I have found that most people familiar with veterans’ issues have at least heard about , and the secondary post-traumatic stress disorder (PTSD) that can develop as the result of MST. My colleagues and I have also written extensively about MST on our blogs.
When most people think about military trauma, including veterans’ advocates, the default is to always think of rape or some other form of sexual assault. But, while working on some of my recent cases, I was reminded that there are many other forms of “personal assault,” outside of MST, that if proven, would also entitle affected veterans to disability compensation.
Types of Personal Assault
To begin, it is important to highlight that the regulation that deals with service connection for PTSD due to in-service personal assault, 38 C.F.R. 3.304(f)(5), does not limit “personal assault” to only those cases where some sort of sexual infraction has been committed. To the contrary, the VA’s interpretation of the PTSD regulation specifically states that “personal assault” encompasses not only rape, but also physical assault, domestic battering, robbery, mugging, stalking, and harassment. All of these are examples of traumatic and stressful events, which fall within the VA’s definition of “personal assault.”
For example, if a service member is physically beat up, or robbed, or harassed in some way during service, then that sort of event could also potentially form the basis of a claim for service connection for PTSD, based on a “personal assault.” In other words, the event that constitutes the “assault” doesn’t have to be sexual in nature.
Difficulties with Personal Assault Claims
It goes without saying that proving a personal assault case is difficult. Yet, these cases are not impossible to win, and having the correct knowledge regarding how to navigate these claims is a great starting point.
In my experience, there are two aspects of personal assault claims that make them difficult to prove. First, there is an underlying stigma at the VA regarding any sort of claim for mental illness that is based on events that may not have been reported in the record, or, based any claim that is based on events that the VA believes are not able to be “objectively” proven. Second, the VA’s compensation and pension examiners, as well as the adjudicators, don’t seem to always know the VA’s own rules for evaluating personal assault claims, or, if they seem to know the rules on the surface, they don’t always follow them.
Three Rules that the VA Must Follow Before Deciding Personal Assault Claims
1. The VA cannot deny the claim simply because the incident was not reported.
In this regard, the VA’s guidelines specifically state that personal trauma is an extremely “personal and sensitive issue” and that they recognize that “many incidents of personal trauma are not officially reported.” Nevertheless, although this is what the guidelines state, the VA commonly denies claims due to the victim’s lack of reporting.
For this reason, if a decision is issued and the claim is denied strictly based on a lack of reporting, the veteran should absolutely file an appeal, because a denial on that basis is clear error.
2. The VA cannot deny the claim simply because the evidence, on the surface, doesn’t seem to support that a personal assault actually occurred.
In this regard, the VA’s guidelines specifically recognize that many victims have difficulties producing evidence to support that an in-service assault actually occurred. Therefore, the VA is required to consider “alternate” sources of evidence to help prove the claim.
Examples of the types of alternate evidence that the VA is required to consider, includes the following: records from law enforcement, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and lay statements from family members, fellow service members, clergy, etc.
Within this alternate evidence, the VA is required to consider “behavior changes,” which may indicate and provide validity to the claim that an assault occurred. For example, one of the common behavioral changes seen in assault cases, is where there has been a deterioration in work performance, or where there has been the new onset of substance abuse or unexplained mental issues which seem to have developed without any identifiable cause.
Although the VA has provided many examples regarding the alternate proof that can be submitted, it is important to note that the VA’s list is strictly a list of examples, and any other forms of favorable evidence that may support the claim, is acceptable.
3. The VA is required to evaluate after-the-fact medical opinions which support that an in-service personal assault occurred.
For most cases, a strong nexus opinion from a qualified medical professional is needed in order to succeed. In personal assault cases, this often means that mental health doctors will be reviewing records, sometimes very limited or sparse, in their efforts to evaluate if there is enough evidence in the file to support that it is at least as likely as not that the personal assault actually occurred.
In my experience, I have seen that if a doctor is able to give a favorable opinion to support the veteran, then the VA will often times try to discount that opinion, by stating that it was given “after-the-fact” and that the doctor’s opinion on this issue can’t possibly be valid.
Again, the law says that this is an improper reason for the VA to deny service connection, and if the claim is denied for this reason, the veteran needs to appeal.
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