On September 30, 2013, the United States Court of Appeals for the Federal Circuit (Fed. Cir.) issued a published opinion on two consolidated appeals, AZ and AY v. Shinseki. A link to the opinion can be found at AZ and AY v. Shinseki.
Both cases stemmed from disability claims for post-traumatic stress disorder (PTSD) that related to sexual assaults that occurred while in the military [hereinafter “military sexual trauma” or “MST”]. The Fed. Cir. held, in pertinent part, that the Department of Veterans Affairs (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.” Therefore, it is inappropriate for the VA to comment on the lack of contemporaneous reporting while in service to assess whether the event did or did not occur.
The opinion was lengthy, contained a dissenting opinion, and deserves future commentary in light of how this will apply to other PTSD claims of in-service personal assaults under 38 C.F.R. § 3.304(f)(5). My initial review of the regulatory history of 38 C.F.R. § 3.304(f) does not show a marked difference in how the VA should analyze MST versus other claims of in-service personal assaults.
If you have questions regarding your claim for disability compensation before the VA, please do not hesitate to contact us at www.finkrosner.com or via telephone at (732) 382-6070.