VA Opposes Law Loosening Benefit Requirements for MST Survivors

by Stephen Spotswood

July 12, 2019

WASHINGTON—New legislation would make it easier for victims of military sexual trauma to receive benefits, but the VA is opposing it. 

Among other provisions, the bill would lower the burden of proof necessary for MST survivors to prove service connection, allow MST-related benefits to mental health conditions beyond PTSD and expand the definition of MST to include online abuse. VA officials argued, however, at a House VA Subcommittee on Disability Assistance hearing last month that the provisions were too broad and would result in benefits being awarded without any corroborating proof. 

H.R. 1092—the Servicemembers and Veterans Empowerment and Support Act of 2019—would allow VA to accept a diagnosis of a mental health condition and testimony by a mental health professional that the trauma is related to MST as proof of service connection, regardless of whether there is any official record of an incident in the servicemember’s file. The reasoning behind the proposed change in the law is that the majority of MST is not reported during service and possibly not for many years afterward. Both DoD and VA officials have testified in previous appearances before Congress that servicemembers who experience sexual assault and harassment frequently keep the incident secret for fear of retaliation from peers and superiors and worry that the legal fallout would damage their military careers. That reluctance to report results in a lack of evidence that makes filing for VA benefits difficult once they are out of the service. In FY2019, DoD estimated that over 20,000 servicemembers had experienced MST and of those only 6,000 reported the incident.

“As a survivor of sexual violence who kept my experience secret for 40 years, I cannot understate the importance of this provision in the bill,” Rep. Ann McLane Kuster (D-NH) told VA officials at the hearing. “Our understanding of trauma has come so far, and we now recognize how difficult it is for survivors to acknowledge what happened to them and the risk they take in reporting. That their military careers may be on the line only adds pressure and hesitation to this decision.”

VA officials contended that there are already relaxed provisions in place for servicemembers seeking benefits related to MST and that the bill would take that liberal approach too far.

“VA has acknowledged the challenge of corroborate a veteran’s account of MST, which is why we allow decision-makers to consider other sources of evidence, such as changes in behavior and statements from other servicemembers or family when deciding claims,” VBA Deputy Undersecretary Willie Clark testified. “[Also] it is not necessary [for] survivors of MST to have reported the incident in service in order to be service-connected for PTSD due to MST.” 

Beth Murphy, director of VBA’s Compensation Service, contended that the bill would essentially require VA to award service connection from a single lay statement. “I certainly understand why folks would not want to come forward and report. That’s an individualized decision,” she said. “Our concern is that we’d be defaulting to yes this happened without an appropriate level of corroboration, which we have in the current way we profess claims.”

Fear of Fraudulent Claims

Other witnesses at the hearing testified that fraudulent claims of MST were rare. Elizabeth Tarloski, JD, MS, a staff attorney at the Veterans Benefits Clinic at William & Mary Law School, assists veterans in filing and appealing claims, especially complex claims involving PTSD, TBI and MST. Asked if she saw many fraudulent claims in her practice, Tarloski said, “The veterans I see as clients are extremely hesitant to open up to us at all. It sometimes takes multiple meetings and building trust. A lot of them feel like they’re not deserving of benefits. This is not an experience people want to share readily, let alone make up.”

Tarloski also testified that VA’s policy of allowing veterans to use markers involving behavior changes and other indicators of a response to trauma does not really make it easier for veterans to apply for benefits. With veterans waiting years before filing claims, such records may have been lost or destroyed. Also, sifting through records to determine what may be considered a marker can be difficult and time-consuming.

VA did not object to the other provisions in the bill, including expanding the definition of MST to include online abuse. Margret Bell, PhD, VA’s national deputy director for military sexual trauma, told legislators that, at the practical level, VHA was operating in a way that encompasses that provision. 

“As a national office, if asked for guidance on that issue, we would say that technology might be the [avenue] through which sexual harassment is occurring and our authorization already includes the ability to provide care for sexual harassment regardless of the means,” she said. 

As for expanding MST claims to include other mental health conditions beyond PTSD, VA officials testified that combined with the change in evidence requirements, it could cost VA as much as $10 billion over 10 years due to an increase in veterans making claims.

Legislators supporting the bill were skeptical of that price tag but said it would be worth the cost to provide benefits and care for MST survivors.

This disagreement between legislators and VA on how to provide better support for MST survivors comes less than a year after a VA Inspector General report found that VA had incorrectly processed nearly half of the MST claims it had denied during a six-month period in 2017. The most common errors in processing were not requesting a medical exam when it was warranted, and staff not requested a veteran’s private healthcare records or their full military personnel file. 

VA officials said they were reevaluating those denied claims—approximately 1,300 claims in all—and working to better train claims processors to ensure such lapses did not happen again. 

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