Witness Testimony of Ms. Joy Ilem, Deputy National Legislative Director, Disabled American Veterans
Messrs. Chairman and Members of the Subcommittee:
Thank you for inviting the Disabled American Veterans (DAV) to testify at this oversight hearing focused on the process and procedure involved in veterans’ obtaining disability compensation benefits for post-traumatic stress disorder (PTSD) associated with military sexual trauma (MST), specifically on the types of evidence that may be submitted to substantiate a claim related to MST, and an exploration of ideas that may improve the evaluations of these claims.
For a number of years, DAV has advocated greater collaboration between offices of the Department of Veterans Affairs (VA) and the Department of Defense (DoD) to address conditions related to MST and to identify better ways to treat and properly compensate veterans for those conditions. We also continue to express a fervent hope that DoD is effectively addressing methods to prevent the incidence of sexual assaults and harassment within all branches of the military services.
This topic is obviously extremely sensitive to many service members, veterans and the respective Departments that are responsible for the safety and well-being of service members and veterans. When a service member is wounded by enemy rifle fire or mortar shrapnel in engagement with an enemy, as a society we recognize the sacrifice and loss of our wounded military personnel, but when a military service member is wounded by personal or sexual violence, often perpetrated by a fellow service member, military authorities and society in general respond in a very different way.
The continued prevalence of sexual assault in the military is alarming and has been the object of numerous military reports, Congressional hearings, documentaries and media coverage. Unfortunately, recent media reports do not lend confidence that DoD is succeeding in its goal of reducing and eliminating this scourge; however, it appears from recent developments that the Secretary of Defense has determined to address MST in a new and enlightened manner compared to the past. He announced the establishment of independent special victims units to investigate incidents of MST in the military ranks. He also indicated DoD will address some of its historic problems in archiving records associated with the incidence of MST.
In 2005, the DoD established the Sexual Assault Prevention and Response Office (SAPRO). Thisorganization is responsible for all DoD sexual assault policy and provides oversight to ensure that each of the military service’s programs complies with DoD policy. SAPRO serves as the single point of accountability and oversight for sexual assault policy, provides guidance to the DoD components, and facilitates the resolution of issues common to all military services and joint commands. The objectives of DoD’s SAPRO policy are to specifically enhance and improve prevention through training and education programs, ensure treatment and support of victims, and enhance system accountability.
According to SAPRO, in 2011 reports of sexual assault were filed by 3,192 service members across all military service branches, a 1% increase over 2010 and a 1.1% decrease from 2009. However, DoD recognizes that these types of crimes are remarkably under-reported. For last year, DoD projected a more accurate number, likely closer to 19,000 assaults, based on its bi-annual Workplace and Gender Relations Survey of Active Duty Members (WGRA).
VA data bears out the significant reports of MST. According to VA, during fiscal year 2009, 21.9 percent of women and 1.1 percent of men screened by the Veterans Health Administration (VHA) reported that they had experienced an in service stressful MST event. Another VA study found that of 125,000 enrolled veterans screened, about 15 percent of women veterans from Operations Iraqi and Enduring Freedom reported experiencing sexual assaults or harassment during military service. VA research also indicates that men and women who report sexual assault or harassment during military service were more likely to be diagnosed with a mental health condition. Women with MST had a 59 percent higher risk for mental health problems; the risk among men was slightly lower, at 40 percent. The most common conditions linked to MST were depression, PTSD, anxiety, adjustment disorder, and substance-use disorder.
The complaints we hear from veterans regarding MST are primarily focused on the VBA disability claims process. Many survivors indicate that they are frustrated with the process particularly in cases when the sexual assault was not officially reported. They express a feeling of being “re-traumatized” in their efforts to get help from VBA even when they have provided significant evidence; statements from witnesses, friends or family; a detailed account of the incident; along with a diagnosis and extensive treatment records from a VA or non-VA mental health provider—only to have the claim for service-connection denied.
