Submission For The Record of National Organization of Veterans Advocates
The National Organization of Veterans' Advocates, Inc. (NOVA) thanks Committee Chairman Runyan and Ranking Member Titus for the opportunity to testify on H.R. 671, to amend title 38, United States Code, to improve the disability compensation evaluation procedure of the Secretary of Veterans Affairs for veterans with mental health conditions related to military sexual trauma (MST), and for other purposes. NOVA is honored to share our views on H.R. 671, cited as the Ruth Moore Act of 2013, for this hearing.
NOVA is a not for profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993. NOVA represents nearly 500 attorneys and agents assisting tens of thousands of our nation's military Veterans, their widows, and their families obtain benefits from VA. NOVA members represent Veterans before all levels of VA’s disability claim process. This includes the Veterans Benefits Administration (VBA), the Board of Veterans’ Appeals (BVA or Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court or CAVC), and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In 2000, the CAVC recognized NOVA's work on behalf of Veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award.
1. Necessity of the legislation
Post-traumatic stress disorder (PTSD) cases have posed significant problems for the Department of Veterans Affairs (VA) because this disability, by its nature, often has a delayed onset. Consequently, the precipitating events are often unrecorded in a service member’s medical records or in-service department records. This is particularly true for incidents of sexual assault while on active duty. In 2011, the Pentagon estimated that about 19,000 male and female service members were sexually assaulted, yet less than 14 percent of these crimes were reported.
As with any assault case, the victims of in-service personal assaults are afraid to report the crime. This fear is especially likely when the assailant is a superior: the person to whom the victim is instructed to report in these situations. Reporting an assault while on active duty, however, is problematic for many reasons, even when the assailant is not the victim’s superior. The nature of military service discourages reporting both implicitly as well as explicitly. Even when the service member does make a report of the assault, these reports are rarely documented or associated with the veteran’s service records.
The number of veterans who have experienced an in-service personal assault is high. Among the veterans who use VA health care, over 20 percent of female veterans report being sexually assaulted while in service. See http://www.ptsd.va.gov/public/pages/how-common-is-ptsd.asp. Additionally, over 50 percent of female veterans and over 35 percent of male veterans report experiencing sexual harassment in the military. Id.
Effectiveness of Current Regulation
The current PTSD regulation, as it pertains to in-service personal assault cases, is not effective. 38 C.F.R. 3.303(f) (5) purports to reduce the burden for these veterans to prove their claims. In practice, this has not happened. From 2008 to 2010, VA approved over 50 percent of PTSD claims related to combat, but approved barely 35 percent of PTSD claims related to in-service personal assault. Ironically, VA concluded that it had made it too difficult for combat veterans to prove that their PTSD was related to service and, as a result, reduced the burden on them to show that their PTSD should be service connected. Unfortunately, VA has not attempted to help in-service personal assault victims in a similar manner, even though the approvals for in-service personal assault are significantly lower than those for combat veterans.
Recently, two significant changes have occurred: first, the acceptance of a resulting psychiatric disability from trauma; second, the adoption of VA regulations which impose an often insurmountable burden on the victims of sexual assault. The taboo and misgivings that accompanied PTSD and other mental disabilities that result from trauma have disappeared. Turning to the burden created by VA regulation, the proposed amendment to 38 U.S.C. § 1154 removes that impediment. Victims of sexual assault should not have the burden of corroborating their in-service sexual assaults. Proving that these events occurred is not merely painful, it is often impossible. The proposed amendment correctly makes the determination of entitlement to service-connected compensation for the resulting disability from the in-service trauma a medical question, not a factual one. This legislation further makes the appropriate public policy determination that victims of sexual assault should be entitled to compensation when a competent mental health professional confirms the existence of a current disability from PTSD. The legislation also confirms the relationship of that disability to the reported in-service sexual assault. Importantly, this legislation relieves the victims of sexual assault from being victimized further by an adjudication process which implicitly questions the veracity of the reported in-service assault.
2. Alleviating the VA’s backlog
Processing in-service personal assault claims is a slow and time-consuming process. These claims require VA to make extra efforts to contact the veteran and fulfill the VA’s duty to assist. Before one of these claims can be decided, VA has to contact the veteran multiple times to make sure that the veteran understands the special rules that apply to these claims and the different types of evidence that the veteran can supply. Furthermore, the adjudicator must request and attempt to obtain not just the veteran’s service medical records, but also the veteran’s full service record jacket. This can require multiple requests to the National Personnel Records Center. Still, 65 percent of these claims are denied.
Ruth Moore’s case is the quintessence of how these claims drag on and slow down the system. Moore had to fight VA for 23 years over her benefits –23 years of claims that did not go anywhere. All the while, she was suffering from depression and a sexually transmitted disease that she contracted from her attacker. Moore even had the benefit of the relaxed requirements of 38 C.F.R. 3.304(f) (5), yet it was not until 2009 that VA finally awarded her claim.
With the proposed legislation, these cases would be streamlined. The fulcrum would shift from wasting time and effort to navigate a paper chase to obtaining a medical opinion to determine whether the veteran’s disabilities are related to military sexual trauma (MST). At a time when the VA’s resources are scarce, this legislation would alleviate some of the backlog.
The vast majority of sexual assaults in the military are not reported, and even those that are reported are often not prosecuted. As a result, many survivors of MST have found it hard to prove that an assault—the stressor—occurred. Furthermore, current VA policy allows so-called "secondary markers" to be considered as evidence of an assault, although VA has been very inconsistent in applying that policy. Secondary markers can include evidence from rape kits, statements from family members citing a change in behavior since military service, and drug and alcohol abuse. In 2010, VA policy for combat veterans applying for disability payments was changed in a similar fashion, allowing lay testimony as evidence that a trauma such as exposure to a roadside bomb or mortar attack had occurred.
H.R. 671 would allow as sufficient proof of service-connection a diagnosis of a mental health condition by a mental health professional together with satisfactory lay or other evidence of MST and an opinion by the mental health professional that the covered mental health condition and the MST are indeed related. By allowing the veteran's lay testimony alone to establish the occurrence of the claimed MST, this Act brings affected veterans one step closer to receiving the benefits they deserve for a covered mental health condition incurred or aggravated by military sexual assault. By further resolving every reasonable doubt in favor of the Veteran, H.R. 671 effectively serves to eliminate further victimization of those who have already suffered enough.
As always, NOVA stands ready to assist the Committee or VA in whatever way possible to further eliminate the systemic issues that negatively affect the lives of our Veterans and their families.
We thank you for this opportunity to provide our testimony.