Academic journal article Suffolk University Law Review

When Rape Isn't like Combat: The Disparity between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault

Academic journal article Suffolk University Law Review

When Rape Isn't like Combat: The Disparity between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault

Article excerpt

"It's very disconcerting to have somebody who is supposed to save your life, who has your back, turn on you and do something like that.... You don't want to believe it's real. You don't want to have to deal with it. The family doesn't want to deal with it. Society doesn't want to deal with it." (1)

I. INTRODUCTION

In the late 1990s, a disabled American veteran sought compensation. (2) His disability was physical, but his injury was not suffered on the battlefield. (3) His claim was denied. (4) The veteran, Frank L. Gallegos Jr., had been diagnosed with post-traumatic stress disorder (PTSD) caused by military sexual assault (MSA). (5) Gallegos' medical doctor corroborated his account and wrote, "[t]he symptoms [Gallegos] gives are quite consistent with a highly traumatized experience of sexual rape to a man." (6) Nevertheless, the United States Court of Appeals for Veterans Claims upheld the decision that Gallegos had not established a sufficient connection between his in-service rape and his PTSD. (7) Absent that connection, Gallegos could not receive benefits in the form of psychological care and a disability pension from the United States Department of Veterans Affairs (VA). (8)

The VA serves America's veterans and their families "in ensuring that they receive the care, support, and recognition they have earned in service to this nation." (9) Navigating the VA application process to obtain such care, support, and recognition presents unique challenges for veterans with mental illness, particularly those with PTSD. (10) One cause of PTSD is sexual assault, which is surprisingly pervasive in the United States armed forces. (11) In (2008), 3,018 sexual assaults involving United States armed forces service members were officially reported to unit commanders. (12)

When veterans develop PTSD caused by a sexual assault as a result of their military service, they are entitled to disability compensation. (13) The current regulatory framework imposes a higher evidentiary burden on those veterans seeking compensation for PTSD because of sexual assault than on those seeking compensation for PTSD caused by exposure to combat. (14) This higher burden, one that generally requires corroboration from outside sources, instead of the veteran's lay testimony alone, prevents victims with PTSD claims from receiving compensation. (15)

This Note begins by describing the process for seeking benefits as a disabled veteran in the United States. (16) It next examines how PTSD due to sexual assault is subject to a higher level of scrutiny in the benefit application process. (17) The Note then considers the prevalence of MSA in the armed forces and the veracity of victims' claims. (18) It goes on to describe the clinical connection between MSA and PTSD. (19) Lastly, it catalogs the obstacles to successful disability claims that the veterans disability application process presents. (20)

This Note then analyzes the application process and suggests areas for improvement. (21) Continued vigilance is necessary to abandon the outmoded stereotypes of sexual assault and this Note commends the Department of Defense (DOD) for taking important steps to that end. (22) Unifying the veterans' disability application process would provide fair and equal treatment of PTSD claims regardless of cause. (23) The fact-finding process within the Board of Veterans' Appeals (BVA) should be reformed to ensure the Board does not delegate its fact-finding responsibilities to the medical professionals it turns to for evidence. (24) Finally, the contemporaneous proof requirement bars PTSD claims with an otherwise sound clinical basis--a profile that fits many claims based on MSA--and federal regulations should acknowledge this fact. (25)

II. HISTORY

A. Seeking Compensation as a Disabled Veteran in America

As part of its mission, the VA provides compensation to any veteran who is at least 10% disabled as a result of military service. …

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