Select Page

proving military sexual trauma claims

The VA makes veterans corroborate Military Sexual Trauma (MST) if they claim PTSD related to a sexual assault or rape in service. For this reason, proving Military Sexual Trauma claims can be very difficult most of the time. This is one of the reasons I think the VA should establish a presumption that female service members were raped or sexually assaulted in service.

Think that is unreasonable?  Here’s why it’s not unreasonable to put the burden on MST victims for proving Military Sexual Trauma claims.

The VA presumes that certain medical conditions are caused by Agent Orange exposure – the presumption is based on science showing that the rate of diagnosis of certain conditions is higher in Vietnam Veterans exposed to Agent Orange than in the regular population.

Given statistics that somewhere near 20-40% of all women are raped in military, that 26,000 rapes and sexual assaults occurred in the military in 2012 alone, and that 90% of military rapes are not reported, it seems that science shows that rape is – currently – a fact of life for women in the military.

The institutionalized rape of our soldiers – men and women alike – can stop only after Congress takes away the power of military commanders to decide important legal issues like the validity of rape allegations of their subordinates.

Until the VA decides to institute a “presumption of rape”, women who were raped in the military still have to corroborate their allegations of rape (unless they were in combat, and arguably they don’t have to produce corroborating evidence).

Proving Military Sexual Trauma using “Corroboration” Markers.

Corroboration – unlike credibility –  is what is called a “legal term of art”: it means something very specific in a legal system.

To corroborate a fact in the law is to confirm or give support to that particular fact or factual assertion. Usually, corroboration implies that there is something about the asserted fact that is in question.

In some cases, the fact could cut against common wisdom.

For example, if I tell you that the earth is round, you probably would not need corroboration of that fact. It’s pretty widely accepted.

However, if I were to tell you that taking salt pills cures baldness (they don’t), you are going to want to see some corroborating evidence because that “fact” is not inherently believable.

Additionally, the more inherently believable a fact or occurrence is, the less corroboration you need.

So, for example, if I call the police and tell them I just saw Bigfoot in my backyard, they are going to want to hear from my wife to see if she can corroborate my story.

But if I call the police to tell them there is a power line down on top of a car on my neighborhood street, they are not going to need anyone to corroborate that. They can see it themselves.

If veterans law was consistent and logical, proving a military sexual trauma would not be difficult.

When a veteran reports a Military Sexual Trauma as part of a claim for service connection, you would think it would be inherently believable given the high incidence rate of sexual assaults in the military.

But you would be wrong. Proving Military Sexual Trauma claims and appeals requires more corroboration than any other VA disability claim I have seen in nearly 2 decades of practicing law.

We know that 20-40% of all women have been raped or assaulted in the military.  We also know that 90% of military rapes and assaults are not reported.

However, when a veteran – male or female or non-binary – seeks service connection of a condition due to a Military Sexual Trauma the burden is on the veteran to corroborate that the military sexual assault occurred.

Using my earlier metaphor, instead of realizing that military sexual trauma is the downed-power wire sitting on a car, we treat it like it is Bigfoot in the backyard.

How to Corroborate Military Sexual Trauma in a VA Claim.

To corroborate rape in the military service – or what the VA gingerly refers to as  “Military Sexual Trauma” or “MST”- a Veteran may show evidence of one of the following “markers”:

1) Records from Law Enforcement Authorities

2) Rape Crisis Centers

3) Mental Health Counseling Centers, Hospitals or Physicians

4) Pregnancy tests or tests for sexually transmitted diseases

5) Statements from family members, roommates, fellow service-members, or clergy

6) Evidence of behavior changes, including:

a) a request for a transfer to another military duty assignment;

b) deterioration in work performance;

c) substance abuse;

d) episodes of depression,

e) panic attacks, or anxiety without an identifiable cause;

f) unexplained economic or social behavior changes.

Notice the assumptions underlying all of those markers.

The VA assumes that if a veteran is raped or sexually assaulted, they are going to do certain things: report it to law enforcement, become pregnant, seek mental health treatment, etc. In the VA’s mind, proving military sexual trauma is a “cinch” if you can establish one of those MST markers.

The problem is, rape is such a part of the military culture that most veterans that experience an MST engage in a behavior that has no marker: they keep their head down, their mouth shut, and muscle through their enlistment term of military career. In reality, proving a Military Sexual Trauma occurred can be a Herculean task.

And that is before we talk about re-triggering the veteran who has to repeatedly relive the trauma.

We worked with one veteran who was raped in service in the 1960s. She finished out her enlistment period, got an honorable discharge, went to school, started a career, was married, raised several kids and grandkids, and when her husband died and all the kids left home, the memories of what had happened rushed back into her life like a tidal wave.

