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Press Release

July 28, 2014

No. 14-16

Mokie Porter
301-585-4000, Ext. 146

VA Rejects Proposal to End Discrimination Against
Military Sexual Assault Survivors

VVA, SWAN File Suit

(WASHINGTON, DC)—Today, Vietnam Veterans of America (VVA) and Service Women’s Action Network (SWAN) sued the U.S. Department of Veterans Affairs (VA) for denying their petition for rulemaking to change regulations that discriminate against 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 physical, mental, or emotional struggles related to their service are entitled to seek disability compensation from the VA. The most common mental-health condition that Military Sexual Trauma (MST) survivors experience is PTSD. The majority of MST-related PTSD claims are submitted by women. 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 non-MST-related claims.

“VA is doing everything it can to deny compensation to veterans impacted by 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.”
SWAN, along with the American Civil Liberties Union, has collected data through Freedom of Information Act litigation that reveals many discrepancies in approval rates between MST and other PTSD-related claims. From 2009 to 2012, MST-related PTSD claims were approved 16 to 30 percent less frequently than other PTSD claims. The VA had refused to share these data prior to actions taken by SWAN, ACLU, and Yale.

The VA has previously admitted problems with evidentiary standards for MST-related claims but maintains that its current policies provide an accurate and fair adjudication. However, the existing rules discriminate on the basis of gender, against both men and women. “The VA’s current discriminatory policies leave thousands of military sexual trauma survivors, both male and female, without the benefits that would aid in their ongoing recovery,” 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, VVA and SWAN submitted a petition for rulemaking to the VA pursuant to the Administrative Procedure Act. 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 groups filed 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 the lawsuit filed this morning, VVA and SWAN argue that the VA “arbitrarily and capriciously” denied their petition in violation of the Administrative Procedure Act. They also argue that the current VA rules unconstitutionally discriminate against service members based on gender.

“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, this, as a result, becomes a secondary assault—once by a fellow serviceperson, and again by the VA denying their claim.”

“The VA contends that the changes it has made help put MST survivors on equal footing with veterans filing other claims. But these measures have not changed the VA’s discriminatory policies,” said Yunsieg Kim, a law student intern at the Veterans Legal Services Clinic at Yale Law School, which represents VVA and SWAN in this petition. “We hope this lawsuit will ensure MST survivors are no longer discriminated against.” A copy of the Petition for Rulemaking can be found at http://www.law.yale.edu/academics/18333.htm along with the original petition.

Vietnam Veterans of America (VVA) is the nation's only congressionally chartered veterans service organization dedicated to the needs of Vietnam-era veterans and their families. VVA's founding principle is “Never again will one generation of veterans abandon another.” www.vva.org

SWAN (www.servicewomen.org) is a national nonpartisan civil rights organization founded and led by women veterans. SWAN’s mission is to transform military culture by securing equal opportunity and the freedom to serve in uniform without discrimination, harassment or assault; and to reform veterans’ services to ensure high quality health care and benefits for women veterans and their families. You can follow Service Women’s Action Network on Twitter at http://twitter.com/servicewomen, or on Facebook at http://www.facebook.com/servicewomen.

In the Veterans Legal Services Clinic at Yale Law School, law students represent individual veterans and their organizations under the supervision of clinical professors. Students engage in litigation before administrative agencies and courts on matters including disability benefits claims, Freedom of Information Act requests, and civil rights lawsuits. In addition, students represent local and national organizations on policy matters relating to the legal needs of veterans.


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