VETERANS DISABILITY BENEFITS: Military Sexual Trauma and Credibility, Part 2By Chris Attig | Permalink
November 14th in Military Sexual Trauma, VA Benefits.
You can read Part 1 of this post by clicking here.
Another scenario for you to think about – this is from a January 2010 BVA Decision:
Veteran serves on Active Duty from February 1980 to February 1983, and in the National Guard from 1983 to 1988. Claiming service connection for a variety of mental health conditions, in part stemming from Military Sexual Trauma. Here is what the Hearing Official at the BVA wrote:
“The medical evidence is filled with references to symptoms, traits, and incidents that damage the Veteran’s credibility. The December 1987 VA hospital records note in part that Veteran had paranoid features with a general mistrust for others and hypersensitivity. He also had impaired judgment and a potential for antisocial behavior. VA treatment records from November 1988 note that the Veteran was experiencing hallucinations. September 1991 records say that the Veteran’s statements about his supervisor in the National Guard had a paranoid flavor but go on to speculate that it was possible the Veteran was discriminated against. In an October 1992 psychiatric assessment, he not only complained that his supervisor was out to get him, but also indicated that someone had used voodoo on him, and that his girlfriend had given him poison so that she could control him. November 1992 records note past diagnoses of paranoid schizophrenia, and the Veteran admitted to suspicions he claimed he could prove. He was also noted to be obsessed with a claim of sexual harassment at a private company where he worked after leaving the National Guard. September 1997 psychological testing describes the Veteran as egocentric and impulsive, and state he was likely to experience episodes of suspiciousness, anxiety, and episodic psychotic features. July 1998 records contain diagnoses of polysubstance-induced depression with psychosis. More recent treatment records dating from 2004 to 2005 indicate that the Veteran continued to be treated for symptoms that included mild hallucinations and paranoia.
“Given the medical evidence that repeatedly shows symptoms of paranoia and hallucinations, as well as outlandish claims regarding voodoo and poisoning, and a history of repeatedly seeing sexual harassment even in events that occurred after discharge from service to the extent that it was categorized under obsessions by a medical professional, and given the complete lack of any other supporting evidence, the Board finds that the Veteran’s statements about his various incidents of sexual trauma and harassment are not credible. It follows that any medical opinions based on these assertions are of little probative value.
“The Board emphasizes at this point that this decision does not imply that the veteran is not sincere in his beliefs regarding what happened in service and in the Guard, and in the etiology of his psychiatric disabilities. The Board is not questioning the Veteran’s honesty, but instead finds that his symptoms impair his ability to know the truth. The Board also stresses that this is not a medical finding regarding the Veteran’s competency but is a legal finding pertaining to the Veteran’s capacity to tell the truth.”
Do you see what the author of this opinion has done? Without knowing anything more about this case, can you see how the author of this opinion has used the Veteran’s own medical conditions to discredit the Veteran?
Mental Health conditions that arose after the military sexual trauma are being used to attack the Veteran’s legal credibility. The BVA then attempts to make the self-serving statement that it is just a “legal credibility finding”. In fact, how can a Judge – without any medical evidence whatsoever to support this conclusion – conclude that medical symptoms impair one’s ability to know the truth?
A true legal credibility finding has little to do with medical conditions or medical symptoms. Here are some of the factors which are typically used in a legal credibility determination (this list is culled from my experience and other Courts and legal processes; I know of no BVA decision or CAVC decision which provides a list of “factors of credibility”). I know of no case that states that these are the only factors pertaining to credibility. However, one would be hard-pressed to find a credibility factor that doesn’t fit into this list. Caluza v. Brown, 7 Vet. App. 498, refers to a couple of these factors, specifically numbers 4 and 7 on my list. Caluza v. Brown, 7 Vet.App. 498.
1) Did the Witness have the opportunity and capacity to observe the event or act in question?
2) What is the Witness’s character? Is there any “habit” or “character” evidence which suggests a propensity for or against truth telling?
3) Are there any prior inconsistent statement by the witness? If so, have the prior inconsistent statements been adequately explained?
4) Does the witness have any bias – or equally important, the lack of bias – that would taint the witnesses’ testimony?
5) Is the Witness’s version of events consistent with the other versions of the events that other witnesses have shared? Is the Witnesses version of facts consistent with the other evidence of record?
6) Is the Witnesses’ version of events inherently probable or improbable?
7) What is the witness’s demeanor while testifying?
It is my sincere hope that the Veteran in the case referenced above has appealed this BVA decision – I know of no Court or law which allows a fact-finder to assess a Witnesses credibility by claiming that his mental health conditions preclude the witnesses ability to “know” the truth – at least without an expert medical opinion to that effect. This particularly decision, in my opinion, suggests more of the inherent prejudice in our legal system towards those with mental health conditions, and the inherent prejudice in the VA Benefits system against individuals that claim injury as the result of a military sexual trauma.
Bottom Line: if you are alleging that a Military Sexual Trauma (MST) is a causative factor in your current medical condition, then you do not need to be the Perfect Witness. What you may well need is an experienced advocate that can develop a strategy that will navigate the Veteran’s Claim process and its institutional predisposition to turn a blind eye to the Military Sexual Trauma that so many of our Veterans – male and female – have experienced.
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 Office, Board 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.
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It is best to consult with a lawyer familiar with VA Disability claims to examine your particular claim. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact 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.