New Orleans VA Disability: Military Sexual Trauma

Military Sexual Trauma (“MST”) is a physical and mental condition that results from sexual assault or repeated sexual harassment that occurred while a veteran was serving in the military. As the VA explains here in this MST Factsheet from March 2016, veterans are not eligible for benefits for the sexual assault or harassment, but, depending on the severity and circumstances, veterans can be eligible for VA disability benefits for conditions that result from the MST.

New Orleans VA Disability: What is MST?

According to the Factsheet, MST is defined under US law, 38 U.S.C § 1720D, as:

Psychological trauma resulting from a physical assault of a sexual nature, battery, or a sexual assault or sexual harassment which occurred while the veteran was serving on active duty, active duty for training, or inactive duty training.”

Sexual harassment is defined as: “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”

In general, veterans with service-related disabilities — injuries or diseases contracted or aggravated in military service — are entitled to disability benefits. MST can cause or aggravate physical and mental health conditions, such as post-traumatic stress disorder, depression, anxiety or sexual arousal syndrome. VA disability benefits are available for such conditions.

New Orleans VA Disability: Some Statistics on MST?

From 2008-2013, veterans filed over 29,000 claims related to disabilities caused by MST. See discussion in Service Women’s Action Network v. VA, 815 F. 3d 1369 (Fed. Cir. 2016). from 2010-2013, 94 percent of claims related to MST were PTSD claims. In 2010, 32.3 percent of MST-based PTSD claims were granted, 44.6 percent in 2011 and 49 percent in 2013.

MST is not just for women; male veterans have also been victims of MST. According to the Veterans Health Administration, about one in 100 men (that use VA healthcare) have reported that they experienced an in-service MST occurrence.

New Orleans VA Disability: What Proof Must Be Shown to Be Eligible?

A veteran must show the following to be eligible for disability for an MST-related condition:

    • MST event must have occurred while on active duty in the military;
    • Diagnosis of a mental or physical disability such as PTSD; and
  • Mental or physical disability was caused or made worse — aggravated — by the MST.

New Orleans VA Disability: Difficulty of Proof in Proving the MST Event

Veterans applying for disability benefits related to MST face several difficulties in providing proof and evidence. As to the first element “an MST event occurred while in-service”, veterans have several problems here. First, many veterans do not report the MST event out of embarrassment or fear. Thus, there is nothing in the service member’s military record showing an MST event. Further, there is rarely any other documentation, such as a civilian police report or medical records.

In 2016, the VA made changes allowing a veteran to produce evidence of the MST event as part of the application for benefits. Essentially, the VA allowed MST to be considered as a “personal assault” which has, for many years, been subject to a less stringent standard of proof with respect to the “in-service” element. This is in relation to VA regulations § 3.304 (f)(5). Under the “personal assault” regulations, a veteran can supplement his/her service record to corroborate the MST event with two broad categories of evidence: records and behavior changes. With respect to records, here are a few examples listed in the regulations:

    • Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians;
    • Pregnancy tests or tests for sexually transmitted diseases; and
  • Statements from family members, roommates, fellow service members, or clergy.

The VA regulations recognize that under some circumstances, evidence of an MST event can be deduced from changes in the veteran’s performance of behavior. With respect to behavior changes, here are a few examples listed in the regulations:

    • Deterioration in service performance;
    • Request for a transfer to another military duty assignment;
    • Unexplained anxiety attacks;
    • Depression;
    • Substance abuse; and
  • Other unexplained economic or social behavior change.

The form to complete for supplementing traditional military-records-based evidence is VA Form 21-0781A.

New Orleans VA Disability: Difficulty of Proof, Linking the MST to Mental/Physical Condition

Veterans may also have difficulty showing the causal link between the MST event(s) and the physical and/or mental condition. That linkage must be shown by medical evidence. In general, the veteran’s service and medical records will show the mental or physical condition on which the claim for disability is based. But, since many times, the MST event — the so-called “stressor event” — is not known, the medical records do no show the linkage between the MST and the condition. This highlights the importance of the VA claim exam. This is a separate, independent medical examination performed by a VA doctor appointed by the VA as part of your disability application. The purpose of the VA exam is to establish the (i) nature/severity of your claimed disability and (ii) the service connection.

After the VA exam, the VA doctor will prepare a report that states the exam findings, results of tests and the doctor’s opinion as to your condition and its cause or origin of a disease or condition. With respect to whether the disability is MST-related, the burden is “more likely than not” (50.1 percent or higher). The VA exam becomes a major part of the evidence to be used by the administrative law judge to determine if you are eligible for benefits.

Contact New Orleans SSDI and VA Benefits Law Firm Ascend Disability Today

If you suffered an in-service MST event and are now suffering debilitating physical and mental conditions as a result, you might be eligible for VA disability benefits. You should seek the help of experienced legal counsel. At Ascend Disability Lawyers, LLC, we can help. We have extensive experience helping New Orleans veterans apply for VA disability including those who suffered MST. Contact us today via email or by calling directly.

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