Citation Nr: 0003966 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 95-38 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991) for additional psychiatric disability claimed to be the result of a rape at a Department of Veterans Affairs (VA) facility in February 1979. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Mother ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1972 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. That rating decision denied entitlement to disability benefits under the provision of 38 U.S.C.A. § 1151 (West 1991) for additional disability resulting from VA hospitalization in February 1979. This case was previously before the Board in March 1998 when the Board denied entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 (West 1991). The veteran appealed to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In November 1998, the Court vacated the Board's decision and remanded the case to the Board for further development of the veteran's claim. FINDINGS OF FACT 1. All necessary evidence has been obtained for an equitable disposition of the veteran's appeal. 2. In February 1979, the veteran was hospitalized at a VA facility for psychiatric treatment; her claim is based on an allegation that she was sexually assaulted during that hospitalization. CONCLUSION OF LAW The veteran's claim for disability benefits pursuant to 38 U.S.C.A. § 1151 (West 1991) for additional psychiatric disability claimed to be the result of a rape at a Department of Veterans Affairs (VA) facility in February 1979 lacks legal merit. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1999). Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters. As amended, 38 C.F.R. § 3.358(a) provides that compensation is payable, under 38 U.S.C.A. § 1151 as if service-connected, where there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, or examination. In pertinent part, 38 U.S.C.A. § 1151 provides that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment,...and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability..., disability or death compensation...shall be awarded in the same manner as if such disability, aggravation, or death were service- connected. Under 38 C.F.R. § 3.358(b) in determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. Under 38 C.F.R. § 3.358(c) in determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. Historically, in Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") invalidated the negligence provision in 38 C.F.R. § 3.358(c)(3), a section of the regulation implementing 38 U.S.C.A. § 1151 (formerly § 351), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. Subsequently, the Court's Gardner decision was affirmed by the United States Court of Appeals for the Federal Circuit (Court of Appeals) in Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), and subsequently appealed to the United States Supreme Court (Supreme Court). On December 12, 1994, the Supreme Court issued its decision in Gardner, affirming the decisions of the then Court of Veterans Appeals and the Court of Appeals. Brown v. Gardner, 115 S. Ct. 552 (1994). Since that decision, determinations of disability under § 1151 have involved a two-step process. First the veteran had to show additional disability. Second, the veteran had to show causation, i.e., that the additional disability was the result of VA treatment. More recently, Congress sought to reimpose a component of fault to the causation element of § 1151 by passage of the 1997 VA/HUD Appropriations Act, section 422(a) of Pub.L. No. 104-204, 110 Stat. 2926 (1997). Added to the requirement of an increased disability was the requirement that "the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable . . ." 38 U.S.C.A. § 1151(a)(1) (West 1991 & Supp. 1997). Congress specifically limited application of the revised provisions of § 1151 to those claims filed on or after October 1, 1997. II. Factual Background. The veteran presents a long history of treatment prior to and subsequent to the February 1979 VA hospitalization from which she is claiming additional disability. A March 1978 VA hospital summary shows that she began drinking while in the Army and had stopped only recently in December 1977 when she went on Antabuse and attended Alcoholics Anonymous. She was admitted following a suicide attempt, described as drinking alcohol while on Antabuse. She was diagnosed with immature personality with passive dependency traits. A November 1978 VA hospital summary notes that she was discharged in September 1978 from a VA hospital following treatment for an acute psychotic episode for which she was prescribed the drugs Stelazine and Thorazine. She was currently being treated for complaints of paralysis of her hands which was determined to be a reaction to the drug Stelazine, which she was taking at twice the prescribed levels. In February 1979, the veteran was admitted by VA for what was noted as the sixth time, in a "somewhat decompensated state." The report indicates a history of an immature personality with various hysterical traits. Her chief complaints on this admission were insomnia, as well as crying episodes. She had also demonstrated various hysterical neurotic tendencies as well as complaining of free floating anxiety and vague feelings of fear. The following hospital course is described on the summary of her hospitalization: [The veteran was admitted to building] 68 and during that evening or early morning hours, she reported to the nurses on building 68 that she had been raped by a black male. She was transferred to Building 67LE for further treatment and initially was acutely psychotic though I cannot say whether this was the case prior to the reported rape or not. [She] was shortly transferred to [the University of Arkansas Medical Center] for gynecological examination and it was determined at that time that she had had recent intercourse. . . . Initially, due to [the veteran's] psychotic state, she was given pharmacotherapy, group and milieu therapy. She did become oriented and much more organized in thinking, and as she progressed appeared much more passive dependent and hysterical with her psychosis dropping out. A more detailed examination of the progress notes made during her hospitalization shows that on admission to the hospital in February 1979, the veteran was complaining of fear "of a lot of things," having nightmares, and complaining of insomnia. She complained that she was having difficulty sleeping, would wake up after a few hours sleep, chain smoke and cry. In addition to being scared, she was also having headaches. This she described as her reason for admission. She stated that she didn't know what she was scared of, "just everything." Her mother who brought her in indicated that the veteran had been going to a mental health clinic daily, but had gotten much worse the previous day. She had irrelevant speech the night before, fear of her neighbors and a poor memory for recent events. She had also admitted to hallucinations. The diagnosis by the admitting physician was organic brain syndrome with "psych" and schizophrenia. The next morning, at 6 a.m., the veteran told the nurse that the previous night, just after lights out around 9 p.m., a man came into her room and raped her. She then identified one of the men in the hall, another patient, (hereinafter referred to as "male #1"), as the one who raped her. Several statements were provided by personnel on duty before and after the alleged rape. One nurse stated that she walked past the room several times that night between 8:45 p.m. and 9:15 p.m. and did not hear any noise that indicated a struggle or scuffle in her room. Another nurse stated that at approximately 8:20 p.m., she administered medication to the man identified as the rapist, who was asleep in the day room but who on waking poured water for the other patients and appeared very drowsy. At approximately 8:40 p.m. the nurse left the medication room, and stated that she saw the veteran undressing with her door wide open which the nurse shut. The next morning, the veteran describe the alleged rape incident to another nurse who wrote the following description in the medical record: I was in my room next to the nursing station, the light in my room was on. A black man came into my room and closed the door. He said he wanted to help me, and that he wouldn't hurt me. He pulled my clothes off and raped me. I tried to fight him, he did not try to hurt me. I did not yell because I was afraid and I didn't tell anybody because I was afraid. I think his name was [male #1]. Later that morning, the veteran again described the incident, and again to the same nurse, but with much less coherence. [She] proceeded to give [a] rambling account of [the] alleged rape, but with conflicting information. [She] stated: '[Male #2] came into my room [and] raped me . . . [n]o, he didn't' rape me, [male #1] raped me . . . [male #2] just came in to talk to me . . . I don't want to talk anymore, I'm nervous, now.' That afternoon, following a medical examination, she was transferred to another building. The information she gave was irrelevant, conversation loose and tangential. Her affect was flat and she had some difficulty performing simple requests. Her condition was described as "acutely psychotic." She was hostile at times during the evening, using foul language, and following a male patient around. Another patient reported her talking about sex around him. After the veteran attempted to get in bed with another female patient, her bed was moved and she began talking of cutting herself with a knife. She was placed in restraints for her own protection. The next morning, the veteran remained in restraints except to go to the bathroom, and continued to moan aloud, gurgle and demonstrate bizarre behavior. She was medicated with Thorazine and appeared in the afternoon to be in much better control and acting appropriately. The assessment was of decreasing psychosis. She continued to improve; however, several days later she complained to the nurse that another female patient was touching her on the shoulder in a sexual way. The nurse wrote in the report, "[I feel] that [she] is imagining these incidents." Later that evening, she told the nurse she was approached by a male who asked "how are you" and put his arm around her and squeezed her side with his hand, "like a claw." She stated, "[I]t was like he was doing it in a . . . weird sexual way." The nurse wrote in the report that "I feel [the veteran] misinterpreted [the] actions as a sexual advance . . . [she is] having difficulty [with] interactions not initiated by her." Reassurance was given, and later the veteran seemed relaxed. Approximately one week after her admission, the veteran's mental condition was evaluated. She stated that she was doing quite well and was receptive to returning home with her parents in the morning. On observation, the examining doctor noted that she had been reported to be quite seductive and hysterical on the