published by Rachel Natelson, SWAN's Legal Adviser, in THE HUFFINGTON POST,
August 4, 2010
UNEQUAL AND UNRECOGNIZED
the weeks following the release of regulations designed to simplify the process
by which veterans with PTSD can access benefits, advocates of every stripe have
clamored to declare victory in a long-waged battle against a system notorious
for resisting change. By eliminating the requirement that PTSD claimants
provide documentary evidence to prove that their condition stems from their
military experience, the Department of Veterans Affairs has indeed eased the
path to compensation, justifying no small amount of celebration.
some veterans, however, the struggle to secure compensation for service-induced
trauma continues unabated. While the new PTSD rules recognize that women in
uniform are increasingly likely to experience deployment-related stressors,
they fail to respond to the single strongest predictor of PTSD for this
population: military sexual trauma. The data supporting this causal link is
sobering; studies not only reveal sexual assault to be a stronger predictor of
PTSD for women veterans than combat history, but also suggest that sexual
harassment causes the same rates of PTSD in women as combat does in men.
this correlation, the VA grants benefits to a significantly smaller percentage
of female than male PTSD claimants. This disparity stems largely from the
difficulties of substantiating experiences of military sexual assault and
harassment. To begin, at least 80% of assault victims fail to report the
offense, and over 20% of those who do file reports opt for a "restricted"
mode that precludes official investigation. As underreported as sexual assault
may be in civilian society, military culture poses a host of additional
barriers, ranging from lack of confidentiality to fear of punishment for
collateral misconduct to impact on security clearance and availability for
cases of sexual harassment, these cultural barriers are only exacerbated by an
official policy of limited recordkeeping. At the direction of the Department of
Defense, paper records of substantiated harassment cases are retained only two
years after the closing of a complaint, and electronic files are erased from a
Discrimination and Sexual Harassment (DASH) database after five years.
these obstacles to documentation, one would imagine that any effort to relax
the evidentiary basis for accessing PTSD compensation would prioritize victims
of in-service personal assault and harassment. In effect, however, the new PTSD
rule applies only to veterans who have been exposed to stressors that trigger
"fear of hostile military or terrorist activity," a provision that
excludes those traumatized by the conduct of their brothers in arms. Similarly,
the new rule covers only deployment-related stressors, overlooking the 90% of
assault episodes that occur outside of a combat zone.
a result, veterans with PTSD stemming from military sexual trauma (MST) must
continue to assemble a welter of paperwork to document the veracity of their claims, while those who have experienced deployment-related stressors may
simply submit a first-person statement along with a diagnosis from a VA medical
provider. Although MST claimants need not rely exclusively on information
contained within their service records, they are required at a minimum to
submit evidence in the form of law enforcement or counseling records, pregnancy
or STD tests, and statements from fellow servicemembers.
allowing personal discretion to eclipse objective criteria in claims
determinations, this verification requirement too often translates into an excuse
for protracted review, at times averaging close to a year in length. Perhaps
the most significant aspect of the new PTSD rule is its potential to impose a
shortcut on claims processors, who might otherwise delay their findings by
demanding a perpetual flow of supporting documents.
by specifying that a diagnosis from a VA medical provider is sufficient to
establish eligibility for PTSD compensation, the new rule promises to alleviate
an institutional practice of discounting agency treatment records in favor of
one-time diagnostic exam results on the assumption that treating counselors and
physicians are "biased" in favor of their patients. This trend is
especially prevalent with PTSD claims, which the VA compensation exam guide
explicitly deems "easy to fabricate," advising examiners to
supplement such claims with extensive documentation.
most PTSD claimants need no longer bear the burden of such institutional
distrust, sexual assault and harassment victims remain captive to its demands.
If principles of basic fairness are insufficient to remedy this double
standard, there are ample policy arguments to be made in favor of facilitating
access to compensation for MST claimants. Not only are returning servicewomen
nearly four times as likely as men to become homeless, but roughly 40% of those
who experience homelessness also report having been sexually assaulted while in
the military. If Secretary Shinseki is genuinely committed to ending
homelessness among veterans, he must recognize that while the VA may
discriminate against assault victims, trauma-induced hardship does not.