Overcoming the Difficulty of the VA’s Denial of a Claim for Military Sexual Trauma

The January 13, 2015 Washington Post article, “Veterans who were discharged after sexual assaults push for VA benefits” underscores the problems facing military victims of sexual assault.  As a veterans disability lawyer that represents victims of military sexual trauma, the story of Elena Giordano is all too familiar.  Veterans who are the victims of military sexual assault feel caught between the proverbial rock and a hard place.  If they report the incident they risk retaliation or being viewed as the party to blame.  Worse, in cases of male-on-male sexual assault, the victim faces being labled as a homosexual.  But if they fail to report it, then they can be guaranteed of VA denying their claim for disability compensation after they discharge from service.  Furthermore, for those that do report the military rape, the shame is often made exponentially worse by commanding officers who react with a cavalier attitude, appearing more concerned about protecting the career of the perpetrator.

The psychiatric trauma is, unfortunately, aggravated by VA’s repeated denials of these claims.  Once a victim of military sexual trauma leaves the service and applies for VA disability compensation, the VA will invariably deny the claim unless there is explicit mention of the trauma in the service medical or personnel records.  Because of the shame and guilt that accompany an in-service personal assault, the official records rarely, if ever, contain the “smoking gun” documentation that a rape took place in the military.  If such clear documentation existed, the claim would be easily granted without the necessity of a lengthy appeal.  As a veterans benefits attorney who represents the victims of military sexual assault, we only see the difficult cases that lack direct proof of the in-service military sexual trauma.

In the case of Elena Giordano, the facts of her case would allow a veterans benefits attorney who handles military sexual assault cases to build a successful appeal.  It’s unfortunate that it took Ms. Giordano a decade to win her claim for VA benefits for military sexual trauma.  But with proper planning and a comprehensive legal and medical strategy, a claim such as hers could have been won earlier in the process. The key to her case, and others like hers, is the documented evidence of behavioral changes.  This evidence, coupled with a strong psychiatric expert opinion, is often enough to win these claims.

To summarize the facts noted in the article, after Ms. Giordano was raped in the Navy, she immediately changed from being a top-notch sailor to facing discipline for the drastic decline in her work performance and behavior.  She faced the difficult choice of whether to reveal the sexual assualt and risk the humiliation and possible retaliation, or keeping it a secret and being disciplined for her inability to perform.  In Ms. Giordano’s case, she revealed the sexual assault and three weeks later she was out of the service.  The whole incident ruined her career; the residual psychiatric trauma ruined the rest of her life. 

And does VA care?

Ask any veteran whose case has been on appeal for years and you’re guaranteed to get the same answer.  No, VA does not care, and its refusal to believe suffering veterans who were humiliated and victimized in service adds insult to injury. I cannot remember how many times I’ve heard veterans lament that their PTSD has worsened as a result of VA’s treatment of them and its repeated denials of their claims. 

So, if your claim for military sexual trauma has been denied…again, then I recommend you take the following steps:

1. Don’t give up.  Continue the appeal; file your NOD, your VA Form 9, or your appeal to the U.S. Court of Appeals for Veterans Claims.  If you have the bare minimum of evidence, staying in the game long enough usually pays off.
2. Get more evidence.  In most cases you should obtain an expert medical opinion of a psychiatric expert who has experience dealing wtih military sexual assault victims.  These experts understand that most vicitms tend not to report these assaults, and they also understand that not reporting the rape is often more consistent with the typical response of a victim of military sexual trauma.
3. Obtain the statements of friends and family who can attest to the drastic change in your behavior after service.
4. Highlight in-service changes in behavior and work performance.  Also look for the onset of heavy alcohol or illicit drug use.
5. Summarize your relationships with others after the assault.  Did one of your primary relationships break up after the assault?  Did you contract a venereal disease?
6. Look for the early hints of psychiatric symptoms during service.  Did you experience the early symptoms of psychiatric problems that, in retrospect, could represent evidence of the onset of the problem?  If so, your medical expert should emphasize this.

Sometimes, how to obtain this type of evidence and how to present it to achieve a winning result can be difficult on your own.  If you are struggling to deal with an appeal for the VA denial of your claim for military sexual trauma or PTSD, after you have filed your NOD you can hire a veterans disabilty attorney to help you.  Although lawyers charge fees, in difficult cases where high-powered experts are needed, bringing on an attorney can make the difference between winning and losing.