Military sexual trauma can have consequences that continue long after a veteran leaves military service. For some veterans, those consequences include PTSD, depression, anxiety, or other mental and physical health conditions.

Veterans who experienced military sexual trauma may be entitled to VA disability compensation for conditions resulting from that trauma. But these claims can present a particular problem: sexual assault and sexual harassment are often never officially reported.

VA recognizes this reality.

What Is Military Sexual Trauma?

The Department of Veterans Affairs uses the term Military Sexual Trauma, or MST, to refer to sexual assault or threatening sexual harassment experienced during military service.

MST itself is not a medical diagnosis or a disability rating. Instead, a veteran may seek VA disability compensation for a mental or physical health condition caused or aggravated by MST. PTSD is one example, but MST can potentially result in other mental or physical health conditions as well.

Do You Have to Have Reported the Assault While You Were in the Military?

No. This is one of the most important things veterans should understand about MST-related disability claims.

There are many reasons a service member may not report sexual assault when it happens — fear of retaliation, damage to a military career, disbelief, embarrassment, or consequences from reporting someone within the chain of command.

For PTSD claims based on in-service personal assault, VA’s rules under 38 C.F.R. § 3.304(f)(5) recognize this problem and allow evidence from sources other than a veteran’s service records to potentially corroborate the claimed stressor.

The absence of an official report does not necessarily mean the absence of evidence.

What Are “Markers” in an MST Claim?

Because there may be no police report, military investigation, or service treatment record documenting what happened, evidence of changes surrounding or following the traumatic event can become important. These are often referred to as markers.

Depending on the circumstances, relevant evidence may include:

• Changes in work performance;
• Requests for a transfer to another military assignment;
• Episodes of depression, anxiety, or panic attacks;
• Substance use problems;
• Unexplained behavioral changes;
• Relationship problems;
• Changes in eating habits or weight;
• Pregnancy testing;
• Testing for sexually transmitted infections;
• Treatment for physical injuries;
• Visits to medical or counseling facilities; or
• Statements or observations from family members, friends, fellow service members, clergy, counselors, or others.

A veteran’s claim should be evaluated based on the evidence and circumstances of that individual case.

For PTSD claims based on personal assault, VA may also submit the evidence to an appropriate medical or mental-health professional for an opinion as to whether the evidence indicates that a personal assault occurred.

Can Statements From Other People Help?

Yes. Statements from people who knew the veteran during or after military service can potentially provide important evidence.

For example, a fellow service member might remember a sudden change in behavior or performance. A family member might remember receiving an unusual telephone call or a significant change in the veteran’s personality. A friend might remember the veteran becoming withdrawn or experiencing difficulties after a particular assignment or period of service.

Importantly, the person providing the statement does not necessarily have to have witnessed the assault itself. What that person personally observed before and after the event may also be relevant.

MST and PTSD Claims

A veteran seeking disability compensation generally must establish more than the fact that a traumatic event occurred. For an MST-related PTSD claim, the evidence must also address whether the veteran has PTSD and whether the condition is connected to the in-service stressor.

VA’s regulations contain special evidentiary provisions for PTSD claims based on in-service personal assault. These provisions are important because sexual assaults frequently are not officially documented when they occur.

That means a PTSD claim arising from MST should not necessarily be evaluated in the same way as a PTSD claim involving an event that would ordinarily be expected to appear clearly in a veteran’s service records.

It is also important to distinguish MST from PTSD. MST describes the underlying experience. PTSD is one potential disability that may result from that experience. Veterans may potentially seek service connection for other mental or physical conditions resulting from MST as well.

What Happens at a C&P Examination?

VA may schedule a Compensation and Pension examination, commonly called a C&P exam, while developing an MST-related disability claim.

The examiner may evaluate whether the veteran has a diagnosable mental health condition, how the condition affects the veteran, and whether the condition is related to the reported in-service trauma.

For many veterans, discussing an MST experience with an examiner can be extremely difficult. Veterans should understand that the examination can become an important part of the evidence VA considers when deciding the claim.

VA also allows a veteran to request a male or female provider for a claim examination involving a mental or physical health condition resulting from MST.

What If VA Denies an MST Claim?

A denial does not necessarily mean the claim is over. The first question should be: why did VA deny the claim?

VA may dispute whether there is sufficient evidence of the in-service event. It may find that the evidence does not establish a current disability or a connection between the current condition and military service. In other cases, VA may grant service connection but assign a disability rating or effective date with which the veteran disagrees.

Depending on the circumstances and procedural history, a veteran may have several options for challenging a VA decision, including:

• Filing a Supplemental Claim;
• Requesting Higher-Level Review; or
• Appealing to the Board of Veterans’ Appeals.

The correct option depends on the particular decision, the evidence available, and what the veteran is challenging.

Timing also matters. Veterans who disagree with a decision should pay close attention to the deadlines contained in the VA decision letter, because continuously pursuing a claim can be important to protecting the effective date.

An Old MST Denial May Deserve Another Look

Obtaining service connection after years of fighting with VA can be a tremendous victory. But sometimes the analysis should not end with the words “service connection granted.”

Consider a veteran who filed a claim for PTSD related to MST many years ago. VA denied it. Years later, the veteran files again, and VA ultimately grants service connection.

The veteran should not automatically assume that the effective date assigned with the later grant is necessarily the earliest effective date permitted by law.

The history of the earlier claim may deserve careful examination. Two issues in particular can affect the effective date of a previously denied claim: Clear and Unmistakable Error (CUE) and the later association of certain relevant official service department records under 38 C.F.R. § 3.156(c).

