QUICK FACTS:

The Problem:

• In 2012, a Department of Veterans Affairs (VA) Regional Office (RO) denied a Veteran entitlement to a service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma (MST).

• The Veteran was sexually assaulted in 1970 during her service in the Air Force.

• She did not report the assault after it happened, fearing that she wouldn’t be believed.

The Solution:

• The Veteran enlisted the help of attorney Michael D.J. Eisenberg to appeal the RO’s rating decision before the Board of Veterans’ Appeals (BVA).

• With counsel, the Veteran produced numerous medical records and physician notes from the VA diagnosing her with PTSD due to MST, proving the existence of a present disability.

• The Veteran’s attorney presented evidence demonstrating the in-service incurrence of harm, and statements from family demonstrating a link between her current condition and the in-service stressor.

The Result:

• By proving the existence of the Veteran’s disability, the in-service incurrence of the harm, and the causal relationship between the present disability and the harm that was incurred during service, the evidence was in favor of the Veteran’s claim.

• The BVA granted the Veteran’s claim of service connection for posttraumatic stress disorder, entitling her to the appropriate benefits.

What is Military Sexual Trauma?

The VA uses the term ‘military sexual trauma’ (MST) to refer to any kind of sexual assault or harassment experienced by a service member. MST can impact service members of any rank, age, sexual orientation, race, or gender.

Part of what makes MST unique are the power dynamics present in the military. Many service members who experience MST aren’t comfortable reporting their perpetrators; in fact, the vast majority of victims don’t report the assault.

The Impact of MST and PTSD

PTSD resulting from MST can have horrible consequences on a service member’s mental and physical health. It can lead to nightmares, self-isolation, depression, and poor sleep, as this Veteran experienced for over 35 years.

Additionally, PTSD from MST can impact a person’s relationships for their entire lives. In this case, the Veteran became very withdrawn and cautious due to the trauma she lived with; she avoided physical intimacy and affection with her partners, including her husband of 19 years, and was distant with her family.

As Mr. Eisenberg demonstrated in this case, victims who suffer from PTSD due to MST can receive the benefits they’re entitled to, even if they never reported the assault. However, the military must protect and believe victims, so it doesn’t take decades to get the justice they deserve.

Our Veteran’s Familiar Experience

The Veteran served in the U.S. Air Force from 1969-1973, and again in 1978. She was invited to celebrate the New Year in December of 1970 with an officer who took her to the officer’s club at the March Air Reserve Base in Riverside County, California.

The Veteran and the officer began dancing, and the Veteran very suddenly became woozy, despite only having taken a sip of her drink. She asked to be taken back to the barracks at the Norton Air Force Base where she was stationed, but the officer didn’t do so. Instead, he took the Veteran to his place, where he raped her.

Months later, the veteran learned she was pregnant, and had an abortion performed by a private doctor in San Bernardino.

Like countless other survivors of sexual abuse in the military, she didn’t believe reporting the assault would do anything, so she stayed silent. After all, it would have been “[her] word against a military officer,” and she thought it wouldn’t help her if she reported it. Her worries were not unfounded; the reality persists that a third of victims of military sexual violence are discharged within seven months of reporting the assault. However, she did request a change of assignment after the assault, and the request was granted.

After enduring the trauma of a sexual assault, the Veteran changed. She had once been open and communicative with her friends and family, but became withdrawn and unwilling to share even basic personal details about her life. 

It was decades later when she finally sought psychiatric treatment at a VA clinic in 2009, and was willing to be open about the trauma and assault she endured during her service. The Veteran received mental health care through the VA for four years beginning in late 2011, and VA notes from 2020 show she continued to seek treatment for the purpose of reducing symptoms of PTSD due to MST.

Why Was This Veteran Denied Her Benefits?

The Veteran was diagnosed with PTSD due to MST by VA physicians in 2009 and 2012; there was no question about her suffering. However, the RO denied her claim for a service connection for PTSD because there was no record of the assault in her personnel file. As the Veteran made clear, she did not think reporting the assault would have done her any good at the time.

Her story illustrates a broader issue facing the military: victims of sexual assault don’t feel comfortable reporting the perpetrators, who are often in their chain of command. In fact, most sexual assaults in the military go unreported. As a result, there’s often no record, and victims are forced to go through arduous processes such as the Board of Veterans’ Appeals to get the justice, benefits, and support they need and deserve.

How Did This Veteran Win Her Appeal?

Despite the Veteran’s record not containing any evidence of the assault at the time, with the help of her counsel, Michael D.J. Eisenberg, she was able to demonstrate a service connection to her PTSD.

To prove a service connection, there must be “competent” evidence demonstrating:

1. The existence of a disability

2. An in-service incurrence or aggravation of the disease or injury

3. A causal relationship between the present disability and the disease or injury that was incurred or aggravated during service.

During the Veteran’s visit to the VA in 2009, she was diagnosed with PTSD due to MST, which fulfilled the first requirement: an existing disability. However, she still had to prove the in-service incurrence of this harm, and the relationship between her current diagnosis and that stressor.

Although she didn’t report the in-service assault, the Veteran consistently provided credible reasons for not doing so, and her recollection of the event has been consistent throughout all VA interactions.

Additionally, her service records reflect her request for a transfer in duty stations and the subsequent approval of that request, which is an acceptable source for verifying the in-service assault, according to the basic considerations for determining a service connection. 

Additionally, statements provided by her family illustrate the changes her personality underwent following the assault, indicating a causal relationship between her PTSD and the assault she suffered during her service.

With all this evidence taken into account—the Veteran’s consistent statements, her service records confirming she transferred duty stations after the assault, her family’s statements regarding her change in personality after the assault, and the VA’s diagnosis of PTSD—there’s no reason to doubt the existence of a service connection. With this abundance of credible evidence, the BVA granted the Veteran’s claim for a service connection for PTSD.

A Denied Claim Isn’t Justice – You Have Options

If you have been denied a claim for service connection for PTSD due to MST, know that you’re not alone. Challenging the organization and people who failed to protect you can be intimidating, but with help, you can get the justice you deserve.

Michael D.J. Eisenberg believes survivors and victims who have been denied the benefits and compensation they’re entitled to. Mr. Eisenberg will review the laws and regulations relevant to your case, prepare arguments, and present your case while keeping you informed and up to date the entire time.

Don’t let a denied claim stop you from getting justice; contact the Law Office of Michael D.J. Eisenberg today for an initial case consultation.

Every case is different; this posting is for educational purposes only and is not intended to offer legal advice. For your specific legal matters, consult with an attorney before taking or not taking action

Note: Consultations for Veterans’ Benefits Appeals Matters are free; however, consultations for Military Records Issues and Medical/Physical Evaluation Boards are paid.