When rape isn't like combat: the disparity between benefits for post-traumatic stress disorder for combat veterans and benefits for victims of military sexual assault.

• Author: Kappelman, Ben
• Position: The Massachusetts Constitution of 1780

"It's very disconcerting to have somebody who is supposed to save your life, who has your back, turn on you and do something like that.... You don't want to believe it's real. You don't want to have to deal with it. The family doesn't want to deal with it. Society doesn't want to deal with it." (1)

1. INTRODUCTION

   In the late 1990s, a disabled American veteran sought compensation. (2) His disability was physical, but his injury was not suffered on the battlefield. (3) His claim was denied. (4) The veteran, Frank L. Gallegos Jr., had been diagnosed with post-traumatic stress disorder (PTSD) caused by military sexual assault (MSA). (5) Gallegos' medical doctor corroborated his account and wrote, "[t]he symptoms [Gallegos] gives are quite consistent with a highly traumatized experience of sexual rape to a man." (6) Nevertheless, the United States Court of Appeals for Veterans Claims upheld the decision that Gallegos had not established a sufficient connection between his in-service rape and his PTSD. (7) Absent that connection, Gallegos could not receive benefits in the form of psychological care and a disability pension from the United States Department of Veterans Affairs (VA). (8)

   The VA serves America's veterans and their families "in ensuring that they receive the care, support, and recognition they have earned in service to this nation." (9) Navigating the VA application process to obtain such care, support, and recognition presents unique challenges for veterans with mental illness, particularly those with PTSD. (10) One cause of PTSD is sexual assault, which is surprisingly pervasive in the United States armed forces. (11) In (2008), 3,018 sexual assaults involving United States armed forces service members were officially reported to unit commanders. (12)

   When veterans develop PTSD caused by a sexual assault as a result of their military service, they are entitled to disability compensation. (13) The current regulatory framework imposes a higher evidentiary burden on those veterans seeking compensation for PTSD because of sexual assault than on those seeking compensation for PTSD caused by exposure to combat. (14) This higher burden, one that generally requires corroboration from outside sources, instead of the veteran's lay testimony alone, prevents victims with PTSD claims from receiving compensation. (15)

   This Note begins by describing the process for seeking benefits as a disabled veteran in the United States. (16) It next examines how PTSD due to sexual assault is subject to a higher level of scrutiny in the benefit application process. (17) The Note then considers the prevalence of MSA in the armed forces and the veracity of victims' claims. (18) It goes on to describe the clinical connection between MSA and PTSD. (19) Lastly, it catalogs the obstacles to successful disability claims that the veterans disability application process presents. (20)

   This Note then analyzes the application process and suggests areas for improvement. (21) Continued vigilance is necessary to abandon the outmoded stereotypes of sexual assault and this Note commends the Department of Defense (DOD) for taking important steps to that end. (22) Unifying the veterans' disability application process would provide fair and equal treatment of PTSD claims regardless of cause. (23) The fact-finding process within the Board of Veterans' Appeals (BVA) should be reformed to ensure the Board does not delegate its fact-finding responsibilities to the medical professionals it turns to for evidence. (24) Finally, the contemporaneous proof requirement bars PTSD claims with an otherwise sound clinical basis--a profile that fits many claims based on MSA--and federal regulations should acknowledge this fact. (25)

2. HISTORY

   1. Seeking Compensation as a Disabled Veteran in America

      As part of its mission, the VA provides compensation to any veteran who is at least 10% disabled as a result of military service. (26) Statutes entitle veterans of the United States armed forces to compensation for disabilities or diseases acquired during wartime or peacetime service. (27) A claim for veterans' benefits must satisfy five elements: status as a veteran; the existence of a disability; a connection between the veteran's military service and the disability; the degree of disability, which is expressed as a percentage representing decrease in work capacity; and the effective date of the disability. (28) This Note primarily addresses the second, third, and fourth elements. (29) When veterans' disabilities do not become apparent until after their service has ended, they may still demonstrate that they acquired the disability during service by evidence, or by discovery of the disability within a "presumption period." (30)