No markers. No corroborating evidence. But it happened nonetheless.

Let’s say you do have evidence to prove an MST occurred.  How do you show this evidence to the VA?

In a MST claim, you are going to have to pound the VA – literally overwhelm them – with a variety of lay evidence. I recommend that you take a look at my “5 Star Evidence” training course – available free to any subscriber to the Veterans Law Blog®.

Don’t send in a single 21-4138 describing the incident.  Send in as many lay statements of friends and family who observe the symptomatology and limitations that you face as you can.

Get statements from fellow soldiers that observed a decline in your performance – if you can get an officer or two to pitch in a statement, that always helps.

Here’s an example from one of our cases: we had an Air Force colonel talk about the decrease in performance – as evidenced in the performance appraisals he signed – for one of his units best soldiers after a particular period of time.

That period of time was at the exact point in time that the soldier claimed to be violently raped and sodomized in his Air Force barracks.

Take all that lay evidence to a doctor and be sure to get it into your  C-File.

The next step  will be to prove the nexus between your mental health diagnosis and the MST event – sometimes that diagnosis is PTSD, and other times it is another medical condition like an anxiety disorder, or major depressive disorder.

Don’t expect your claim for service connection of a condition resulting from an MST to be easy.  Find other MST Survivors and join a support network – the VA is going to attack your credibility at some point.

They are going to jump through ridiculous logical hoops to deny your claim.

If you end up getting your appeal all the way to the BVA, and after a BVA hearing the BVA judge denies your Military Sexual Trauma appeal, please consider reaching out to a lawyer who has experience dealing with appeals to the Court of Appeals for Veterans Claims.

NOTE: These markers appear as part of the proof of a MST Stressor event for a PTSD diagnosis under 38 C.F.R. 3.304(f). A common problem is that the VA and BVA require veterans to prove these markers for mental health conditions other than PTSD.  I believe that this is an improper application of the law.

My law firm is interested in looking for cases where the BVA denies a Military Sexual Trauma claim for a mental health condition OTHER THAN PTSD, but does so because the Veteran failed to corroborate the in-service MST with the PTSD markers. If that sounds like your case, please reach out to a lawyer with experience at the Court of Appeals for Veterans Claims (CAVC) 

11 Comments

  1. Derrial Agee

    I was coerced to have sex with an E/7 in order to received my E/5 promotion. I had done what he had ordered me to do, such as School, Correspondence Courses twice. Signed up for Leadership School and Completed all courses. Compete with the Division Food Service Competition, Cook of the Month, Cook of the Quarter, came in First Place in both competitions. He told me I had to do this before I go up to the board. After I had done all I could do he told me If I wanted my E/5 I have to sleep with him. He had approached me with this more than once. I didn’t felt like I should lower my standard to become his bed warmer. So I put in for a transfer as soon as a slot became available. I couldn’t work with seeing his face every day. It was very uneasy for me to focus, and to performed my duties with great efforts.

    Reply
  2. Tina Lopez

    During my 1st c&p appt with a psych doctor in 2012, he stated that all of the markers were present in my records, yet denied my ptsd/ military sexual trauma claim. I was awarded 10% for back. I had a BVA hearing in March 2020 with an attorney who has very little experience with VA disability, however she helped me win my SSD case at the Federal level, so I felt a degree of loyalty. A few issues were denied, but most were remanded. I’m sure I’ll receive a 10-20% increase. I’m hoping to receive a favorable decision for ptsd. I explained to the female judge at my hearing that had they reviewed my records more diligently,, they would have discovered that I had a pregnancy test administered at sick call immediately after the incident and was also dx’d with a sexually transmitted disease. I was seen for depression too. I spiraled out of control. Went from being selected for Marine of the month 2x’s, selected to attend NCO school, all promotions meritorious to Office hours (reprimanded). It was reported, however, the Colonel responded by asking me if I wanted to destroy this man’s career. I was bullied by his fellow officers. They slapped his hand, followed by a transfer to Okinawa. How could a medical doctor state that all of the markers were present yet my claim was denied. The BVA law judge stated at the beginning of my hearing that she’s very veteran friendly. I seem to do better with female physicians and Judges. If my appeal is denied, I will contact you to discuss another appeal. I really like my attorney, but again, I’m better off with an attorney who has experience with VA disability!

    Reply
  3. Chris

    It is tragic it occurs, but when will the services as well as the VA acknowledge it happens to males as well as females. Being a victim and a male doesn’t mean it is any less traumatic, and if the VA were to declare it is a presumptive for females, and not include males, it will further traumatise males.

