"As written, 38 CFR 3.304(f) requires that a veteran seeking disability compensation for PTSD caused by MST must provide VA with “credible supporting evidence that the claimed in-service stressor occurred.” Part Five of this section includes a long list of potential evidence including police records and medical reports that could be used to corroborate the personal assault. On paper, this requirement seems reasonable. Don’t we all like to believe we would seek justice or medical treatment if we were attacked? Working with victims of MST taught me how misinformed that view is. What I have learned from these men and women is that the response to assault in the military is very particular to the military culture and military justice system and should not be thought of as analogous to sexual assault in civilian society. Current Department of Defense practices disincentivize victims from coming forward and seeking justice. Reporting an offender could jeopardize a servicemember’s career, destroy his working relationships, or subject her to further harassment or even official punishment. The current regulation demonstrates a fundamental misunderstanding of the nature of sexual assault in the military and it is past time to correct it.
"I would like to share with you two examples of veterans I have assisted in applying for VA compensation for PTSD caused by rape in the military and the difficulty of using 38 CFR 3.304(f)(5) in these real world cases. In my teaching capacity, I co-supervised a team of students who helped a female veteran establish service connection for PTSD stemming from a rape at Camp Lejeune in the early 1970’s. This veteran had been out drinking at an NCO club. She was 18. The acquaintance walking her home pushed her through a window and raped her in a barren room. This veteran felt tremendous shame and personal responsibility for having been out at night, for having been drinking, and for having trusted the wrong person. She feared that her romantic partner would leave her if she told him she had been raped. What’s worse, her assailant bragged about his conquest and her warrant officer told her that 'she was the reason why women should not be allowed in the military.' She was plagued by PTSD for decades following this assault and was diagnosed and is treated for it by a VA doctor.
"Section 3.304 places a heavy burden on a traumatized veteran like this client. The culture and atmosphere of the military discouraged her from reporting this rape, but winning a PTSD claim like hers requires the kind of documentation that can only come from speaking about the event. As time passes producing this type of documentation becomes increasingly difficult. For veterans like our client, whose rape occurred in the 1970s, this is a monumental obstacle to overcome.
"As her advocates, assisting this veteran was incredibly involved. Her parents had died, her marriage failed, there were no surviving letters of hers from that time, and no journals or court records. She had lost contact with anyone she had served with thirty years earlier. She had been too ashamed and afraid to seek medical help. Mental health treatment was even less common and more stigmatized then than it is now. She didn’t seek a transfer and she wasn’t demoted - she just did her job and suffered silently. What documentary evidence is she supposed to provide to corroborate her experience? In a civil case, a judge or jury would be able to weigh the credibility of her testimony and the testimony of a doctor treating her; why does the VA demand more?
"Under the current standard, it took hours of work by two incredibly talented Yale law students and an unusually cooperative VA psychiatrist to build her case based on the meager contemporaneous evidence of weight loss and missed duty assignments available in her service records. Most veterans do not have the benefit of a team of law students tirelessly scrutinizing their records, or a VA psychiatrist willing to draft and redraft letters with law students to include the type of language the VA requires. Another option might have been an independent forensic psychiatric evaluation that would have cost several thousand dollars my client did not have and for which the VA would not pay.
"The lack of documentary evidence is the rule, not the exception. I recently met with a female veteran being treated at the VA for PTSD caused by MST. While in boot camp, two sergeants had sent everyone out and kept her behind; they raped her in the barracks. Decades later I was the first person she ever told. She didn’t tell anyone at the time because it would have meant the end of a career. This veteran, who served in Iraq, achieved the rank of Master Sergeant and retired after 28 years in the military fought back tears as she related this experience. This was only one of the episodes of MST she described.
"This veteran’s claim also faces an almost impossible evidentiary burden because of 38 CFR 3.304(f)(5). She did not tell anyone what had happened so there are no medical records, no letters home, and no action taken against her assailants. In order to succeed in the Army this veteran felt forced to stay silent and now she will be punished for her silence because the VA will refuse to credit her story based on her testimony alone. As her advocate, it will take me and my team hours of phone calls to family members and old friends, combing through service personnel records, and begging doctors to provide free psychiatric evaluations to prove her claim. This is surely not what the VA anticipated when it adopted 38 CFR 3.304(f)(5), but it is the reality of how it is working in practice.
"We create the conditions that compel traumatized people like these two women to remain silent, and then we punish them for that silence by refusing to accept their story when they come forward to tell it. We know that this is grossly unfair, and we know how to fix it. The VA can and should remedy this situation by amending 38 CFR 3.304(f)(5) to provide victims of military sexual trauma the same benefit of the doubt that combat veterans are afforded under 38 CFR 3.304(f)(2). There is no excuse for permitting the current regulation to stand. I hope this subcommittee exercises its responsibility to America’s veterans to correct this injustice. Holding this hearing is an important step towards change and I thank you again for the opportunity to testify."
Photograph of an Aviation Boatswain's Mate 3rd Class operating the crash and salvage truck in case of an emergency on the aircraft carrier’s flight deck.
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