ward and that several incidents were reported to have occurred with male patients. The doctor spoke with her concerning these inappropriate subtle or overt presentations. She reacted quite naively but the doctor noted that he felt she was aware of some of her actions. Also noted was that she was quite child-like and had a hysterical character, identified as dramatic and seductive, as well as some dependent characteristics. The assessment was of a passive dependent personality with hysterical characteristics. She was discharged nine days after her admission. The report of her hospitalization concluded that "[a]t the time of discharge, we felt that [the veteran] had fully compensated to her normal state of health and was subsequently discharged." The veteran was hospitalized again in March 1981, and noted to have "at least eight previous admissions." She came from a half-way house in Little Rock where she had been living for the past year. Her chief complaint was being tired. She did not complain of any symptoms of psychosis, delusions, hallucinations, or any other physical problems at the time of admission. She indicated that her history of alcohol abuse had resolved since her religious experiences. Her only desire was to receive vocational counseling so that she could return to work. "Since she was not psychotic and was functioning better on the ward than the staff had ever seen her before, we kept her until she could be seen in Vocational Counseling . . . and she is presently being discharged." The diagnosis at discharge was "hysterical personality, [with] a previous history of psychosis but none present at this admission." In October 1992, the veteran received a very comprehensive psychological evaluation by a private psychologist. She related a history of growing up with a cleft palate and severe speech impairment, a loner and isolated from the other students. Her father related to no one and she had a personality clash with her mother. After a brief and unsuccessful marriage at 21 which she described as nothing more than "continuing rapes," she divorced, entered the Army and began drinking, daily and heavily and continued drinking after discharge. She recounted a 1979 rape at a VA hospital which resulted in "even more fear of men and increased social isolation." She stated that when she worked in the 1980's she shut out men totally and lived in total isolation. At present, she feared public places, was suspicious and distrustful, particularly of men. She described no contact with men since a second failed marriage in 1979, which was annulled as she could not tolerate a sexual relationship. She only felt safe at Alcoholics Anonymous meetings. Following standard psychological testing, the examiner made the following comments: This young woman has had a lifetime of pain and emotional distress. She had an unhappy childhood, aggravated by her cleft palate and inexperiences in forming any close emotional relationships. She was then exploited by her first husband, running away and joining the Army and being introduced to alcohol. This gave her emotional relief that she had not experienced before and she became almost immediately dependent on the alcohol. As long as she was drinking, she did not experience as much emotional pain but gradually lost her capacity to adequately function. She was then repeatedly hospitalized and on one of these occasions raped. This further aggravated her situation and created the image of a dangerous world in which she lived. . . . Underlying all of this is a multitude of emotional problems that involve a border line psychotic condition with marked schizotypal tendencies, anxious depression, paranoid ideation and social isolation. An evaluation by a psychiatrist in October 1992 as part of the veteran's claim for benefits from the Social Security Administration (SSA) resulted in diagnoses of major depressive disorder, recurrent; dysthymia; alcohol dependence in remission; anxiety disorder; personality disorder, mixed with borderline and avoidant features and status post cleft lip and palate repair. In summary, the psychiatrist stated that the claimant had severe self esteem problems stemming from a congenital birth defect which caused significant impairment in social maturation and a general failure at social and sexual relationships all of her life. An October 1993 SSA determination granted benefits in part for recurrent major depressive disorder, dysthymia and anxiety disorder. In September 1994, the veteran was afforded a VA mental disorders examination. She described her first experience with alcohol in the service and indicated that it had an extraordinary effect on her. Currently, she stated, "I have a lot of anxiety, fears, nightmares, severe nervousness, hate. I haven't been drinking for six months. I don't like to be in public places, but I'm comfortable in AA . . ." On examination, she was oriented to time, place, and person, and in good touch with reality. Her speech was completely coherent, memory good, and intelligence probably above average. She was preoccupied with her long history of alcoholism and psychological problems. Her emotional reaction during the interview was described as mildly anxious, "probably because she wanted to make sure that I had her complete history." The examiner summarized her condition: [Her] most obvious diagnosis is alcohol dependence. Although she has not had a drink for several months, she has abused alcoholl (sic) for some 20 years. In addition, she meets the criteria