Developing Evidence to Win Your MST Claim


undefined

Winning any VA disability claim can be a daunting task. But Veterans with PTSD related to Military Sexual Trauma (MST) usually face a difficult up-hill battle for one important reason: Sexual trauma is rarely reported in service, often because of fear of reprisal, fear that nothing will be done, and because military culture tells you to “sweep everything under the rug.”

Normally, to establish service connection for PTSD, you need the following:

  1. A diagnosis of PTSD;
  2. Medical evidence establishing a link between the PTSD diagnosis and an service stressor; and
  3. Credible supporting evidence that the reported service stressor occurred. 38 C.F.R. 3.304(f).

Veterans with PTSD related to MST usually have a problem proving that third part because there wouldn’t be documentation of an unreported stressor. So how is this type of claim won?

38 C.F.R. 3.304(f)(5).

The VA has created a relaxed evidentiary standard for survivors of MST, which allows veterans to use circumstantial evidence to corroborate their report. For each MST veteran that I represent, I tell them that a case can be won or lost based on our ability to gather or create that circumstantial evidence.

38 C.F.R. 3.304(f)(5) states:
“If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: 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. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.”

Evidence of unexplained behavioral changes can often be the key to any MST case. I always ask the veteran if there is a life-long friend or family member who can attest to:

  • Whether the veteran seemed noticeably different when they returned from service;
  • What the veteran was like before service, like:
    • Whether they got good grades, played sports, had lots of friends, had no legal issues, had no mental health treatment, etc.
  • Whether the friend/family member has directly observed any mental health symptoms in the veteran since service.

The VA will consider this type of evidence “markers,” or evidence suggesting the possibility that a trauma occurred. 38 C.F.R. 3.304(f)(5) describes some types of markers, including:

“a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause”

Many MST cases have been won based on the veteran’s (or their advocate’s) ability to identify the above-referenced markers in their record. For instance, I just won the case of a female veteran whose case involved the following facts:

  • Unreported sexual assault
  • Received “failure to adapt” discharge after she was hospitalized for a suicide attempt and was diagnosed with Adjustment Disorder during AIT
  • I found the following markers in her record that the VA missed:
    • Service treatment records showing loss of appetite, sleep disturbance, and depression without explanation, shortly after the MST occurred
    • Service personnel records documenting the veteran’s request to be separated because she was “homesick”
  • I submitted an appeal brief flagging these markers, submitting a statement from her aunt discussing unexplained behavioral changes, and requesting a Comp & Pen exam
  • The VA ordered the exam, procured a positive nexus, and the veteran finally received the benefits she deserved.

Winning any MST case often takes a little creativity and a lot of due diligence. It’s a balance of creating new evidence and identifying circumstantial evidence already in the record. Don’t let the VA tell you that your claim is denied because you didn’t report an MST in service. Use 3.304(f)(5) to get the benefits you deserve.

If you have any questions, please feel free to contact me at kcraveiro@roblevine.com.

–Kelsey

This entry was posted in All about Veterans, Guest authors, Lawyering Up, MST, PTSD, Tips and Tricks, VA Attorneys, Veterans Law, Women Vets and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

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