      The presumption period is a variable length of time after a veteran's service has officially ended. (31) If a disability is discovered during that time, the VA will treat the disability as if it had been discovered during service for purposes of the service-connection element. (32) This is important because it affects the burden on each party in a dispute over benefits. (33) When the physical examination of a veteran before entry into military service did not find any disability, and a disability is subsequently discovered during military service or the presumption period, the disability is presumed to be service-connected. (34) To rebut that presumption, the VA must "show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation." (35)

      The fourth element, the degree of disability, is determined by reference to standard criteria and is reflected as a percentage. (36) The amount of compensation for a veteran is then determined from a table based on disability percentage and number of dependents. (37) The amount is generally increased annually to account for changes in cost of living. (38) Each veteran's disability percentage and family pattern will vary, but some examples illustrate the possible annual pension amount: a single veteran with 30% disability will receive $4,512, a veteran with 50% disability with a spouse and a child will receive $10,788, and a veteran with 100% disability with that family pattern will receive $35,184. (39) By way of comparison, the 2009 Federal Poverty Guideline level for a family of three was $18,310. (40) Thus, the income of a three-person family, solely supported by a 100%-disabled veteran, is just under 200% of poverty. (41) An applicant for veterans' disability benefits is seeking this income as a disability pension. (42)

      Veterans face a complex process for challenging adverse decisions. (43) The BVA is the entity within the VA charged with hearing appeals from preliminary decisions concerning awards of benefits. (44) The vast majority of the BVA's decisions concern claims for disability compensation or survivor benefits. (45) BVA decisions may be appealed to the Court of Appeals for Veterans Claims. (46) The Court of Appeals for Veterans Claims' decisions may then be appealed to the Federal Circuit. (47) The Federal Circuit is the first Article III court in this chain. (48)

      The Court of Appeals for the Federal Circuit recently held that an applicant for veterans' disability benefits possesses a constitutionally protected property interest in those benefits, requiring procedural due process during the application process. (49) In considering the claim of a veteran who injured his back while serving in the military, the court chronicled the veteran's attempts to obtain a disability benefit beginning in 1974. (50) After repeated denials, the veteran eventually discovered that the officials who rejected his claim erroneously relied on a medical record that had been improperly altered. (51) After the BVA refused to reconsider its decision in light of the tainted medical record, the veteran unsuccessfully appealed to the U.S. Court of Appeals for Veterans Claims. (52) The Federal Circuit reversed, holding that a veteran's entitlement to disability benefits is a property interest protected by the Due Process Clause of the Fifth Amendment. (53) The court applied several circuit court decisions holding that when government benefits are nondiscretionary, an applicant for those benefits, as well as a recipient, possesses a property interest protected by due process. (54) The court then held that the veteran's right to a fair hearing was tainted by consideration of the erroneous medical record. (55) This decision has the potential to alter the veterans' disability framework by providing new grounds to challenge decisions of the BVA. (56)

   2. Post-Traumatic Stress Disorder: Heightened Scrutiny of an Invisible Disability

      The American Psychiatric Association recognizes PTSD in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). (57) PTSD is a clinical diagnosis resulting from exposure to certain types of stressful incidents that are known as stressors, which cause specific diagnostic criteria. (58) The symptoms include, but are not limited to, intrusive recollections of the event, avoidant or numbing behavior, and hyper-arousal, all lasting more than one month. (59)

      One study of women who were sexually assaulted found they exhibited a statistically significant 18.9% increase in PTSD symptoms. (60) A 1998 study of female Gulf War veterans found 7.3% reported experiencing sexual assault, 33.1% reported physical sexual harassment, and 66.2% reported verbal sexual harassment, while 30.2% reported no sexual harassment. (61) In 1992, Congress authorized the VA to provide counseling services to female veterans to help them overcome psychological trauma caused by sexual assault or harassment. (62) Two years later, Congress extended the same benefit to male veterans. (63) Nevertheless, female service members frequently do not report these crimes, which means they often have limited documentary evidence to substantiate a claim for benefits at a...