Clear and Unmistakable Error (CUE) — 38 C.F.R. § 3.105(a)

In some cases, an older, final VA decision may contain Clear and Unmistakable Error, commonly called CUE. For final VA agency-of-original-jurisdiction decisions, CUE is addressed by 38 C.F.R. § 3.105(a).

CUE is a demanding legal standard.

It is not enough to establish that VA could have weighed the evidence differently, or that another decision-maker might have reached a different conclusion. And the fact that VA eventually granted the claim does not, standing alone, establish CUE in an earlier denial.

A CUE analysis generally requires examining the record and the law that existed when VA made the challenged decision and determining whether an undebatable error occurred that would have manifestly changed the outcome.

When evaluating an old denial, it may be necessary to examine:

• What evidence was before VA?
• What law and regulations applied at the time?
• What did VA find — or fail to find?
• Did VA correctly apply the law that existed at the time to the facts then before it?

If CUE is established in a prior final decision, that decision can be revised as though the error had not occurred. As a result, a successful CUE challenge can have significant consequences for a veteran’s effective date and retroactive compensation.

CUE in a final decision of the Board of Veterans’ Appeals is governed by separate statutory and regulatory provisions.

Later-Received Service Records — 38 C.F.R. § 3.156(c)

CUE is not the only issue that can affect the effective date of a previously denied claim.

38 C.F.R. § 3.156(c) contains special rules concerning certain relevant official service department records that existed but had not been associated with the claims file when VA first decided the claim.

Under appropriate circumstances, the later receipt of qualifying records can require VA to reconsider a previously decided claim.

If VA ultimately awards benefits based all or in part on qualifying service department records, § 3.156(c)’s effective-date provisions can potentially result in an effective date as early as the date VA received the previously decided claim, depending on when entitlement arose and the other applicable effective-date rules.

Not every military record obtained after a denial will qualify, and the regulation contains important limitations. But when reviewing an MST-related claim that was denied years earlier, it is important to determine whether relevant official service department records were later added to the veteran’s file and whether those records played a role in the eventual award.

Why This Matters

An earlier effective date is not available simply because VA previously denied a claim. But a veteran should not automatically assume that the date VA assigned in a later favorable decision is necessarily the end of the analysis.

The procedural history, the evidence before VA at each stage, the law that applied at the time, whether the veteran continuously pursued the claim, and whether relevant service department records surfaced later can all matter when determining whether VA assigned the correct effective date.

You Do Not Necessarily Need an Official Report to Have a Valid MST Claim

Perhaps the most important point for veterans to understand is this: a veteran should not assume that an MST-related VA disability claim is impossible simply because the assault or harassment was never officially reported during military service.

VA recognizes that personal assaults may not appear in traditional military records. Other forms of evidence may help establish what occurred and whether a current disability is connected to military service.

Likewise, a veteran who was denied years ago should not necessarily assume that the earlier claim is now irrelevant. The procedural history, evidence, applicable law, and later-obtained records can sometimes have significant consequences.

Every MST claim is different. These cases deserve careful and respectful consideration of the veteran’s experience, the evidence, and the entire history of the VA claim.

Frequently Asked Questions About MST and VA Disability Claims

1. Can I receive VA disability for MST if I never reported the assault?

Yes, potentially. An official report during military service is not necessarily required.

For PTSD claims based on in-service personal assault, VA recognizes that personal assaults often go unreported, and special evidentiary rules allow evidence from other sources and evidence of behavioral changes to potentially corroborate the claimed stressor.

2. What evidence can help support an MST-related PTSD claim?

Evidence may include military personnel or treatment records, investigative records, medical records, counseling records, statements from family members or fellow service members, requests for transfer, changes in work performance or behavior, substance use problems, pregnancy or STI testing, and other evidence surrounding or following the reported trauma.

The evidence that matters will depend on the circumstances of the individual veteran’s claim.

3. Is military sexual trauma itself a VA disability?

No. MST describes certain experiences of sexual assault or threatening sexual harassment during military service.

VA disability compensation may be available for a mental or physical health condition caused or aggravated by MST if the requirements for service connection are met.

4. Can I challenge an old VA denial of an MST claim and receive an earlier effective date?

Possibly.

The fact that VA previously denied an MST-related claim does not automatically mean that an earlier effective date is available. However, the history of an older claim may need to be examined for issues involving continuous pursuit, Clear and Unmistakable Error (CUE), or the later receipt of qualifying relevant official service department records under 38 C.F.R. § 3.156(c).

A veteran who eventually receives service connection after an earlier denial should not necessarily assume that the effective date assigned by VA is beyond review.

5. What should I do if VA denied my MST-related disability claim?

Start by determining exactly why VA denied the claim.

Depending on the decision, evidence, timing, and procedural history, a veteran may be able to file a Supplemental Claim, request Higher-Level Review, or appeal to the Board of Veterans’ Appeals.

If there are older final decisions involving the same disability, those decisions may also deserve review to determine whether there are separate effective-date issues.

An MST Claim May Deserve a Careful Review

Veterans who experienced military sexual trauma may have spent years — or even decades — without discussing what happened. Seeking VA disability compensation does not require a veteran to have reported the incident when it occurred.

If an MST-related condition is affecting you today, or if VA denied your claim in the past, your claim and its history may deserve a careful review. An old denial does not necessarily tell the entire story, particularly when there may be additional evidence, later-obtained service records, or questions concerning the effective date of an eventual award.

Travis Sayre, Esq.
Sayre Law Services, PLLC
Veterans Disability Representation

Legal Advertisement: This article is provided for educational and informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship with Sayre Law Services, PLLC or Travis Sayre, Esq. Every VA disability claim is different, and past results do not guarantee future outcomes.