Citation Nr: 1311210 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-26 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and her daughter. ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to June 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The January 2008 rating decision denied the Veteran's claim for entitlement to service connection for PTSD. The April 2009 rating decision denied the Veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye disability. In June 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2011 decision, the Board denied the claim for entitlement to service connection for PTSD and remanded the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye disability. The Veteran appealed the denial of service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Partially Vacate and Remand (Joint Motion) in August 2012. By an order dated in August 2012, the Court granted the Joint Motion and has remanded the matter to the Board for compliance with its instructions. The issue of compensation under 38 U.S.C.A. § 1151 has been returned to the Board for review. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving doubt in the Veteran's favor, the record contains credible supporting evidence that the claimed in-service personal assault occurred and the Veteran's PTSD has been related to her in-service assault. CONCLUSION OF LAW PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). During the course of this appeal, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Compare 38 C.F.R. § 3.304(f) (2009) with 75 Fed. Reg. 39843 (July 13, 2010). These amendments, however, did not amend claims for PTSD based on in-service personal assault, other than redesignating 38 C.F.R. § 3.304 (f)(3) to its current codification at 38 C.F.R. § 3.304 (f)(5). Id. Pursuant to 38 C.F.R. § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Under the newly designated 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible supporting evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). Since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought. In this case, the Veteran has averred that she has PTSD as a result of a personal assault that occurred during military service. The Veteran contends that she has PTSD as a result of being raped by an ex-Navy football player in January 1963. A May 2009 letter from a VA Military Sexual Trauma Coordinator reflects that the Veteran has been treated for PTSD. A May 2009 VA treatment record reflects that the Veteran had an Axis I diagnosis of PTSD. Thus, there is a current diagnosis of PTSD. The Veteran contends that she was raped by a manager of a restaurant outside the base who was well known around the base. The Veteran stated that she went to ask to use his car and he asked her to go by his apartment. She stated that he then raped her. At the June 2011 Board Hearing, the Veteran stated that the attacker choked her to hold her down and keep her from screaming. She stated that he ripped her clothing off while he choked her, and that she had bruising on her arms and neck. She stated that after the rape, she was hemorrhaging and her attacker took her to the hospital in his car. She stated that she could not walk at the time and that he carried her to his car. The Veteran testified that she did not know where he was taking her at that time and that she did not attempt to get out of his car. She stated that he took her to the Naval Hospital with no problems and was left in front of the dispensary and that she was treated for hemorrhaging and internal damage. At the January 2010 RO Hearing, the Veteran also stated that she knew she was raped before the 16th of January because that was about the time she would have her period, which she did not have. In the June 2007 stressor statement, the Veteran stated that she reported the rape at the Norfolk Naval Hospital and stayed in the barracks for three weeks because she could not work because of the injuries she sustained. She stated that when she later found out that she was pregnant from the rape, she believes the commander set up a meeting with a doctor who tried to abort the baby, which did not work. She stated that they wanted to try again but she refused. At the June 2011 hearing, the appellant stated that her commanding officer had her wear a trench coat every day and come in the back door when she started showing. She stated that she did not do her job very well following the incident. The May 2009 VA treatment record reflects that she reported that she was a virgin prior to the rape and was engaged to be married the following month after the rape occurred. The Veteran stated that a few days after her discharge from service in June 1963, she married her fiancé. The service treatment records do not indicate that the appellant reported being raped during service. A March 13, 1963 service treatment record indicates the Veteran was seen for mild nausea and general malaise. She reported a past history of abdominal cramps, and that she had had a mild vaginal discharge. She was prescribed Librium for nervousness. The Veteran was rechecked on March 26, 1963. She reported that her last menstrual period had been on January 28, 1963, for three to four days. She stated that her previous menstrual period had been on January 16, 1963, for five to six days. She indicated that she had had no spotting since. She reported that she had intercourse one time in January and there was a chance of pregnancy. The record noted that the Veteran was "engaged - not married." It was