Robert: Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick and with me today is
Barb Cook, also from Chisholm Chisholm & Kilpatrick and today we're going to be talking about
military sexual trauma cases and how they're handled at the VA.
Can you tell us how VA defines military sexual trauma?
Barb: Sure.
They define it as a psychological trauma that results from a physical assault or battery
of a sexual nature or a psychological trauma that results from harassment, sexual harassment,
which they in turn define as repeated and unsolicited verbal or physical contact of
a sexual nature.
Robert: So when we started handling these claims in the early days, let's say in the
early 1990s, I used to think of MST and PTSD as -- MST really as a subset of post-traumatic
stress disorder claims but they're not really, are they?
Barb: I don't think so and I think that the VA still primarily perhaps exclusively considers
them that way.
But in fact, it's any psychological trauma.
The diagnosis does not have to be post-traumatic stress disorder or PTSD.
It could be depression.
It could be anxiety.
It could be as I said, any psychiatric or psychological diagnosis.
In addition, it could be a physical diagnosis that results from the psychological trauma.
Robert: Are there any particular challenges that a veteran faces who was the victim of
a sexual assault in service?
Barb: Absolutely.
The survivors of these assaults frequently do not report them and one of the requirements
for VA is that, in these cases as well as in many cases, the underlying event has to
be established as having occurred.
It's not enough simply to show that one has the diagnosis.
One has to show that the diagnosis is related to something that happened in service while
the person was on active duty.
Robert: So, let me ask this question.
If these events are not typically reported and one can imagine why they wouldn't report
them during service, how does one go about establishing that the trauma actually occurred?
Barb: VA recognizes this problem and so it does have special rules in terms of MST cases
that explicitly instruct the adjudicators of these claims to look beyond the military
records.
And the individual's failure to report the event at that time, and the fact that the
incident or incidents are not recorded in the person's military records cannot as a
matter of law be used against the individual.
Instead, VA allows the person and instructs its adjudicators to have a very wide range
of ways of trying to show that the underlying event occurred.
These can focus on changes in behavior at that time, changes in social behavior such
as becoming more reclusive, changes in economic behavior, getting into debt.
It can be a request for transfer with -- when there's not really a basis for it.
It could be substance abuse, alcoholism, and changes in behavior in terms of being less
productive at work.
The examples are broad and non-exhaustive.
It's just any possible way of showing that these -- that the person was affected by something.
She may have -- she or he may have reported it to a friend, a relative, a minister, and
those reports could happen at the time of the event or it could happen later particularly
for example, if the person is in therapy and starts to recall or is able to describe what
happened.
Robert: So you said a couple of important things there, if I could just review.
So, let's say, a veteran comes to you and served say in the 1970s and let's say that
they were a victim of a sexual trauma but there's no evidence of it specifically in
the service records, that is it wasn't reported.
And let's say that the service records show that the veteran's performance dramatically
dropped after service.
Would that be a marker or something that the VA could rely on to show that possibly that
was the reason?
Barb: Yes, absolutely.
And, one of the other things the VA allows in these cases is that a VA therapist could
look at that information and that therapist could say then, "Yes, this is evidence that
this event occurred," and VA can use the therapist, the mental health professional's statement
as the proof it needs to show that the event actually occurred.
Again, even though it's not reported in any official record.
Robert: The other thing you said when we were just talking was that, it could happen to
a woman obviously but it can also to men.
Is that correct?
Barb: Yes, absolutely.
The VA itself estimates that approximately 50% of the claims are filed by men.
Robert: And, are there any specific rules with reference to confidentiality of how these
claims are processed by the VA?
Barb: Well the VA has confidentiality rules that apply to all of its claims of -- no one
has access to them with limited exceptions to information in the records.
That's true at the Regional Office level.
It's true at the Board of Veterans' Appeals level.
When the cases are filed at court, sections of the claims file are also filed as part
of the court's docket and those are also confidential.
Those are limited in terms of who has access -- members of the court, the attorneys, or
advocates representing the individual.
In MST cases, in addition, it is possible at court to ask the court to seal the record
which means that no member of the public would be able to see any part of the pleadings filed
in court.
And it is also possible and we have done this successfully, to ask the court to permit the survivor to
pursue the claim under a pseudonym such as Jane Doe or under initials, not the individual's
initials but just made up initials, so that the record again is not accessible to anyone
other than members of the court and counsel.
Robert: Do you believe that the VA with this regulation that they now have is adjudicating
all these claims properly?
Barb: No, I do not.
I think that they make mistakes.
They -- I do think as I indicated before that they often narrowly limit the types of diagnoses
that they would consider proper for this consideration.
I think that they don't always look as expansively as they might in terms of what evidence of
behavior changes or what other evidence, not just behavior changes but things like a person
getting a pregnancy test or getting a series of pregnancy tests or testing for sexually
transmitted diseases.
Things like that which can all be evidence that shows that the individual did suffer
at the time.
So no, I don't think that they do.
They also tend not to look at reports from non-VA healthcare providers, which is one
of the things that they -- that claimants can be helped with is getting a non-VA healthcare
provider to actually review the records and make this assessment that can then help show
that the diagnosis is related to the underlying event.
Robert: One last question if I could and that is, let's suppose a veteran is denied their
claim at the Regional Office.
What do you recommend?
Barb: I recommend that they appeal it.
I also recommend that they get the help of an experienced and trained advocate to help
them negotiate through the system.
It's a long process.
It's a challenging process.
The VA's paperwork can be very confusing and it helps to have someone who knows what they're
doing to get through the process.
Robert: Is there anything else you have that you want to talk about in terms of these MST
cases?
Barb: As with all claims, I feel that the VA compensation is a contract that we have
as a nation with people who serve.
And, this is not a gift.
This is not something people should be reluctant to take advantage of.
We cut a deal with people who volunteer and who do serve that says, "If you are injured
on active duty, we will help take care of you," and that's what this is all about.
Robert: Thank you Barb.
Barb: Thank you.
Robert: This is Robert Chisholm and Barb Cook from Chisholm Chisholm & Kilpatrick.
Thank you.