affects the victims both mentally and legally. (2) MST can cause a wide array of symptoms, including difficulties in maintaining relationships with others and experiencing suicidal thoughts. Legal recourse is also more difficult when the victim did not report the assault or receive contemporaneous treatment. (3)

Dealing with MST is difficult and different for every veteran but getting the disability compensation contemplated by law should not be. (4) This Article discusses the statistics surrounding MST victims, common symptomatology, current and past hurdles victims have faced, and arguments advocates should consider so that veterans receive the full extent of the compensation they deserve. This Article further analyzes whether the rating system that the VA uses to compensate veterans for MST properly takes into account the various aspects of MST symptomatology. This rating system is used for all mental health claims, from post-traumatic stress disorder ("PTSD") to schizophrenia, arising from any number of situations--from combat incidents to MST. (5) As the understanding of the impact and effects of sexual trauma changes, the manner in which cases are analyzed should be adjusted accordingly.

This Article begins with an in-depth look into the background of MST, including its definition and the statistics relating to gender and location. Then, this Article discusses the VA Ratings Schedule, with an analysis of key legal concepts underlying the veterans' benefits system including "the presumption of soundness." Proper clinician training and protocol is also discussed. This Article concludes with the identification of common MST diagnoses and a discussion of various ways to maximize VA benefits under the governing law.

  1. BACKGROUND

    1. Military Sexual Trauma Defined

      MST is defined by statute as "psychological trauma, which in the judgment of a mental health professional employed by the Department, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the veteran was serving on active duty, active duty for training, or inactive duty training." (6) While sexual assault is physical in nature, sexual harassment is "repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character." (7) Under the VA's definition of MST, combat is not a requirement for MST nor is it a requirement to qualify for disability benefits from the VA. MST is not a psychological disorder or a diagnosis that can be treated. (8) Rather, it is considered an underlying event that may result in various disabilities that need treatment. (9)

      The Annual Report on Sexual Assault in the Military released by the Department of Defense ("DOD") determined that one in three servicemembers reported being assaulted in 2018, whereas one in fourteen servicemembers reported being assaulted in 2006. (10) However, these studies only address reported assaults. It is highly likely many assaults were not reported, especially male assaults on other males. The recent increase in reporting likely correlates with public awareness from the Me Too movement, lessening stigma around sexual assaults generally.

    2. Servicewomen and Military Sexual Trauma

      In a recent Senate Armed Services Committee hearing, Senator Martha McSally revealed her own experience with sexual assault while serving in the Air Force. (11) McSally explained that she did not immediately report the assaults because she "didn't trust the system at the time." (12) She further stated that she was "horrified" about how her account was handled when she did report it years later. She said, "[L]ike many victims, I felt like the system was raping me all over again." (13) McSally's experience--like many others--underscores the reality that sexual assault does happen in the military, and many assaults go unreported.

      According to the DOD, in fiscal year 2017, 5277 servicemembers reported sexual assault, with 4,193 of the victims being female. (14) Statistically, women were victims in 80 percent of the reported sexual assaults. (15) A study conducted in 2016 by the Journal of Military Medicine interviewed fifty-two women from World War II to the present about sexual assault incidents. (16) Some of these servicewomen did report their sexual assault experiences but were accused of fabricating the assault or were even blamed for the incident. (17) Others reported they did not come forward because they had seen firsthand that the accused were not held accountable. (18) While many of these instances happened to women in service from 1979 to 1992, these reports illustrate the barriers servicewomen face when considering whether to report a sexual assault. The numbers released by the DOD and the experiences shared by service-women demonstrate a clear need for education and acknowledgment of sexual assaults and the resulting MST present within the military.

    3. Servicemen and Military Sexual Trauma

      According to the 2017 DOD study, while the majority of victims of military sexual assault were women, roughly eighteen percent of the victims were men (19) Studies indicate that there are several barriers and myths that make reporting rape difficult for men. (20) Irrespective of sexual orientation, a serviceman may not report an assault out of fear that his sexuality may be questioned by others in his unit. (21) Furthermore, the serviceman may think coming forward will cause those in his unit to consider him a traitor or a snitch. (22) Studies have also shown that men are more likely to leave an assault unreported because they often believe they can cope and are less deserving of help than a woman who has been sexually assaulted. (23)

    4. LGBTQ+ Servicemembers and Military Sexual Trauma

      Unfortunately, there is little data on the prevalence of MST among the transgender and LGBTQ+ military community. However, a study published in 2016 sought to quantify MST experienced by transgender servicemembers. (24) The researchers analyzed the number of transgender servicemembers treated at the VA from 2000 to 2013. According to the study, one in five transgender men and one in seven transgender women experienced MST. (25) The degree of MST found in transgender women was much higher than that of cisgender men. (26)

      However, the study expressly noted that this number is not a complete representation of MST experienced by this population in light of the fear to report among victims. (27) The actual amount of MST experienced by transgender servicemembers is likely much higher. Transgender servicemembers could not serve openly when this study was conducted in 2013, and they still cannot serve to this day. (28) While President Obama lifted the ban disallowing transgender servicemembers in 2016, President Trump again banned "transgender individuals with a history of gender dysphoria" from serving in the military. (29) Due to the current administration's policy, servicemembers might not report MST out of fear of reprisal or fear of a potential loss of benefits.

      Currently, the official policy of the DOD remains as follows: (1) transgender persons with a history of gender dysphoria cannot serve in the military in most circumstances; (2) those persons who "require or have undergone gender transition are disqualified" from serving; and (3) transgender persons who do not have a history of gender dysphoria and qualify to serve in the military may serve "in their biological sex." (30)

      Studies dealing with MST among LGBTQ+ servicemembers are difficult to find. A study conducted between 2012 and 2013 surveyed LGBTQ+ servicemembers asking them about both sexual orientation discrimination and MST. (31) This study recorded a high number of MST cases, with LGBTQ+ women more likely to report a sexual assault than LGBTQ+ men. (32) As mentioned above, there has been little research on these issues, and it is likely the number of LGBTQ+ servicemembers that have experienced MST is higher. Though "don't ask...

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