noted that the Veteran had an intrauterine pregnancy and her uterus was six plus weeks in size. A June 1963 discharge examination report reflects that the Veteran was four months pregnant. The report also noted that she was 16+ weeks pregnant. The Veteran's service personnel records indicate that she took nine days of leave from January 17, 1963, to January 25, 1963, and five days of leave from February 20, 1963, to February 24, 1963. A service personnel record dated January 18, 1963, reflects that the appellant completed a typewriting performance test required preliminary to advancement. The record reflects that the Veteran was recommended for advancement and nominated for examination, and that she was eligible in all respects for participation in a Navy-wide competitive examination. In a September 2006 letter, the Veteran's ex-husband stated that the Veteran was raped in January 1963 by a man that worked at a pizza place outside of the Naval Receiving Station in Norfolk, Virginia. He stated that the Veteran became pregnant after the rape and was told not to say anything about the rape by her commanding officer. He reported that she was told to stay in her barracks for several weeks before returning to work. He stated that in June 1963 she asked to be discharged. The Veteran's ex-husband stated that the baby was born in October 1963, and that he accepted and raised the child as his own. He reported that the Veteran saw a psychiatrist for the first two years of their marriage because of the rape and that he did not think she ever recovered from what happened to her. He stated that they had one other child and divorced in 1973. In a January 2010 letter, the Veteran's daughter stated that as a teenager, a counselor told her that her mother was raped in the military. She stated that a few years later, she had a child who had sleep apnea. The nurse said that they would need the blood types of her parents. At that time, she was told that she was the product of rape and that her father was not her biological father. At the June 2011 Board hearing, the Veteran's daughter testified that she knew about her mother's rape in her early teens. She stated that her mom told her about it on a few occasions, but she was not told that she was a rape baby. She stated that when she had her own child, there was an incident with her, and they wanted the blood types of her parents. She noted that she was an emergency medical technician and that she knew the blood types were not the same. She stated that her parents were type A and B blood, and she was type O, which was not possible. However, the Board does note that parents who have Type A and Type B blood may have a child with type O blood. (See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 232 (31st ed. 2007)). The Veteran's daughter testified that she did not attempt to locate her biological father for treatment of her child because it was unnecessary, but that she had tried to locate him and had been unsuccessful. In considering the entire claims file and the evidence above, the Board finds that the evidence regarding in-service occurrence of personal assault is at least in equipoise. On the one hand, the Veteran's service treatment and personnel records are negative for any evidence of personal assault. However, the Veteran has consistently provided details of her rape and that her behavioral effects included taking leave after the incident and recovering in the barracks. The service personnel records do reflect that the Veteran took two separate periods of leave - one in January 1963 (after the alleged rape) and another in February 1963. The service personnel records do show that the Veteran took a typewriting examination during the time in which she stated that she was confined to her barracks. However, in an October 2012 statement, the Veteran explained that she was permitted to leave her barracks to take the January 18, 1963 typewriting test, for which she had been studying. In addition, the Veteran's statements have been supported by statements from her ex-husband and daughter. Her daughter stated that the Veteran told her that she was a product of rape and that she was raped during her period of active service. The Veteran's ex-husband submitted a statement and explained that the Veteran told him that she was raped in January 1963 and they married in June 1963. He stated that the baby was born on October [redacted], 1963 and he accepted and raised the child as his own. He said that the Veteran saw a psychiatrist for the first two years of their marriage because of the rape and did not think she ever recovered from what happened to her. The Board acknowledges that the Veteran testified that the rape occurred before January 16, 1963. The service treatment records show that the Veteran reported having her period on January 16, 1963 and January 28, 1963 (after her assault). Even assuming arguendo that the rape did not culminate in a pregnancy, the Board nonetheless finds that the evidence consisting of the Veteran's statements and the lay statements submitted in connection with her claim, along with her requests for leave, is in equipoise, and as such, the Board will resolve any doubt in favor of the Veteran. In view of the foregoing, the Board finds that the in-service personal assault has been corroborated. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.304(f)(5). As there is corroboration of the in-service assault and a diagnosis of PTSD, the question is whether the PTSD has been linked to her in-service assault. The medical evidence shows that the Veteran's diagnosis of PTSD is based on her in-service sexual trauma. See VA treatment records. Therefore, service connection for PTSD is granted. 