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Case Law: Unreported MST

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My summary:   If you were a victim of military sexual assault, EVEN if it was not reported, you can still apply for benefits:  

My source:  BVA Chairmans Report, 2014, available here:




AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013): In this consolidated case, two Appellants originally filed claims for service connection for posttraumatic stress disorder (PTSD) alleged to have resulted from sexual assaults that occurred during service. The Board and the CAVC denied both claims, in part on the ground that the Veterans’ service records did not include reports of the alleged assaults, and because the Veterans stated that the assaults were never reported to the military authorities. The Federal Circuit vacated and remanded the CAVC decisions, holding that VA may not rely on a Veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. In reaching this decision, the Federal Circuit noted that by statute, VA is required to “consider all information and lay and medical evidence of record” in determining service connection, 38 U.S.C. § 5107(b), and that such medical and lay evidence be “pertinent,” see 38 U.S.C. § 1154(a). The Federal Circuit then noted that while the regulations governing the criteria for establishing service connection for a PTSD claim, and particularly those pertinent to a PTSD claim based on an “in-service personal assault,” identify the types of lay and medical evidence that must be considered, neither the statute nor any other VA regulation directly addresses the role that the absence of service records reporting the alleged assault should play in a disability determination. As a result, the Federal Circuit looked to other authorities, including the Federal Rules of Evidence 803(7) and case law from other courts, for the proposition that the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it been reported. The Federal Circuit then considered substantial sociological evidence, including studies by the Department of Defense and VA, to find that military sexual trauma is not normally reported. Accordingly, the Federal Circuit concluded that where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur. Also, VA may not treat a claimant’s failure to report an alleged sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. This case is significant because the Federal Circuit made it clear that it is unreasonable to presume that sexual assaults would be reported to superior officers or that there would be records of unreported assaults; therefore, such evidence is not pertinent that the assault did not occur and will change how VA analyzes this issue.


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Contact NavyNurse for MST discussion.

Even if your MSA was never officially reported, that in and of itself does not preclude an MST/PTSD Award. You'll still get a Forensic MSA/PTSD C & P Exam to establish a VA DX.

Your current & past MSA "Markers" will be reviewed as well as how your performance and personality changed after the alleged MSA. Any visits to nonmilitary clinics for possible STD Detection, post MSA Date would be great evidence, even if unreported at the time.

I assume you have already given the VA MSA/PTSD DSM V a good read, if not, you might want to do it now. The evidence necessary to get an Award is discussed in great detail for both documented and undocumented SMA Claims.

Semper Fi

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