Reforming VA’s Response to Military Sexual Trauma

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Agency undermines veterans’ ability to get disability benefits after suffering sexual assault.

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The dangers of war extend far beyond the battlefield. Hundreds of thousands of American soldiers suffer military sexual trauma from within their own ranks, leading them to experience serious mental health problems. But when these veterans apply for government benefits to treat their mental health conditions, they often do not receive support.

Responding to what he sees as the federal government’s mishandling of military sexual trauma claims, Yale Law School’s Michael Wishnie calls for veterans’ law reform in his paper.

According to Wishnie, up to a third of all women in the military suffer from rape during military service, and more than half a million veterans experience military sexual trauma. But despite this serious problem, veterans who suffer military sexual trauma during their time in service have difficulty meeting the far too stringent evidentiary requirements for receiving benefits.

Veterans who suffer from post-traumatic stress disorder (PTSD) can apply to the U.S. Department of Veterans Affairs (VA) for disability benefits, which would cover health care, disability compensation, and education. Wishnie notes that VA regulations, however, discriminate between PTSD-afflicted veterans who suffered from military sexual trauma and those who have experienced a different service-related stressor.

Under VA regulations sexually victimized applicants must present evidence, such as medical records, tests for sexually transmitted diseases, or statements from family members, to validate their applications. But applicants who suffer from different stressors, such as combat-related trauma, can rely on lay testimony evidence—that is, “any evidence not requiring that the proponent have specialized education, training, or experience,” according to VA regulations—to get benefits.

Wishnie argues that because of this discrepancy in evidentiary burdens, the VA denied two-thirds of applications premised on military sexual trauma between 2008 and 2010, and it granted almost twice as many PTSD applications premised on stressors other than military sexual trauma.

Moreover, because more women than men file the applications for benefits to address sexual trauma, the VA’s denial of PTSD applications disproportionately impacts women, forming “one of the most urgent civil rights struggles among veterans,” says Wishnie. He notes that, compared to veterans overall, for example, female veterans who suffered from military sexual trauma are more vulnerable to developing mental health problems.

In 2013, the Service Women’s Action Network and Vietnam Veterans of America, two veteran advocacy groups, pressed the VA secretary to implement regulations that would facilitate access to benefits. The groups argued for the “liberalization of the evidentiary standards” in cases of military sexual trauma. They claimed that the VA already used these standards “when confronted with other types of stressors, such as combat and prisoner-of-war experience, that are difficult to prove yet similarly linked to mental disabilities.”

The VA secretary rejected the groups’ rulemaking petition, arguing that current regulations already allow the introduction of a wide range of evidence in benefits applications.

The advocacy groups unsuccessfully challenged the secretary’s rejection in federal court. Because of the court’s deference to administrative interpretations of the law, it upheld the secretary’s authority to set the evidentiary standards.

In addition to the reasons offered by the VA secretary to oppose new regulations, scholars have argued that reform would likely cause financial problems for the agency. According to them, the VA would likely approve more benefits applications, spend a larger amount of money on the benefits system, and encourage potential fraud. But Wishnie disagrees. He states that the law’s commitment to gender equality and disability rights should undermine “the resource-based objection” raised by reform critics.

The prevalence of military sexual trauma among the military, the high evidentiary burdens faced by PTSD-afflicted applicants, and the VA’s refusal to address these problems are serious issues in need of change, Wishnie argues. Reforming veterans’ law now would thus prevent further suffering for returning soldiers.