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Veterans Legal Services Clinic Files Lawsuit Seeking to End Discrimination Against Military Sex Assault Survivors

Working on behalf of the Service Women’s Action Network (SWAN) and Vietnam Veterans of America (VVA), Yale Law School’s Veterans Legal Services Clinic filed suit against the Department of Veterans Affairs (VA) Tuesday seeking to change rules that discriminate against tens of 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 argue are a violation of equal protection under the law.

Veterans who experience disabilities related to their service are entitled to seek benefits compensation from the VA. PTSD is the most common mental health condition experienced by survivors of Military Sexual Trauma (MST). The majority of MST-related PTSD claims are submitted by women, according to the lawsuit. 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 other PTSD claims, according to the lawsuit.
“Now it will be for the court, not the VA, to decide whether arbitrary and discriminatory treatment of sexual assault survivors is justified under the law.” - Yunsieg Kim ’16

“VA has a long history of denying critical benefits to veterans suffering from the trauma of 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.”

Represented in previous litigation by the clinic, SWAN, the American Civil Liberties Union Womens’ Rights Project and the ACLU of Connecticut collected data through Freedom of Information Act lawsuits that revealed many discrepancies in approval rates between MST and other PTSD-related claims. VA data showed that from 2009 to 2012, the annual grant rate for MST-related PTSD claims lagged behind the rate of other PTSD claims by 16.5 to 29.6 percentage points, according to a report authored by clinic students for all three groups. The VA had refused to share these data prior to litigation brought by the clinic on behalf of SWAN and the ACLU.

“Veterans Benefits Administration (VBA) MST rules discriminate on the basis of gender against men and women in a number of ways. MST survivors must be placed on equal footing with other veterans seeking disability compensation because VBA cannot continue to turn a blind eye to the terrible harms our service women, and men, are suffering from this discrimination,” 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, the clinic submitted a petition for rulemaking to the VA pursuant to the Administrative Procedure Act, on behalf of SWAN and VVA. 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 clinic represented the groups in filing 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 this latest lawsuit, SWAN and VVA argue that the VA arbitrarily and capriciously denied their petition in violation of the Administrative Procedure Act and that the current VA rules unconstitutionally discriminate against service members based on gender.

News Clips
WNPR - Veterans Sue VA Over Disability Claims Process
MSNBC - Veterans Groups Sue VA Over Sexual Assault Claims
Navy Times - Groups Sue VA Over Rules on PTSD Claims for Sexual Trauma

“The VA contends that its retraining and other internal management policies are adequate to redress the agency’s well-known problems with MST claims, but disabled veterans who have sought assistance know otherwise,” said Yunsieg Kim ’16, a law student intern at the Veterans Legal Services Clinic at Yale Law School, which represents SWAN and VVA in this lawsuit. “Now it will be for the court, not the VA, to decide whether arbitrary and discriminatory treatment of sexual assault survivors is justified under the law.”

“The current VA policies require MST survivors to re-live their assault 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 assault—once by a fellow serviceperson, and again by the VA denying their claim.”

A copy of today's filing can be found here.

The original Petition for Rulemaking can be found here.