Unfortunately, many service members who experience these types of traumas do not disclose them to anyone until many years after the fact but frequently experience lingering physical, emotional or psychological symptoms following these incidents. When a service member experiences sexual assault during military service there are a number of complicating factors that often prevent or discourage survivors from coming forward and reporting the incident to their superiors. Fear of retribution within the military unit structure; the perpetrator is their superior or a friend of the superior to whom they must report; and negative impact on military career are just a few reported barriers to coming forward and reporting such incidents. Traditional military culture and the military’s closed system for reporting, investigating and prosecuting these types of crimes also constitute barriers against reporting such incidents. Despite DoD’s “zero-tolerance” policy, reports continue to document these incidents. Not only is there stigma, shame, guilt, and feelings of isolation associated with sexual assault in general, to add insult to injury, in some cases, these incidents are not being properly addressed as mandated by policy through the chain of command. Perpetrators often are not punished.
On their discharge from military service many survivors of MST end up seeking health care and mental health counseling services for MST from the VA health care system. Under a current Veterans Health Administration (VHA) policy, all patients are screened for MST and receive medically necessary treatment and counseling without charge for MST-related conditions at VA health care facilities and in VA Vet Centers. Service connection or disability compensation is not required for eligibility to gain access to this treatment.
Establishing a veteran’s service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor.
According to current VBA policy, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran’s service records may corroborate a veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis or mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Additionally, evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavioral changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes (title 38 C.F.R. § 3.304(f)(5).)
Also noteworthy, VBA’s policy prohibits the denial of claims for service connection for PTSD based on in-service personal assault without a rater’s first advising the veteran claimant that information from sources other than the veterans’ service records or evidence of behavior changes may constitute credible evidence of the stressor and allowing the veteran an opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Finally, the regulation provides that VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
Unfortunately, even with the liberalization of the regulations, if an assault is not officially reported during military service, establishing service connection later for conditions related to MST can be very challenging. According to an Institute of Medicine (IOM) National Research Council report on PTSD compensation in 2007, significant barriers prevent women from being able to independently substantiate their experiences of MST, especially in combat arenas. The IOM report concluded that little research exists on the subject of PTSD compensation and women veterans and noted that available information suggests that women veterans are less likely to receive service connection for PTSD and that this gap is related to their being unable to substantiate non-combat traumatic stressors such as MST. The committee stated that VA guidance for rating these cases at that time addressed MST specifically, but that little attention was being paid to the unique challenges of documenting an in-service stressor or approaches for solving this problem. DAV is pleased to report that the Veterans Benefits Administration has made numerous improvements in adjudication policies on MST since that report was filed.
In May 2010, VBA officials testified that all rating specialists in VA regional offices were provided with detailed information on proper claims processing methods in a 2005 training letter, in an effort to ensure that veterans who filed claims associated with MST received fair and thorough consideration of those claims. Following the joint hearing on May 20, 2010, VBA responded to DAV’s request to include SAPRO information in its M-21-1MR, Part IV, Subpart ii, Chapter 1, Section D for these types of claims. In December 2011, VBA amended its guidance to VA rating specialists, expanding requirements for raters examining personal trauma cases based on MST, including using SAPRO as a source for possible documentation.
We appreciate these specific changes made by VBA, including the information about SAPRO, but DAV remains concerned about how many claims may have been denied prior to that information being included in the manual or on faulty application of the existing regulations.
In preparing for this hearing we contacted VBA officials, through our National Service Officer (NSO) Corps, to see what references are currently being used by rating specialists/adjudicators in developing PTSD claims based on MST. A document associated with a December 2011 “Fast Letter” provides very detailed and comprehensive guidance regarding these claims to include: pertinent regulations; statutory definition of MST; related court decisions; specific “markers” to examine in veterans’ records; timing for ordering a PTSD examination; and proper development actions to be taken prior to a decision being rendered in the case.