38 C.F.R. §§ 3.102, 3.304. ORDER Service connection for PTSD is granted. REMAND With respect to the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for a right eye disability, the Board finds that additional development is required. The Veteran has reported that she has additional right eye disability as a result of cataract surgery that was performed at the Detroit VA Medical Center (VAMC) in August 2008. The Veteran's claim was remanded in September 2011 for additional development. The Board requested that the examiner who conducted the December 2008 VA eye examination provide an opinion as to whether it was at least as likely as not that the Veteran sustained a right eye disability that was caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on part of VA in performance of the August 15, 2008 extracapsular cataract extraction with intraocular lens implantation and anterior vitrecomy of the right eye and whether it is at least as likely as not that the consequences of the August 15, 2008 cataract surgery were or were not reasonably foreseeable. An opinion was provided in October 2011. The examiner listed diagnoses of dry eye, upper lid ptosis, and photopsias. The examiner stated that the complications the Veteran described since the cataract surgery in the right eye are all side effects/risks of cataract surgery. The examiner stated that it was indicated in the operative report that the surgeon reviewed the risks of the surgery with the patient, but the examiner could not comment on which risks were reviewed with the Veteran as the consent form was not in the claims file. In reviewing the claims file, the Board observes that the evidence of record contains the August 2008 operative report and the surgeon who performed the surgery noted that the risks of the operation were discussed with the Veteran and the Veteran consented. However, while the operative report and records from the Detroit VAMC are included in the claims file, the consent form is not. The VA examiner indicated that the diagnoses related to the Veteran's right eye are known risks of the Veteran's surgery, but without the consent form in the claims file, the examiner was unclear as to what risks were discussed with the Veteran. Therefore, the Board finds that efforts must be made to obtain the consent form with respect to the August 15, 2008 surgery at the Detroit VAMC to determine if the now diagnosed eye disabilities were discussed with the Veteran as risks of the August 2008 surgery. Finally, the Board also finds that a new VA examination should be provided to the Veteran. As noted above, the October 2011 opinion is incomplete as the examiner indicated that without review of the consent form, it was unclear as to what risks of the August 2008 surgery were discussed with the Veteran. VA regulations provide that to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). The issue of informed consent has been raised and, therefore, an examiner should be given the opportunity to review the consent form in order to provide a medical opinion regarding whether VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. In addition, the Veteran submitted a statement in November 2012. The Veteran stated that the VA examination report and medical opinion only mentioned her dry eye, ptosis, and photopsias. She explained that the stitch left in her eye has been the problem during her entire appeal and it has been overlooked. She stated that every time she returned to the VA Hospital to remove it, they kept stating that it was too soon to take out. She believed the stitch is what is causing the pain and discomfort in her eye. In light of the above, the Board finds that the Veteran should be afforded a new VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should secure complete copies of the records from the Detroit, Michigan VAMC (not already associated with the claims file), to specifically include the informed consent form(s) for the Veteran's August 2008 cataract surgery. All attempts to obtain these records should be documented in the file. The Veteran is to be notified of unsuccessful efforts, and allowed the opportunity to obtain and submit those records for VA review in accordance with 38 C.F.R. § 3.159(e) (2012). 2. Following the above, the Veteran should be afforded a new VA examination. Any indicated studies and tests should be completed. The examiner should list all diagnoses related to the Veteran's right eye to include the Veteran's reported symptoms related to a stitch in her right eye. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran sustained a right eye disability that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performance of the August 15, 2008 extracapsular cataract extraction with intraocular lens implantation and anterior vitrecomy of the right eye. The examiner must also provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the consequences of the August 15, 2008 cataract surgery were or were not reasonably foreseeable. In doing so, please note review of the informed consent form and whether any treatment was rendered without the Veteran's informed consent. The VA examiner is requested to provide a thorough rationale for any opinion provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Thereafter, readjudicate the issue on appeal of entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs