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Military Sexual Assault Survivors, VA Rejects Proposal

VA Rejects Proposal to End Discrimination Against Military Sexual Assault Survivors

July 29, 2014

WASHINGTON, DC—Today, Service Women’s Action Network (SWAN) and Vietnam Veterans of America (VVA) sued the U.S. Department of Veterans Affairs (VA) for denying their petition for rulemaking to change regulations that discriminate against thousands of veterans suffering from Post-Traumatic Stress Disorder (PTSD) caused by rape, sexual assault, or harassment during military service. The lawsuit aims to end gender disparities and discriminatory policies at the VA which the organizations believe are a violation of equal protection under the law.

Veterans who experience physical, mental, and or emotional struggles related to their service are entitled to seek disability compensation from the VA. The most common mental health condition Military Sexual Trauma (MST) survivors experience is PTSD. The majority of MST-related PTSD claims are submitted by women. Currently, the VA refuses to accept MST survivors’ lay testimony alone to establish eligibility for compensation. As a result, the VA continues to deny MST-related disability compensation claims at a significantly higher rate than non-MST-related claims.

“VA is doing everything it can to deny compensation to veterans impacted by sexual assault and sexual harassment,” said Anu Bhagwati, Service Women’s Action Network executive director and former Marine Corps Captain. “Over several years, we’ve gathered startling evidence that VA has been systematically discriminating against veterans applying for benefits based on Military Sexual Trauma.” SWAN and the American Civil Liberties Union collected data from VA through litigation and various Freedom of Information Act requests and found many discrepancies in approval rates between MST and other PTSD-related claims. From 2009 to 2012, MST-related PTSD claims were approved 16 to 30% less frequently than other PTSD claims. The VA had refused to share these data prior to action taken by SWAN, ACLU and Yale.

The VA has previously admitted problems with evidentiary standards for MST-related claims, but maintains that its current policies provide accurate and fair adjudication. However, the existing rules discriminate on the basis of gender, against both women and men. “The VA’s current discriminatory policies leave thousands of Military Sexual Trauma survivors, both male and female, without the benefits that would aid in their ongoing recovery,” said Dr. Tom Berger, a former Navy Corpsman and Executive Director of the Veterans Health Council at VVA. “The VA knows the current process places a higher evidentiary burden on survivors of military sexual harassment and assault than veterans with non-MST-related claims, but still refuses to act.”

On June 27, 2013, SWAN and VVA submitted a petition for rulemaking to the VA pursuant to the Administrative Procedure Act. The petition sought to end this discriminatory treatment and eliminate the barriers that exist specifically for MST survivors seeking compensation. When the VA ignored it, the groups filed suit to force the agency to act. On July 14, 2014 the VA rejected the rulemaking petition. SWAN and VVA have now filed a second lawsuit to obtain judicial review of the VA’s refusal to revise its discriminatory rules.
In the lawsuit filed this morning, SWAN and VVA argue that the VA “arbitrarily and capriciously” denied their petition in violation of the Administrative Procedure Act. They also argue that the current VA rules unconstitutionally discriminate against service members based on gender.

“The current VA policies require MST survivors to re-live their trauma repeatedly, and then do not allow that testimony to be sufficient to establish a service-connection,” said Greg Jacob, SWAN’s policy director and a former Marine Corps infantry officer. “This sends a message to the survivor that the VA does not believe them, and as a result becomes a secondary betrayal—once by a fellow serviceperson, and again by the VA denying their claim.”

“The VA contends that the changes it has made help put MST survivors on equal footing with veterans filing other claims. But these measures have not changed the VA’s discriminatory policies.” said Yunsieg Kim, a Law Student Intern at the Veterans Legal Services Clinic at Yale Law School, which represents SWAN and VVA in this petition. “We hope this lawsuit will ensure MST survivors are no longer discriminated against.”

ENDS

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