    Reply
  4. CELucas

    Hi Chris,
    I have PTSD from MST while on active duty on my two-week annual deployment to Germany as part of my national guard unit. I was raped there and have never asked for VA help until recently. And it has re-traumatized me and you articulate the issue perfectly in your article. I am a good candidate for a case getting denied —once I actually get it filed— because of wrongful diagnosis of bi-polar disorder. But based on what you articulate in your article, what kind of victim with PTSD symptoms overcome all of those hurdles and re-victimization anyway? The truth is that a real PTSD sufferer (like me) wouldn’t even apply because they could never relive that original trauma nor could they endure new trauma at the hands of the men at the VA over money? There isn’t enough money in the world to get me to go through that again, at least not without the help of a good lawyer. I can’t even do it and I am a lawyer! Suffering from a new rape 20 years later triggered my PTSD from my prior rapes. But it was trendy then for physicians to diagnose bipolar disorder because of a fundamental ignorance of MST for female Veterans. I worked every summer active duty and served well-above my 90 days of consecutive service but they lost all my records, my medical records vanished as did most of my points history and personnel file —someone said it was a fire in San Luis Obispo. Who knows anymore. I regret that I ever served in the military and had to endure all of that sexual harassment and unfair treatment and getting raped on active duty was the most significant trauma of my entire life. I hate the VA for questioning anyone on these issues. We are honorable women who served our country honorably. It would defy common sense to reveal your personal rape experience and the PTSD that comes with it for a paltry disability pension. I didn’t even know such a pension existed until a few years ago! I am a hard worker, not trying to get VA benefits they should be giving me outright without making me or my fellow servicewomen suffer more by reliving the trauma and re-victimizing them in the process of asking for help. That’s has become my life’s experience over the last 8 years. Serving my country for over 6 years was a waste and that Commendation Medal I recurved was a joke because it was from a military establishment that would cause me direct harm when I reach my hand out for help. Men get all the breaks and do all the rapes. Thank you so much VA and those active duty AF men that night in Ramstine AB, Germany all those years ago. What a boondoggle for them.

    Reply
  5. Cynthia Florez

    my comment is more of a ?. My VSO was out sick the last 2days of my 1yr. initial claim deadline. I was frantic at the office when he was not there. They called him, he promised to call me at home. He did call me at home and told me it is ‘no big deal, not a problem he would just get an extension.” Next visit he said he could “always ask” but wasn’t sure of outcome because it NEVER happened before. Now when I ask he states extensions are not for claims but student and va loans?
    Has anyone ever experienced something similar?

    Reply
  6. jen

    You know what happened to you. It is called rape and just so you know there is no statute of limitations on rape in the military while on active duty. I filed and unrestricted report and filed criminal charges against the 3fellow soldiers who gang raped and sodomized Me , took my virginity and knocked me up. So on my first claim put in I did get 100% TDIU disability. I am going to file for increase on my disability which was 75 % PTSD and 10% right knee. They didn’t even look at the other complaints I wrote down as well.

    Reply
  7. Sharon Echols

    I ordered your ebook with the understanding that updates were free, why is this not the case? Where are my free updates?

    Reply
    • Chris Attig

      Sharon, you are right – we do send out FREE updates anytime that we release an update to a Guidebook.

      I looked into your purchases, and see that you have the most recent updates to both Guidebooks you purchased.

      Chris

      Reply
  8. Mari

    Wow, the last sentences really jumped out at me, so to speak. That is exactly how my claim went…”VA is going to attack your credibility at some point. They are going to jump through ridiculous logical hoops to deny your claim.” Actually, some of the stuff they came out with was absolutely ridiculous and did not even fit in/with my claim, as if it wasn’t my claim they were reading. However, after many years, my claim was approved and rated. Recently, I received my notice from appeal and I felt that somebody finally looked at all of my evidence and agreed that, indeed, all of the elements of my claim were valid, including effective date. For some of us, it truly is as is stated in the article…”In a MST claim, you are going to have to pound the VA – literally overwhelm them – with a variety of lay evidence.” That is exactly how I felt and worked my claim. They would pound me with all sorts of ridiculous statements; I would pound back through my rebuttals. The process can be very discouraging, but stay with it, never give up.

    Reply
    • Chris Attig

      Mari, that is the secret – if you believe a condition is related to military service, never give up. Easier said then done, however.

      If you ever want to tell your story on the Veterans Law Blog – even anonymously – let me know

      Chris

      Reply
    • Cynthia Florez

      How long did it take you after 1st denial?

      Reply

Submit a Comment

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

x
2
Posts Remaining