Most notably in the document we found a number of clear examples and statements to raters emphasizing the fact that a special obligation exists on VA’s part to assist claimants in gathering, from sources other than in-service records, evidence corroborating an in-service stressor and to help fully develop their claims particularly in MST cases given the unique problems of documenting personal-assault claims. The instructions are concise—that evidentiary development must proceed under the special requirements of title 38, C.F.R., § 3.304(f)(5) and that a veteran’s complete military record should be obtained if necessary, and reasonable efforts expended to obtain any other evidence a veteran may identify as a potential source to support the claim. The document goes on to explain the purpose of the liberalizing categories in the regulation is to recognize the difficulties inherent in establishing service-connection for PTSD claims based on MST and other personal assaults and to provide the basis for a relaxed evidentiary standard and a liberal approach to evaluation of these claims.
The most salient feature made in the Fast Letter’s attachment is to emphasize that current regulations and court cases do not require actual documentation of the claimed stressor, and that the opinion of a qualified mental health clinician is considered credible supporting evidence of the claimed MST stressor. Nevertheless, the letter notes that the final decision on service connection remains with VBA raters.
To DAV, the question at hand for this Subcommittee is whether VBA adjudicators and rating specialists who are responsible for developing and rating MST claims are using all the amended provisions in M21-1 and following those prescribed VBA-wide guidelines in the Code of Federal Regulations to assist veterans in uncovering potential evidence that may be available to support their claims, even if unreported. In cases where veterans indicated that no official report of assaults were filed, VA adjudicators should be asking veterans detailed questions or considering stressor statements provided by veterans to determine if other reports could have documented these events (such as calls or visits to rape crisis centers or mental health counseling centers; requests for pregnancy tests or tests for sexually transmitted diseases; statements in personal diaries or letters to clergy or family members immediately following personal assaults).
In our view, if a veteran indicates an assault took place on a specific date(s), he or she should be asked about subsequent treatment for any health or mental health problems following the sexual assault, i.e., complaints of stomach pain; nausea; vomiting; headaches; anxiety; panic attacks; depression; or suicidal ideation, etc. Rating specialists should be examining military personnel records for requests for transfer filed by individuals following assault to another duty assignment; a deterioration in work performance noted; or documentation of a sudden onset of substance abuse or other unexplained social or behavioral changes. The M21-1 guidance lists additional options to assist VBA claims developers but it unclear whether these efforts are consistently and exhaustively being made. DAV asks this Subcommittee to require VBA to examine compliance with this guidance system-wide and submit a report of its findings to aid the Subcommittee in its oversight role.
We bring one more issue to the Subcommittee’s attention on this topic. Under DoD’s confidentiality policy, military victims of sexual assault have two reporting options, “restricted” reporting and “unrestricted” reporting. Restricted reporting allows a sexual assault victim to confidentially disclose the details of the assault to specified individuals and receive medical treatment and counseling, without triggering any official criminal or civil investigative process. Despite the progress on the VA’s part to include SAPRO information in its M21-1 manual, to maintain confidentiality in the case of restricted reporting, DoD policy prevents release of MST-related records with limited exceptions. However, VA is not specifically identified as an “exception” for release of records in DoD’s policy and it is unclear if VA could gain access to these records even with permission of the veteran. One of DAV’s primary concerns is that VA be able to access restricted DoD records (with the veterans’ permission) documenting reports of MST for an indeterminate period. To establish service connection for PTSD there must be credible evidence to support a veteran’s assertion that the stressful event actually occurred. Restricted records are highly credible resources but it is questionable if they are readily available, even with the consent of the veteran. With the veteran’s authorization, we believe DoD should provide VA adjudicators access to all MST records, whether restricted or unrestricted, to aid VBA in adjudicating these cases.
We also have questions with respect to where and how physical assessment records that are completed following assaults and subsequent mental health treatment records related to the restricted MST reports are kept and for how long. We are concerned that these records are being maintained separately from victimized service members’ medical treatment and personnel records and whether each service maintains MST records in a consistent manner. According to DoD policy physical evidence associated with a restricted report of an MST event is destroyed after one year if the service member or veteran does not wish to pursue civil or criminal sanctions against the perpetrator. Legislation is pending in the Senate that would extend this period of records retention for restricted MST records to five years. DAV supports an extension of this period to 50 years, matching the current DoD policy on retention of unrestricted records of sexual assaults.
