YLS Clinic Represents Veterans Organizations in Discrimination Suit Against VA

The Service Women’s Action Network (SWAN) and Vietnam Veterans of America (VVA) jointly filed a lawsuit against the U.S. Department of Veterans Affairs (VA) on Wednesday, April 30, 2014, for ignoring a petition on behalf of the thousands of veterans suffering from PTSD related to Military Sexual Trauma (MST) caused by military rape, harassment and/or assault. The suit, filed in the U.S. Court of Appeals for the Federal Circuit, addresses the VA’s failure to revise its discriminatory disability claim review process. The Yale Law School Veterans Legal Services Clinic represents the organizations as counsel in the suit.

Veterans who experience PTSD related to their service are entitled to seek disability compensation to offset the costs associated with this diagnosis. However, for those veterans whose PTSD stems from military sexual trauma, the VA both imposes a greater procedural burden on them to prove their claims and denies their claims at a significantly higher rate than other PTSD claimants.

One sexual assault survivor, who wished to remain anonymous, said of the VA’s 2011 rejection of her 2010 claim, “even though they found my statements to be ‘compelling and believable,’ they said my own testimony and corroborating statements from my family were not enough to prove that I was raped. The VA also claimed that I did not have PTSD, even though I was undergoing treatment for PTSD at the VA itself and with private practitioners.”

From 2009 to 2012, MST-related PTSD claims were approved 16-30% less than other PTSD claims.

“The VA knows the current process makes veterans who’ve been harmed by military sexual harassment and assault jump through more hoops than other PTSD claimants to apply for and receive PTSD disability benefits. But they refuse to change their regulations,” said Anu Bhagwati, Service Women’s Action Network executive director and former Marine Corps captain. “The result of this discrimination is that survivors of military sexual harassment and assault are denied life-saving benefits and critical income to support themselves and their families.”

The current rules also discriminate on the basis of gender, against men and women, in a number of ways. By imposing a higher legal burden on MST survivors, the rules discriminate against women, who are sexually assaulted at disproportionately higher rates than men in the military. Nearly one in three service women are raped during service (28%), more than half experience unwanted sexual contact (54%), and more than three-fourths experience some form of sexual harassment (79%). Yet these women face an uphill battle in securing benefits for injuries related to these assaults.

VA’s refusal to revise the regulations discriminates against men, as the VA grants benefits to men with MST-related PTSD disabilities at an even lower rate than it does for women. In 2011, for example, VA granted nearly 49% of PTSD claims from female survivors, but only 37% of claims from male survivors.

“Veterans Affairs cannot continue to turn a blind eye to the terrible harms our service women, and men, are suffering,” said Dr. Tom Berger, a former Navy Corpsman and Executive Director of the Veterans Health Council at VVA.

On June 27, 2013, SWAN and VVA submitted a petition for rulemaking to VA under the Administrative Procedure Act. The petition sought to end this discriminatory treatment and eliminate the barriers that exist specifically for MST survivors seeking compensation. VA, however, has ignored the petition and has failed to respond to the proposed rule, leaving co-petitioners no recourse other than to file this suit.

“VA’s failure to respond means MST claims will continue to be disproportionately denied, or delayed, jeopardizing the health and welfare of so many military families,” said Service Women’s Action Network policy director and former Marine Greg Jacob. “They can’t afford to wait any longer.”

In the lawsuit, SWAN and VVA argue that the VA’s failure to respond to their original petition violates the Administrative Procedure Act, which requires the agency to respond within a reasonable time. SWAN and VVA also argue that current VA rules are unconstitutional because they discriminate against service women on the basis of gender.

“Federal law requires VA to respond in a timely and well-reasoned manner, which it has failed to do,” said Daniella Rohr ‘15, a law student intern at the Veterans Legal Services Clinic at Yale Law School, which represents SWAN and VVA in this petition. “VA’s discriminatory rules are subject to review, and if we’re successful, MST survivors would finally be on equal footing with other veterans seeking disability compensation.”

A copy of the Petition for Review can be found here. The original Petition for Rulemaking can be found here.

SWAN 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.

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.”

The Veterans Legal Services Clinic at Yale Law School was founded in 2010 to train law students and to serve the legal needs of veterans. Within the clinic, law students represent individual veterans and their organizations under the supervision of clinical professors. Students engage in litigation before administrative agencies and courts on a range of matters including disability benefits claims, discharge upgrades and other record corrections, Freedom of Information Act requests, deportation defense, class-action litigation, and civil rights lawsuits. In addition, students represent local and national organizations in non-litigation matters relating to the legal needs of veterans, including regulatory and legislative reform efforts, media advocacy, and strategic planning. The Veterans Legal Services Clinic is one of only a handful of law school clinics in the country dedicated exclusively to serving veterans.