ptsd Mst At Court Of Vet Appeals

[john999]

I was looking to see if any action had happened lately on my case at the Court of Vet Appeals. I saw that my lawyer is doing a case for a male vet who claims he was raped by his 1st Sgt. in 1969. The BVA denied his claim for PTSD in 2003 saying they only had his word for this MST. It is an interesting and shocking case. My lawyer is Karl Kazmierzak. It seems the rape ruined this kid's life and now he is an older man and still suffering. The victim says he was threatened if he did not keep his mouth shut. He claims the Sgt got him drunk at his house and then attacked him. His parents did say there was a drastic change in his behavior when he got out of the army. There are no SMR's to back up his claim. I wonder what his chances are? He has medical records from 2003 where he claims this happened to him. How do you win a claim almost 40 years after the fact based on only your word and the word of your parents? My lawyer took the case to court, so he must think there is a chance. I see the difficulty in MST if it is not reported and there is no medical exam.

[bobbyq]

Had a similar case USMC and took about three four years and found a NCIS report at Navy Shipyard in DC. Takes a lot of digging and a lot of time. Vet had been denied by VA and so on. This was a shooting during basic training

Edited May 26, 2011 by bobbyq

[Mcafee]

Hello All Hope All Is Well

There are so many undocumented MST of males in Service I am one of those as well.

Karl K is a good man and has a great team to address concerns for veterans.

You usally dont see this issue address because of embarassment and shame.

I shall we say the next day after my assult did address it with the individual whom attack me couple of black eyes.they did document the assult but no MP report.

It absouloutely asstounds me that regardless of your position in the military these items are not stopped even today it exists.

[carlie]

How do you win a claim almost 40 years after the fact based on only your word and the word of your parents? My lawyer took the case to court, so he must think there is a chance. I see the difficulty in MST if it is not reported and there is no medical exam.

John,

The above is what gets most claims for PTSD or other mental health diagnosis, due to active duty

MST denied.

There is a specific reg with instructions where the claimant can submit specific evidence

that the VBA is supposed to consider under an Alternative Evidence reg.

The specific Alternative Evidence is:

If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(3).

The problem with even having Alternative Evidence is inherit with the fact thatthe MST is not reported !Most MSTer's don't go to a doctor, clergy, a rape center, they don't confide in anyonedue to the feelings of fear, retribution,shame and guilt.

Many of them put so much energy into acting OK, as if nothing has happened, in orderto try and protect themselves.

I can only post this as I live/ed with this and know it first hand.

I did converse with my Godmother on the phone about it in 1978 - and even though she wrote and submitted a notarized statement to the VBA for one of my DRO Hearings in the mid 2000's and drove to my town and provided sworn testimony at one of my BVA Hearings in 2008/2009,

the adjudication decisions/SOC's and SSOC's have listed these two submissions for support in the Evidence Sections, neither of these have ever been shown as discussion in the Reasons and Bases Sections of any Decision.

[brokensoldier244th]

Dont Veteran lawyers get paid regardless? His taking the case doesn't necessarily mean it has a shot. I wouldn't think it would.

[john999]

Brokensoldier

I see your point and agree that the lawyer gets paid. However, is it worth the preperation the lawyer does in research, writing briefs and arguing the case if he thinks he will lose the case? How well does the government pay if their is no retro to divide?

[broncovet]

No, lawyers dont get paid, regardless of the outcome. This is largely a fallacy perpetuated by VSO's when they were trying to keep lawyers out of the VA.

While it is possible that a lawyer, if he gets a minimum of a remand, can get fees paid by EAJA. However, the last I heard is that with the cutbacks they are not awarding lawyer fees through EAJA, since these have to be approved by the courts. So, right now, it is highly unlikely that he would take the case unless he feels he can win you benefits.