The VA really should establish a presumption that female service members were raped or sexually assaulted in service.
Think this is unreasonable? Here’s why its not.
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).
What is Corroboration?
Corroboration – unlike credibility – is one of those few words that means the same to real people as it does in the legal system: it means simply to confirm or give support to a particular theory, fact, assertion, etc.
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.
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. MSTs require more corroboration than any other claim I have seen in over a decade of practicing law.
When it comes to Military Sexual Trauma cases, however, we have created an anomaly. 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 woman – or a man – claims service connection of a condition due to a Military Sexual Trauma – and there is not a police or hospital report (and sometimes when there is) all of a sudden we need corroboration.
Using the metaphor above, instead of realizing that rape is the downed-power wire sitting on a car, we treat it like its 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” – 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.
How do you show this evidence?
In a MST claim, you are going to have to pound the VA – literally overwhelm them – with a variety of lay evidence.
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 – along with your C-File – and ask the doctor to write an opinion as to whether your injuries are at least as likely as not related to the condition that results from the military sexual trauma … don’t forget to ask the doctor to use these “Magic Words”
Don’t expect your claim for service connection of a condition resulting from an MST to be easy. Find other MST Survivors and build 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.
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