Appealing a VA Claim Denial for Military Sexual Trauma
Your military sexual trauma VA disability claim was denied – what’s next?
You have one year from the date of the denial decision letter to file an appeal of that decision. Proving your Military Sexual Trauma (MST) claim to the VA sometimes is a difficult process. With a better understanding of the appeal process, especially specific to proving a military sexual trauma to the VA, you will learn that it is possible to successfully make your case.
What is Military Sexual Trauma – VA Definition
As you may already know, Military Sexual Trauma is defined as “psychological trauma, which … 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.” 38 U.S.C. §. 1720D(a)(1).
MST is not, however, an actual “disability.” However, if you have undergone that kind of trauma you know that it can cause a wide-range of long lasting symptoms. It’s not uncommon for an MST event to later result in PTSD symptoms. That’s the most frequent basis for an MST-related VA disability claim.
What steps should I take if my VA claim for MST is denied?
If your MST-related disability claim was denied, here are the steps you need to take to file an appeal.
First, be aware of the timeline. Appealing a MST disability claim must be done within one year of your Notification Letter and you have a number of things to do before then. Get started now so everything is ready in time, including looking for an experienced VA disability claim appeal attorney to help you.
In order to successfully appeal an MST-related VA disability claim denial, it is important to understand why the claim was denied and then see what can be done to fix that. VA disability claim examiners look at original claims to determine (1) whether you have a disability at all (remember that MST is not a disability itself, it is just the triggering event; the disability must be something else such as PTSD); (2) whether the disability is service-connected; and if those are met (3) what the extent of disability is and its starting date.
Although the Notification Letter may be a bit confusing, if you read through it a few times, you should be able to understand what things you successfully proved to the VA and where there were holes in your claim.
For example, they may agree that you had an MST event occur, but there’s nothing in the medical records with a diagnosis of any disability relating to that. No disability finding will lead to claim denial. Another example might be that you have been diagnosed with PTSD, but no doctor has ever linked that to an MST – perhaps you had other traumatic, non-military events in your life since the MST and the VA sees no connection between the two. No nexus finding means a claim denial.
Understand that MST-related claims are sometimes more nuanced than other disability claims. Frequently there was no formal complaint of MST at the time it happened and no medical or psychological treatment until much later in time.
However, the VA understands these elements of MST claims. Over time, they have begun to increase their skill in fairly evaluating this type of claim by looking for less direct “markers” that MST occurred from evidence outside of your service record or evidence within your service record that supports the conclusion that something traumatic happened to you at a certain point in time of your service. Look here for a more detailed discussion of “markers” in MST cases.
Understanding where there was a breakdown between the disability claim you tried to convey to the VA and them understanding it is key to a successful appeal. It will help you understand whether you need to supply additional evidence to the VA. Perhaps, you’ll just point more experienced VA decision-makers to items of evidence already in your file that they overlooked. Sometimes you just need to talk to a real judge in a hearing to effectively explain what happened to you and how it affects you now.
This analysis will help you determine what type of appeal you should pursue. There are currently three appeals (sometimes called “decision review”) types depending on what you want to have reviewed: Supplemental Claim, Higher-Level Review, or Board Appeal.
A Supplemental Claim appeal may be an appropriate choice if you have new evidence that wasn’t part of your initial claim file.
A Higher-Level Review appeal may be an appropriate choice if you just want a more experienced decision-maker to review the file again.
A Board Appeal may be an appropriate choice if you want a live (videoconference or in-person) hearing with a judge at the Board of Veterans’ Appeals.
Although you can take these steps yourself, you owe it to yourself to explore the options for hiring an experienced VA disability claim appeals attorney. You have only prepared one MST-related disability claim appeal and they have processed hundreds or thousands of cases and can walk you through the process. These attorneys usually work on a contingent basis which means you don’t have to come up with money upfront and they don’t get paid unless or until a successful outcome for you.
What is the appeal process like for a MST claim? What do I have to do to prove a MST claim?
Once you have decided what you are going to appeal and how, VA claim appeals follow these steps. You can do these yourself or with the help of your VA disability attorney.
- Decision Review Request – Appeals are initiated with specific form applications. Different forms are used for each type of appeal. The form for a Supplemental Claim is the Decision Review Request: Supplemental Claim (VA Form 20-0995). The form for a Higher-Level Review is the Decision Review Request: Higher-Level Review (VA Form 20-0996). The form for a Board Appeal is the Decision Review Request: Board Appeal (VA Form 10182).
- Decision – The VA will process your appeal according to the type you have selected. If additional evidence is needed, there will be time for doing that. If a hearing is requested, that will be scheduled. After all of those processes take place, the VA will issue their decision on appeal. The time from filing an appeal until a decision differs depending on the type of appeal you have requested and the current workloads of the VA. A Higher-Level Review and Supplemental Claim usually take less time than a Board Review.
- Possible additional review – If you are unhappy with the outcome of the appeal decision, there are additional appeals/reviews that can be done. For example, after a Supplemental Claim decision or a Higher-Level Review, you may want to ask for a Board Review of either of those decisions. Sometimes, if you have multiple issues or types of disability, the case can end up split with certain issues going on one appeal pathway with other issues going another way.
Would you like to have experienced attorneys review your MST claim denial now? Veterans Law Group exclusively represents veterans on VA disability claim appeals and has a special interest in working on MST claims. Contact us now for a free evaluation of your case.