By RYAN ABBOTT
WASHINGTON (CN) – The Department of Veterans Affairs refuses to respond to a rulemaking petition addressing the alarming numbers of rape and sexual assaults in the U.S. military, two veterans’ groups claim in court.
The Service Women’s Action Network and Vietnam Veterans of America filed a petition with the U.S. Court of Appeals for the Federal Circuit, claiming that Veterans Affairs (VA) constructively denied their petition seeking to ease the administrative burdens of rape victims looking for benefits.
“Widespread rape, sexual assault, and sexual harassment plague the military, threatening the strength of the armed forces, undermining national security, and destroying the lives of survivors and their families,” the petition states.
“Nearly one in every three women is raped during her service and more than half experience unwanted sexual contact.”
The petition continues: “Moreover, of the 26,000 service members who reported unwanted sexual contact in 2011-12, fifty-two percent were men. These assaults often result in devastating, long-term psychological injuries, most notably Post-Traumatic Stress Disorder (‘PTSD’). Sexual violence correlates with PTSD more highly than any other trauma, including combat.”
The groups ask the VA to change evidentiary rule 38 C.F.R. § 3.304 by adding a subsection that would provide the same sort of evidentiary presumption for military sexual trauma-related PTSD as the VA applies to combat and fear-related PTSD claims.
The groups say the petition challenges an evidentiary standard that “effectively bars many meritorious MST-related [military sexual trauma] claims.”
They say the petition would ease the evidentiary burden by allowing applicants to submit independent medical evaluations and diagnoses.
They also want the VA to eliminate administrative backlog, expedite claims and produce consistent results without regard to gender.
“VA has ignored SWAN and VVA’s petition since its submission in June 2013. Accordingly, petitioners now have no choice but to seek this court’s intervention,” the complaint states.
According to the complaint, one in five female veterans and one in 100 male vets seek VA healthcare help for rape, sexual assault or sexual harassment.
“MST survivors, however, are not afforded the same legal presumptions as other veterans, even though their service connection is often more difficult to prove,” the groups say in the 7-page petition for review. “Instead, since VA often rejects lay testimony alone, victims must present other corroborating evidence of their sexual trauma. Due to systemic under-reporting of in-service sexual trauma, most MST is not documented.”
They add: “Years of informal advocacy have failed to persuade VA to end disproportionate rejection of MST-related claims by adopting the same sort of evidentiary presumptions that it uses for other claims.”
The groups say they are adversely affected by the VA’s failure to respond to their petition, and want the court to compel the agency to undertake rulemaking and enact the proposed rule.
Named as respondent is Secretary of Veterans Affairs Secretary Eric Shinseki.
The groups are represented by Michael Wishnie and a group of student attorneys from Yale Law School in New Haven, Conn.