In 2018, the Veterans Administration audited all the Post Traumatic Stress Disorder claims related to Military Sexual Trauma (PTSD MST) that it received in 2017. Claims examiners denied roughly halfof those applications.
The high denial rate did not surprise most VA disability attorneys. High denial rates are extremely common, mostly because the claims examiner only views one side of the story during the initial review.
What was surprising was the fact that, in many cases, claims examiners disregarded procedures and denied claims that should have been approved. In other words, unless you have an experienced attorney, the merits of your PTSD MST claim may be irrelevant. The claims examiner might deny it anyway.
Most of the handling errors involved either a misapplication of the underlying law or a failure to properly evaluate circumstantial evidence.
Unverified Stressor
In this context, “stressor” is a euphemistic term for a sexual assault. Generally, to receive PTSD benefits, there must be a triggering event in the claimant’s service record.
But PTSD MST claims do not fall under these general rules. Normally, victims do not report military sexual assaults, even months or years after they occurred. Some victims do not want to relive the trauma of that event, while others fear retaliation. Coming forward in any way, even by filing a claim for disability benefits, is a big risk, even in the #MeToo era.
The applicable regulation places sexual trauma in the “assault” category. Under this liberalized view, claimants do not need to have a stressor event in their files. In the case of MST, such an event is almost never there.
Nevertheless, the claimant must still establish that a service-related incident caused the PTSD. This requirement makes it important to properly evaluate the circumstantial evidence in the claim, as outlined below.
“Lack of Markers” Denials
Essentially, markers are circumstantial evidence that support PTSD MST claims. The aforementioned liberalization does not just apply to the claim category. This standard also applies to marker evaluation. As a result, claims examiners may take a vast array of circumstantial evidence into account, such as:
- Performance Changes: PTSD symptoms like flashbacks and nightmares make it difficult to function at work. So, in the wake of an MST incident, many victims perform poorly at work. Other times, the opposite is true. Other victims try to cover up their PTSD by putting forth even greater effort at work. So, their performance evaluations may go through the roof, at least temporarily.
- Substance Abuse: PTSD patients often self-medicate with alcohol or painkillers. Over time, the victim must increase substance use to obtain the same effects. Eventually, the abuse becomes impossible to hide.
- STD and Pregnancy Tests: Most people do not request such tests unless they believe they may be pregnant or may have a sexually transmitted disease. A few people do obtain these tests for other purposes, such as to placate a spouse or partner, but these instances are rare.
- Transfer Requests: Similarly, most transfer requests do not come out of nowhere. Servicemembers usually request transfers because they are dissatisfied with their current assignment or want a change of scenery. Or, transfers can be requested to avoid abusers or harassers. Such requests are classic PTSD reactions.
In general, it is difficult to obtain convictions in criminal court with circumstantial evidence. The burden of proof is too high. But in most VA disability claims, the burden of proof is only at least as likely as not. So, if the victim can point to at least two of the items on the above list, there may be enough circumstantial evidence to support the claim.
The absence of records may be significant. For example, if the victim’s background includes any of the markers listed above and there was no sexual assault report to civilian authorities, that lack of information along with the victim’s testimony may be sufficient to establish a service connection.
Count on Experienced Attorneys
PTSD MST are different from ordinary PTSD disability claims. For a free consultation with an experienced veterans disability lawyer, contact Cameron Firm, PC at 800-861-7262 or fill out the contact box to your right. We are here to represent veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.
