MST compensation and pension exams are Department of Veterans Affairs (VA) psychological (or psychiatric) evaluations conducted with veterans who have filed a disability compensation claim for PTSD or another mental disorder due to military sexual trauma (MST).
Military sexual trauma is an event, not a diagnosis. However, sexual assault often causes posttraumatic stress disorder, depression, and other mental disorders.
Because of an ignominious history of blaming victims and protecting perpetrators in the U.S. military, the VA promulgated regulations, polices, and procedures designed to help veterans receive psychological and medical treatment, as well as disability benefits for mental and physical illnesses caused or exacerbated by military sexual trauma.
As with all VA disability claims, the Veterans Benefits Administration (VBA) must help veterans "develop" their claim, i.e., collect evidence in support of the veteran's claim.1
In the context of mental disorder disability claims, this "duty to assist" almost always includes referring the veteran to a psychologist or psychiatrist for an MST compensation and pension exam (C&P exam).2,3
Federal regulations indicate (or at least imply) that C&P examiners—psychologists and psychiatrists—possess the education, training, and experience necessary to determine if a crime (sexual assault) occurred.
Is that true? Are we competent (in the legal sense) to answer such a question?
No. We are not detectives or investigators. We do not possess the specialized education, training, and experience that would prepare us to investigate assault allegations and determine if a crime has been perpetrated.
So what should you do when asked for “an opinion as to whether [available evidence] indicates that a personal assault occurred”?4
Option 1: Ignore the inappropriate question and instead answer the appropriate question: "Does the veteran suffer from PTSD (or another mental disorder) as result of a sexual assault that the veteran indicates occurred during military service?"
Option 2: Explicitly reject the question as inappropriate, explain why it is inappropriate, and then proceed to answer the appropriate question.
If you're thinking, "But that's a distinction without a difference", read on.
First, let's step away from the C&P exam context and consider how we approach the clinical assessment of patients who present with post-traumatic stress symptomatology and who report experiencing a sexual assault many years ago.
Although military sexual trauma can cause mental disorders other than PTSD, e.g., depression, PTSD is the most common diagnosis so I will discuss this issue as it pertains to sexual assault(s) causing post-traumatic stress disorder.
See if you would agree with the following statement about conducting a clinical (as opposed to forensic) PTSD assessment, i.e., an assessment designed to help reach an accurate diagnosis and to guide treatment planning.
If you conduct a thorough, evidence-based clinical assessment, and you conclude that the patient suffers from PTSD, you will have in most instances also concluded that the patient experienced a sexual assault.
Stated a bit differently, since the diagnosis of PTSD requires that the person experienced a Criterion A stressor, determining if an assault occurred is part and parcel of the PTSD assessment process.
Thus, in the clinical setting, even if a patient reports several PTSD symptoms, you will not diagnose PTSD if you do not believe the patient was assaulted. Conversely, if you believe the patient was assaulted, you will most likely diagnose PTSD.
The same logic applies to MST compensation and pension exams.
But there an even more compelling reason why we can make causal determinations during an MST compensation and pension exam.
Of course, important differences exist between clinical and forensic psychological evaluations. But in this instance those differences do not alter my previous statement: Before we diagnose PTSD due to sexual assault, we must determine if a traumatic event occurred, i.e., if the individual was assaulted.
Making a causal determination is not unusual for a C&P exam. In fact, when conducting almost any psychological C&P exam, i.e., not just MST-related exams, we make causal determinations.5
Several situations or events can cause or exacerbate a mental disorder, such as medical disorders (e.g., chronic pain, Parkinson's disease), accidents, enemy attacks, or the death of a fellow service member.
When conducting a C&P exam, we must decide if such situations or events caused or exacerbated a veteran's mental disorder.
MST compensation and pension exams are unique because the purported cause is a crime. But, as noted earlier, in an MST compensation and pension exam, we do not conduct a criminal investigation, and in our C&P exam report, we do not give an opinion stating whether or not a crime occurred.
There are a few other things to consider regarding MST compensation and pension exams.
(1) Some of the language in the VBA's M21-1 Adjudication Procedures Manual is better (more nuanced) than the sentence I quoted above from 38 C.F.R. § 3.304(f)(5). For example, the Manual instructs VBA staff:
"Ask the examiner if the behavior changes demonstrated by the Veteran are 'consistent with the expected reaction or adjustment of a person who has been subjected to an assault'."6
Thus, you could write in a report that, for example, "the veteran's rapid escalation of drinking to intoxication and multiple disciplinary infractions are consistent with the expected reaction or adjustment of a person who has been subjected to an assault."
(2) 38 C.F.R. § 3.304(f)(1) indicates that a "veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor."
Thus, we must remember to give at least some credence to a veteran’s self-report. At the same time, "may establish the occurrence of" is not the same as saying "proves the occurrence of”.
(3) I recommend a careful reading of the language in 38 C.F.R. § 3.304(b)(1) and (2) as it emphasizes the examiner’s (and adjudicator’s) obligation to do the hard work of comparing, contrasting, analyzing, and integrating multiple sources of sometimes divergent information.
(4) Reading the regulation discussed immediately above [38 C.F.R. § 3.304(b)] should make it clear that an examiner's conclusions regarding etiology must include a cogent explanation (rationale) for their opinion.
Astute rationales are always important, but perhaps even more so for MST compensation and pension exams.
(5) If an examiner cannot reach a conclusion without resorting to mere speculation, they should explain why, and their explanation must address all the issues delineated by the appeals court in Jones v. Shinseki, 23 Vet. App. 382, 387–390 (2010).
(6) Finally, if the evidence is in equipoise, i.e., 50/50, then simply say that. For example:
It is at least as likely as not that the veteran suffers from post-traumatic stress disorder (PTSD) as a result of the sexual assault she described in her claim and during the present examination.
1. Duty to assist claimants, 38 U.S.C. § 5103A.
2. Medical examinations for compensation claims, 38 U.S.C. § 5103A(d).
3. The VA Medical Examination and Disability Rating Process: Hearing before the Subcomm. Disability Assistance & Memorial Aff. of the H. Comm. Veterans Aff., 110th Congress 63-65 (2008) (statement of Michael McGeary, Senior Program Officer & Study Dir., Comm. Med. Evaluation Veterans Disability Benefits, Bd. Mil. & Veterans Health, Inst. of Med., Nat'l Acad.) ("In nearly every case, VBA has applicants undergo a compensation and pension, or C&P, examination performed by a Veterans Health Administration (VHA) or contractor clinician.")
4. 38 C.F.R. § 3.304(f)(5).
5. This statement (when conducting almost any psychological C&P exam, we make a determination about causation) applies only to Initial exams—it does not apply to Review exams.
6. Veterans Benefits Admin., Dep’t Veterans Affairs, Interpretation of Behavioral Changes as Markers of Personal Trauma, M21-1 Adjudication Procedures Manual, pt. III, subpt. iv, chap. 1, sec. E, topic 1, block e (July 29, 2021); see also Requesting Examinations for PTSD Claims Based on Personal Trauma, M21-1 Adjudication Procedures Manual, pt. VIII, subpt. iv, chap. 1, sec. C, topic 1, block c (Aug. 2, 2019).
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