Veteran Disability Benefits: Military Sexual Trauma and the Victim's Credibility, Part 1.

You can read Part 2 of this post by clicking here. In researching a legal issue for a potential client, I came across the following decision of the Court of Appeals for Veterans’ Claims (CAVC).  The CAVC reversed the decision of the Board of Veterans Appeals (BVA), which had refused - twice - to find service-connection for a female soldier's military sexual trauma (MST). [As an aside, the VA has taken to calling military sexual traumas "personal assaults".  This term, in my opinion, so incredibly diminishes the sexual assault, rape, sodomy, and its resulting personal, emotional, mental, financial and professional harms.  My operating theory for this is that, like most bureaucracies, the VA needs to find mechanical language to describe a human situation - otherwise, they could not justify ignoring the serious and substantial harm that results from rape, sexual assault, gang rape and sodomy in the military. ] In any event, what struck me in the CAVC's decision was this quote of language from the BVA opinion below: "[T]he veteran has provided testimony under oath regarding her family history as well as her education and work history, which are in direct conflict with information she provided to her health care providers. Either what she stated to the undersigned and during her RO hearing (no alcoholism in the family and no alcohol permitted in her family) was not true, or the information she provided to her health care providers regarding alcoholism in the family was not true. They cannot possibly have all been true. It is the Board's belief that there was indeed a family history of alcoholism and she denied this under oath in an attempt to bolster her claim that there was a change in her behavior (alcoholism) which was caused by inservice trauma. Given her conflicting statements, and especially since she denied, under oath, having a family history of alcohol, the Board finds her not to be credible...." Without knowing anything about this case, can you see what the BVA "Judge" has done?  He (or she) has used different statements from a Veteran about a rather irrelevant piece of information - her family's history with alcohol - to totally destroy the Veteran's credibility on the issue of whether or not she was gang-raped after baby-sitting for officers in her chain of command.  Who of you reading this blog entry believe that a statement about your family's alcohol history has any bearing on whether or not you are telling the truth about being gang-raped in the military?  And since when did the BVA become the "decider" and "determiner" of when there is or is not a history of alcoholism in a Veteran's family? Having seen many, many legal cases and custody lawsuits involving sexual assault of minor children, it is my opinion that the "blame the victim" approach not only yields the wrong result in the law, but often suggests quite a bit about the person blaming the victim than the victim themselves.   That's all I will say about that. The result of this type of nonsense, over time, creates the scenario where Veterans do not report or seek compensation for the in-service rape, sodomy, gang-rape, or other type of sexual assault they have suffered through.  The Veteran feels that they have to be "the perfect witness".  And to some extent, the BVA currently tries to hold them to the "perfect witness" standard. (The above-quoted BVA Decision was 2008). It is very important that the Veteran who is going to file a VA disability claim for a mental or physical condition connected to an in-service military sexual trauma realize one thing before filing the claim: The VA Regional Office and the BVA are going to dig through your record  to find something - anything - wrong with your story and deny you.  If you have no police report, it's easy.  If you have a police report, they will come after your personal and family life (drug or alcohol use, for example).   If you smoked marijuana two years before joining the service, then you are a pot-smoker and can't be trusted. You get the idea.  They are not doing it to you personally - it is a failing of the system that we cannot admit that our military has the same problems as all militaries through history - rape, gang rape, and sodomy of men and women in uniform. Having said that, this is even more important:  There are ways to prevent this kind of "credibility" attack. There are ways to rehabilitate a witness who a BVA fact-finder may believe is not credible.  You do not have to be the perfect person, or the perfect witness, to succeed in claiming VA disability compensation for the physical and mental conditions that result from an in-service rape, gang-rape, sodomy, or other sexual assault. Have an attorney with real trial experience look at your VA disability claim.  Though the VA disability claims process is not a trial setting; I believe that having an honest-to-goodness trial lawyer look at your claim is important because we - trial lawyers, that is - know that legal credibility can make or break a case.  We know how to find ways to rehabilitate a witness whose credibility might be deficient, and we know when a witnesses credibility can't be rehabilitated.  We know how to tell the story differently so that the jury (at least in trial), sees the facts used to assess credibility in a different light.  In the example, above, I may not have allowed my client to testify in front of the BVA fact-finder; there might have been indications in the prior BVA decision that the fact-finder wasn't going to decide for the Veteran. The bottom line is this - if you are seeking compensation in a VA disability claim for the mental or physical conditions that result from a rape, gang-rape, sodomy, or other type of sexual assault while in military service, find an advocate that you trust - it doesn't matter to me who it is: VSO, attorney, or otherwise.  Just make sure it is someone you trust to not only tell your story, but try to prevent the BVA fact-finder from using the mis-steps of your past as ammunition against you.    In these types of cases, more than any other type, the Veteran needs a voice to tell their story -  a voice other than their own. The Attig Law Firm represents U.S. Veterans who have been denied  benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional OfficeBoard of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA. No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans.  The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog. It is very important that we note that each and every Veteran's claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you.   In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case. It is best to consult with a lawyer familiar with VA Disability claims to examine your particular case.  If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appealscontact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney. VA Disability attorneys at the Attig Law Firm, PLLC, represent Veterans in their  VA Disability Claims not only in Texas, Arkansas, & Oklahoma, but in VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation from the Department of Veterans Affairs.

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