for Social Phobia, in that she experiences considerable anxiety when confronted with social situations. . . . Finally, I believe that [the veteran's] way of relating to people is chronically maladaptive and meets the criteria for Personality Disorder. The diagnoses were: Axis I, alcohol dependence (in remission) and social phobia; Axis II, personality disorder, NOS, with schizoid, avoidant, and borderline features. More recently, in March 1997, the veteran was seen at a VA mental health clinic. She recounted her history, and stated that since she was raped by another patient her mental condition had deteriorated. She sought a letter in support of her claim for VA benefits. "When she presented for the consult, she was not interested in receiving treatment for her mental health conditions." A week later, she was told that the matter of resolving her claim was the responsibility of the RO. In August 1999 the Board requested an independent medical opinion from a specialist in psychiatry. The specialist was asked to review the complete records contained in the claims files and answer the following question: "Did the veteran incur additional psychiatric disability during her hospitalization by VA in February 1979?" The specialist was asked to compare the veteran's mental condition immediately prior to her hospitalization with her subsequent, post hospitalization, mental condition. If additional disability was found, the specialist was asked to comment on whether this was a continuation or the natural progression of the veteran's psychiatric disorder. In October 1999 a response was received from M. Collins, MD at the Department of Psychiatry and Behavioral Neurosciences at the Loyola University Medical Center in Chicago. She wrote that she reviewed the medical records of the appellant and identified the issue as "whether an alleged rape occurring during the appellant's treatment at a [VA facility] worsened her psychiatric illness." Dr. Collins provided a brief review of the veteran's medical history including her psychiatric symptoms and treatment before and after her February 1979 hospitalization by VA. Her assessment was as follows: It is difficult to elaborate on the medical principles involved given the records of medical care provided to me. A rape occurring on a psychiatric inpatient unit is an obvious horror. Female patients such as the appellant, who are sexually inappropriate as a symptom of their illness are at particular risk. The possibility of proving or disproving that the rape occurred is extremely unlikely. [Though] the gynecological exam performed after the alleged assault indicated the appellant had had recent intercourse and a sexually transmitted disease, it does not address whether the intercourse was consensual. Intuitively, one would assume the appellant's clinical condition would worsen after such a traumatic event, as did hers. However, her confused and disorganized behavior cleared by the time of her discharge 8 days later. The most common longterm sequelae of a traumatic event would be the development of a post-traumatic stress disorder superimposed on her previous psychiatric condition. This additional diagnosis would worsen her clinical course and prognosis. I find nothing in the records to indicate this occurred. It is clear rather that the number of admissions and severity of her symptoms diminished in subsequent years. In light of same, given the available documentation, the patient's psychiatric illness did not appear to worsen as a result of the alleged rape occurring during the [February 1979] admission. III. Analysis The veteran essentially claims that she has incurred additional psychiatric disability as a result of a rape in a VA hospital in February 1979. On initial review of this case by the Board in March 1998 it was determined that the veteran had submitted a well grounded claim; however, the preponderance of the evidence did not support a grant of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. On appeal to the United States Court of Appeals for Veterans Claims, the Court vacated the Board's decision which, according to a Joint Motion for Remand, was due to inadequate medical evidence to support the Board's conclusion. On return to the Board, an independent medical opinion was requested. However, a recent decision by VA's Office of General Counsel has rendered this development moot. The Board is bound not only by the laws prescribed by Congress, but also by the precedent opinions of VA's Office of General Counsel. 38 U.S.C.A. § 7104(c); Brooks v. Brown, 5 Vet. App. 484 (1993). In a recent precedent opinion, the General Counsel concluded that compensation may be paid under 38 U.S.C.A. § 1151 for psychiatric as well as physical disability incurred or aggravated as the result of a VA examination or medical treatment at a VA facility. However, it was also concluded that, as applicable to claims filed before October 1, 1997, compensation under 38 U.S.C.A. § 1151 may not be paid for disability incurred or aggravated as the result of a sexual assault by a VA employee which occurred while the veteran was receiving an examination or medical treatment at a VA facility. For purposes of compensation under 38 U.S.C.A. § 1151, the disability must result from the medical treatment or examination itself and not from independent causes occurring coincident with the treatment or examination. A sexual assault generally would not constitute medical treatment or examination within the meaning of 38 U.S.C.A. § 1151 