DAV NSOs continue to assist MST victims with their claims for disability compensation. In this work, however, our NSOs are frustrated at the routine occurrence that MST claims are denied by VA for lack of evidentiary documentation. This suggests that, in some cases, VBA rating specialists are not following current policy as detailed in this statement. For these reasons and more, it seems to DAV that the agencies that are responsible for monitoring and reporting on MST, and providing benefits and services to survivors of MST, as well as preventing the problem at its source, should work in concert to lower the burden of this claims process and ensure service members and veterans are fully assisted by the government and their advocates in securing the benefits they deserve and have earned. In recent days we are advised that more collaboration is now occurring between leaders of VBA and SAPRO, but we await the results of these efforts, especially in relation to records keeping, archiving and accessing MST documentation.
Additionally, we urge VBA to identify and map claims related to personal trauma with a focus on MST to determine the number of claims submitted annually, their award rates, denial rates, and the conditions most frequently associated with these claims. We believe this type of reporting would be helpful to the Subcommittee in its oversight role. Therefore, DAV renews our request that VBA develop this important data-set and make it public. Finally, VBA is responsible for ensuring that its claims staffs are properly trained and compliant with the procedures and policies outlined in this testimony to assist veterans in producing fully developed claims; therefore, VBA should conduct its own oversight to review these claims to ensure the directives that have been issued are in fact being followed.
Mr. Chairman, again DAV thanks you for the opportunity to share our views at this important hearing focused on MST related disability claims. We strongly believe that survivors of sexual assault during military service deserve recognition, assistance in developing their claims and compensation for any residual conditions found related to the assault. DAV believes these cases need and deserve special attention. Because of the circumstances of these injuries, victimized individuals who have come forward are courageous, and their courage needs to be recognized by the government.
In the past decade, progress has been made on this issue; however, more needs to be done to ensure that these disabled veterans are properly compensated for conditions related to MST on an equitable basis in comparison to veterans disabled by other causes. We continue to hope hearings of this nature can not only help heal these deep wounds that are often invisible but have profoundly changed the lives of those affected, but also stimulate both Departments to improve their efforts to address them and the underlying causative factors.
Establishing service connection for a condition related to MST is important on a number of levels. Specifically, veterans with service connection gain improved access to VA health care. Disability compensation can also make a significant difference in a disabled veteran’s financial stability and overall health and well-being. Finally, and most importantly for many MST survivors, being rated service connected for mental and physical disabilities attributed to MST represents validation, connotes gratitude for their service to their country and recognizes the tribulations they endured while serving.
We appreciate the attention to these issues and hope the Subcommittee will consider the issues of concern and recommendations DAV has made today. I would be pleased to address your questions, or those of other Subcommittee members.
 Department of Defense Sexual Assault Prevention and Response, Annual Report on Sexual Assault in the Military, Fiscal Year 2011; April 2012. http://www.sapr.mil/media/pdf/reports/Department_of_Defense_Fiscal_Year_2011_Annual_Report_on_Sexual_Assault_in_the_Military.pdf
 US Dept of Veterans Affairs, VA Research Currents. November-December 2008. http://www.research.va.gov/resources/pubs/docs/va_research_currents_nov-dec_08.pdf
 Institute of Medicine and National Research Council of the National Academies, Committee on Veterans’ Compensation for PTSD, Board on Military and Veterans Health, Board on Behavioral, Cognitive, and Sensory Sciences; PTSD Compensation and Military Service. Washington DC, 2007.
 Bradley G. Mayes & Susan McCutcheon, RN, EdD; Joint Statement before the House Veterans Affairs Committee, Subcommittee on Disability Assistance and Memorial Affairs, “Healing the Wounds: Evaluating Military Sexual Trauma Issues,” May 20, 2010. http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=72876&Newsid=577&Name=%20Bradley%20G.%20Mayes