What can I do if my Military Sexual Trauma claim is denied?
Published June 17, 2022
You have options if your Military Sexual Trauma VA Disability Claim has been denied – a real opportunity to reverse that decision by filing an appeal of the decision.
Veterans have one year from the date of the denial decision letter on MST VA disability to file an appeal. This article provides you with a better idea of your appeal options within the VA disability claims process.
According to the VA, what is Military Sexual Trauma?
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).
The VA acknowledges that military sexual trauma can be present for both men and women. It can range from forcible sexual assault to other types of non-consensual sexual touching (including when the soldier was intoxicated or asleep), sexual coercion (offers of favorable treatment in exchange for sexual activity, threats of unfavorable treatment if sexual advances are not received) and other activities. The perpetrator can be military or civilian.
Making a Military Sexual Trauma Claim
MST is not an actual “disability.” There is no “MST Compensation” per se from the Department of Defense or the VA. MST can, however, be the traumatic trigger for PTSD. (There are other physical and psychological conditions that MST can cause, but PTSD is one of the most common). The most common MST-related VA disability claim is for PTSD. Think of the MST claim process as actually a PTSD disability claim process.
To file your initial MST-related PTSD claim, you cannot hire an attorney – federal law prohibits anyone charging a veteran to assist in filing a VA disability claim. However, there are VSOs and other no-cost resources for veterans in preparing those applications.
VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) is the general disability claim application. MST/PTSD claims require an additional VA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault).
You will also need to provide evidence that includes your service records, medical records, and other records that both document that you suffer from PTSD and that a military sexual trauma-related event triggered it. If you don’t have this evidence, the VA is required to assist you in obtaining them, specifically your service records and VAMC medical records. Please note that you don’t have to already have a diagnosis of PTSD before filing a claim.
Proving MST to the VA may seem like a daunting task, especially if you did not make any formal report of your MST at or around it occurred. Don’t despair. It is still possible to prove an MST to the VA without a formal contemporaneous report of the incident.
Is it likely that my Military Sexual Trauma Claim will be denied?
Not as likely as it used to be. In 2021, the VA reported that grant rates for MST/PTSD claims had increased 22 percentage points since 2015. In 2021, the grant rate for MST-related conditions was 72%, up from 68% in 2020 and 50% in 2015. In fact, the VA is currently inviting MST victims to resubmit claims denied before 2018.
Each claim is different, and proof of Military Sexual Trauma to the VA will often have very different collections of evidence. However, the VA is finally taking MST-related claims seriously. They are now providing MST-specific training and taking other steps to ensure that veterans suffering PTSD or other conditions resulting from MST will get fair consideration of their VA disability claims.
What can I do if my Military Sexual Trauma claim is denied?
If your MST claim is initially denied, there is no need to give up. You have one year from the date of the decision to file an appeal. Fully explore your options to get the VA to reconsider and grant your claim. Now may also be the time to consult with an experienced VA disability claim appeal attorney to help you, especially with a law firm specializing in MST claims.
VA disability claim examiners look at original claims to determine:
- Whether you have a disability at all – remember that MST is not a disability itself. It is just the triggering event. The disability will be PTSD or some related condition)
- Whether the disability is service-connected
- What the extent of disability is and its starting date.
Try to understand why the VA claim was denied – what was missing? The Notification Letter provides evidence supporting your claim and indicates what was missing that caused them to deny the claim. It may be fixable.
For example, the VA examiner may have agreed that you were sexually assaulted while on duty, but you don’t have a diagnosis of any disability relating to the assault. 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 military sexual trauma event and the VA sees no nexus. The lack of this link would also result in claim denial.
MST-related claims are sometimes more nuanced than other disability claims, especially if there was no formal complaint at the time it happened and no medical or psychological treatment until much later.
The VA does understand these nuances of an MST-related claim. Over time, they have begun to increase their skill in fairly evaluating this type of claims by looking for less direct “markers” that MST occurred. They will look at 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.
There are currently three appeals (sometimes called “decision review”) pathways depending on what you want to have reviewed: Supplemental Claim, Higher-Level Review, or Board Appeal.
A Supplemental Claim appeal allows you to add new evidence that wasn’t part of your initial claim file.
A Higher-Level Review appeal asks a more experienced decision-maker to review the file again.
A Board Appeal allows you to request a live (videoconference or in-person) hearing with a judge at the Board of Veterans’ Appeals.
Should I contact an attorney to help with my Military Sexual Trauma Claim appeal?
Yes, you should contact an attorney to help with your MST claim appeal. Although you are allowed to file and process an appeal yourself, you should 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. That experience will allow them to “line up the ducks in a row” to make it easy for the VA to say “yes” to your appeal.
VA disability attorneys usually work on a contingent basis which means you don’t have to come up with money up front; they don’t get paid unless and until you have a successful appeal outcome.
What is the appeal process like for a Military Sexual Trauma claim? What do I have to do to prove a MST claim?
Whether for MST claims or other claims, VA claim appeals all follow the same steps. A VA disability attorney can help you make the best choice(s) for your particular case.
- 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). Click here for a more detailed explanation of these options.
- Decision – The VA will process your appeal according to your selected type, including opportunities to provide additional evidence or have a hearing, if requested. After those processes occur, the VA will issue their decision on appeal.
- Possible additional review – If you are unhappy with the outcome of the appeal decision, there are additional appeals/reviews that can be done.
Would you like to have experienced VA disability appeal attorneys review your MST claim denial now? Veterans Law Group exclusively represents veterans on VA disability claim appeals and specializes in MST and PTSD cases. Contact us now for a free evaluation of your case, or bookmark this page so you can contact us later when you are ready.