and would not provide a basis for compensation under those provisions. Nonetheless, if the actions or procedures alleged to have constituted an assault would otherwise be within the ordinary meaning of the terms "medical treatment" or "examination," then compensation may be payable under 38 U.S.C.A. § 1151. Accordingly, it may be necessary to make a factual determination in individual cases. VAOPGCPREC 01-99 (February 16, 1999). In a case where the law is dispositive of the claim, it should be denied because of lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As was noted in the medical opinion solicited by the Board, the possibility of proving or disproving that the rape occurred is extremely unlikely. Nonetheless, the Board finds that even if a sexual assault had occurred, it would not constitute "medical treatment" or "examination," and would not provide a basis for compensation under the provisions of 38 U.S.C.A. § 1151. As clearly outlined above, a sexual assault would be considered an independent cause occurring coincident with the treatment. See VAOPGCPREC 01-99, supra. Hence, under Sabonis, the law is dispositive on the veteran's claim and it must be denied as lacking legal merit. The veteran's claim is therefore not one for additional disability as a result of her treatment, but one for compensation as a result of a tort which occurred coincident with her hospitalization. This is consistent with the veteran's own testimony in a June 1997 personal hearing when she explained why, although she had been under treatment at the VA in Fayetteville, she did not bring recent records with her. There are new records on me. It's just that I did not haul them all down here that didn't have anything to do with the rape. The rape still happened. And that will never go away. Now anything after that has nothing to do with this rape. I mean a crime is a crime. You can't take a crime away by saying, 'Well, what are you doing now?' That still doesn't erase the crime that was committed. Do you see what I'm saying? The veteran's claims do not appear to be based on having incurred an additional disability as a result of her VA hospitalization; rather, she appears more concerned with being compensated for a crime. This is evident in her testimony when she discounts any current evidence as irrelevant to the fact that the rape occurred. Under these facts, it would appear that the veteran's remedy, if any, rests more appropriately under the Federal Tort Claims Act, 28 38 U.S.C.A. §§ 1346(b), 2672-2680, not under 38 U.S.C.A. § 1151. In view of the above, the Board must necessarily conclude that the criteria for entitlement to benefits not having been met, the appellant's claim lacks legal merit and, accordingly, must necessarily be denied. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1996); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In a letter dated November 2, 1999, the appellant's attorney registered an objection to the Board's procedures in obtaining an independent medical expert's opinion. Specifically, he stated that it was not clear what records were provided the expert. However, the Board's letter to the expert clearly indicated that three VA claims file were enclosed. It is the practice of the Board to provide its experts the complete records containing any information pertinent to the issue for review. By "pertinent to the issue" the Board notes that, for example, records pertaining to a guaranteed home loan would not ordinarily be forwarded to an expert when the question to be addressed concerned a medical disability. The attorney also objected to the Board's use of the term "alleged rape" in its letter to the expert briefly outlining the situation. The attorney believes that the term "alleged" indicated the Board's bias as to the outcome of the case. However, the issue of whether the rape actually occurred was not addressed by the Board, nor did the expert speculate or make a determination as to this matter. The question put to the expert by the Board was essentially whether the veteran incurred additional psychiatric disability during the hospitalization, as claimed by the veteran. The attorney also objected because the "medical opinion was sought without consultation with the veteran's representative" who was "not informed nor provided with a copy of the letter from the Agency requesting the opinion." The Board points out that, as the attorney noted, a referral for an independent medical opinion is entirely within the Board's discretion. There is no requirement that a request for such an opinion be drafted in consultation with the veteran's representative. The attorney was notified that such an opinion was requested and that he would have ample time to review the completed opinion after it was received. Moreover, the Board notes that the veteran's attorney was free to request on his own a medical opinion from the expert of his choice. In any event, given the General Counsel's opinion and its effect on this case as discussed herein, this line of argument by the attorney, attacking the procedures in obtaining the medical opinion (which he also found to be substantively inadequate), is irrelevant because it is the law that is dispositive of the claim. ORDER The veteran's claim for benefits under the provisions of 38 U.S.C.A. § 1151 for additional psychiatric disability claimed to be the result of a rape at a Department of Veterans Affairs (VA) facility in February 1979 is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals