Claiming VA Disability for Military Sexual Trauma
Published April 7, 2022
Military Sexual Trauma (MST) 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).
According to some studies, one in four women soldiers has been subjected to unwanted sexual conduct or harassment. A significant number of men have also been subjected to these events.
Trauma affects us all, and sometimes sexual trauma can have a more dramatic effect on our lives than we want to admit. Maybe it is finally time to address it and look into whether your service-connected rape, sexual harassment, or other sexual trauma can be grounds for receipt of VA disability benefits.
The VA disability process can be complicated for veterans, especially veterans with PTSD – even more so for MST claims which are private and sensitive in nature. However, complexity should not stop you from starting the process.
This article will provide you with a better understanding of the contours of these claims and what to do if your initial claim is denied or your initial VA disability rating is lower than you believe is appropriate.
What is Military Sexual Trauma
Military sexual trauma (MST) is sexual assault or harassment that happens during military service. This trauma can trigger a wide range of long-lasting symptoms. However, it is not a “disability” in and of itself. Instead, for purposes of VA disability claims, MST is reviewed and rated in the same manner as PTSD claims.
It is not a requirement that the traumatic event was officially reported at the time of occurrence because the VA understands that it cannot penalize a veteran for lack of official reporting.
How is MST Related to PTSD?
Post-Traumatic Stress Disorder (PTSD) can be based upon all sorts of trigger traumatic events, including personal trauma. Personal trauma, in the context of a VA disability claim, is “harm perpetrated by a person who is not considered part of an enemy force.” Personal trauma can include such things as assault, battery, robbery, mugging, stalking, and harassment.
MST is a type of personal trauma but can, and often does, trigger PTSD symptoms. PTSD is a condition that is formally diagnosed by a doctor for certain symptoms that are tied to a trigger stressor event of some kind. MST refers to one type of stressor that can cause PTSD; MST isn’t its own condition.
PTSD disability claims are evaluated to see if there is a diagnosis of PTSD using specified criteria and a finding of connection to a service-connected trigger event. The causes of PTSD can be widely varied – sometimes something that happened during combat, sometimes personal assaults, or sexual assaults or harassment.
A PTSD case is categorized as an MST if the triggering stressful event was sexual in nature.
How Do You Claim VA Disability Benefits For MST?
Any VA disability claim process starts in the same way – with completing and submitting VA Form 21-526EZ. For an MST claim, you will need to also fill out VA Form 21-0781a Statement of Support of Claim for Service Connection for Post-Traumatic Stress Disorder Secondary to Personal Assault at some point in the claims process. It is not necessary to submit initially to get your claim started.
The VA will then request the necessary documentation they will need to process your claim.
It is common for PTSD symptoms to not surface until days, months, or even years after the underlying stressor trauma. The cause-and-effect situation may not be immediately apparent, even to you. As such, you may not have reported to doctors at the time what you are going through. Similarly, rape and sexual assaults are occurrences that frequently go unreported, not because they don’t impact your life, but because there is embarrassment, fear of not being believed, fear of retaliation, and many other reasons for not making a formal report at the time of occurrence.
However, the choice or practical inability to officially report an MST is no reason to give up on making a VA disability claim.
Recognizing that veterans who have suffered an in-service MST should not be penalized for not making an official report, the VA is willing to review evidence from sources other than your service records to corroborate your current account of the underlying stressor incident. The VA is, in fact, legally obligated to tell you, the veteran, that they cannot deny a claim without advising you that these other types of records can be submitted to support your MST claim.
These types of circumstantial evidence that a sexual trauma occurred are called “markers.” Markers can include things such as law enforcement reports, rape crisis center records, mental health counseling, or private physician records. Markers can also include pregnancy or SDT testing around the time when you say you were assaulted. They can also include statements from family and friends, roommates, clergy, or other people who you confided in about the underlying incident. Personal diaries may also be a form of evidence.
Some additional markers are more indirect but can be found right within your service record.
There may be records of certain behavior changes around the same time, dramatic changes in performance reviews (sometimes for the worse, sometimes unexpectedly better), request for transfer to another duty station, change in work performance, substance abuse, or episodes of depression, panic attacks, or anxiety without another identifiable cause.
The VA not only needs to consider this type of “marker” evidence in deciding on your claim, but it has a duty to assist you by advising you of the need for such evidence.
In addition to assembling evidence that the traumatic incident occurred in the first place, you will also need to have medical evidence connecting that incident, an in-service stressor, to your current symptoms. Remember that even if you are currently in treatment for PTSD, your doctor may not have documented connection to any particular event because they may only need to recognize that you have PTSD to treat you. They have not necessarily distinguished what stressor triggered the symptoms.
This may all seem complicated – and it is – but compiling your application is the first step in the process. You can get assistance from a VSO to help prepare your claim, but it is illegal for anyone to charge a veteran to assist in preparation.
After you have submitted your VA disability claim application form, there will be a lot of waiting for the VA to take the next steps in the process. If you didn’t initially submit your personal statement about what happened, the VA will reach out to you and send the forms to fill out. Sometimes the VA will schedule a C&P exam for you. A C&P exam involves a visit to a VA or VA-designated health care professional to review your medical records and evaluate you for purposes of the claim. It is sometimes helpful to sit down and write out what happened to you and bring that along to the C&P exam. That way you don’t have to try to remember all of it in the potentially stressful environment of the exam. Failure to appear may be grounds to simply deny your claim, so don’t miss the appointment.
Some months after that you will receive both a letter advising you of the VA’s decision on your claim, along with a more detailed document explaining their reasons. Even if your claim is denied, these documents may be very helpful in understanding what information you may have missed in the application or things that the VA rater reviewing your file didn’t see.
You may have issues with the VA’s initial decision, even if it is granted. You may believe that the disability rating is too low or that the effective date is improper. All of these facets of the initial decision are subject to appeal.
If your claim is not initially successful, there are options available for appeal, including the possibility of overturning a denial or increasing your VA disability rating. In the appeal process you can, and should, hire an experienced VA disability claim appeal lawyer to help you. Most of them work on a contingency fee basis – they don’t get paid until and unless you do – so don’t delay in checking out your options and choosing legal representation who can meticulously and caringly handle your appeal.
What Should You Do If Your MST Claim is Denied?
First, understand that approximately 70% of all VA disability claims are initially denied, but that is no reason to despair or give up. With a VA disability attorney handling your case, you statistically have a better than 75% chance of at least a partially more favorable outcome.
Additionally, if your claim was denied before August 2018, the VA encourages you to seek re-evaluation. Since that time, the VA has started providing special training to staff who work on MST-related claims. You can request a re-evaluation by contacting an MST Outreach Coordinator at your local VA Regional Office or online.
Next, mark your calendar with the one-year deadline for filing an appeal of the decision. Then go and look for a good VA disability claims appeal attorney.
How Can You Appeal The Denial?
You have one year from the date of your initial decision letter to file an appeal. Under the current VA appeals system, there are three pathways of appeal – Higher Level Review, Supplemental Claim, or a Board Hearing. Each of these pathways has pros and cons and a VA disability attorney can evaluate the specifics of your case, including the reasons the VA denied or underrated you. They’ll prepare and execute a plan for getting a better outcome on appeal.
Sometimes all of the necessary information was in your initial application, but the VA rater just didn’t put all of the pieces together or just overlooked something. A Higher Level Review may be the way to have a more experienced rater review your entire claim file and correct a mistake made originally.
There are lots of times, however, that the claim denial indicated that there was some missing information. There was some gap that kept them from either making a determination that you suffer from PTSD with an MST trigger event or that kept them from determining a service connection between your current condition and your military service. In those cases, a Supplemental Claim may be the best choice for you. This process allows you to obtain and submit additional information to your claim file. Sometimes this is a doctor’s diagnosis of PTSD, sometimes it is documentation that is considered a “marker” for purposes of establishing an MST claim.
There are other times where your situation can best be explained to the VA through an actual live hearing, whether virtual or in-person. This might be a situation for asking for a Board Hearing where an actual hearing officer will listen to you explain your current condition and the underlying triggering event.
If one avenue of appeal still does not provide you with the VA disability rating or claim acceptance that you think is appropriate, additional appeals can be sought.
Should You Consult a VA Disability Claim Attorney?
You absolutely should consult a VA disability claim appeal attorney if your MST claim has been denied or your VA disability rating is below what you think it should be. Proving the existence of a service-connected military sexual trauma case is a detailed and finessed process, especially when no formal report was filed at the time.
Your case is the only MST/PTSD disability claim you have ever submitted, so your experience is limited. Whatever your PTSD symptoms are, none of them are conducive to learning and perfecting a complicated VA disability claim process that you’ve never done before and should never have to do again. This means it’s time to bring in a professional, a law firm that has handled thousands of other veteran claims and is willing and able to handle MST claims.
The legal specialty of VA disability claim appeals is a small niche of the legal profession. There are no formal “certified specialization” programs, so you will need to do a little more in-depth search for an attorney that is the right fit for you.
It is even a smaller subset of VA disability claim appeals law firms that handle MST claims. They are complicated and can be more time-intensive and emotionally charged than other cases. Some attorneys would prefer to not handle those cases. When you are looking for an attorney, be upfront about the fact that you want a firm that wants to take MST cases.
Veterans Law Group has represented thousands of veterans in VA disability claims appeals and has special expertise in handling MST claims. Are you ready to have Veterans Law Group review your MST case and find out if they can help you?