Citation Nr: A21018014 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 210625-168528 DATE: November 9, 2021 ORDER The claim for compensation under 38 C.F.R. § 1151 for post-traumatic stress disorder (PTSD), persistent depressive disorder, and alcohol use disorder (herein PTSD) is denied. FINDING OF FACT The record does not show, nor has the Veteran alleged, that he sustained any additional psychiatric disability, to include PTSD, as a result of hospital care, medical or surgical treatment, or examination furnished under any law administered by the Secretary. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for PTSD are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to November 1988. In a May 2021 rating decision, the above listed issue was denied. In a June 2021, VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected to appeal that decision to the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to compensation under 38 C.F.R. § 1151 for PTSD The Veteran contends that he incurred PTSD as a result of a sexual assault that took place while he was living in-patient at a VA medical center (VAMC). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability is a qualifying disability if it was not the result of the veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and (2) the proximate cause of the disability was (A) careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. In this case, as a February 2021 VA examiner has determined, there is no question that the Veteran's PTSD is related to the sexual assault that occurred while he was living in-patient in a VA facility. The question at hand is whether the disability was caused by VA hospital care, medical or surgical treatment, or examination. To this point, the Veteran notes that he was placed on a significant amount of medication at the time, which he seems to allege reduced his situational awareness and his ability to defend himself, and that he was permitted to shower in the evening by VA staff. The Board finds that there is no evidence demonstrating that the care provided by VA, including in prescribing the medication the Veteran was taking at the time or allowing him to shower in the evening, led to or caused the sexual assault. Further, the Veteran does not assert, nor does the evidence demonstrate, that he was prescribed an incorrect dosage or type of medication. Finally, there is no evidence that allowing the Veteran to shower at night was against VA policy or somehow an error in judgment, carelessness, or negligence on the part of his VA medical providers or staff. The February 2021 VA examiner concluded that the sexual assault that led to the Veteran's PTSD was not caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary. The examiner noted that there was no indication that hospital policy was violated in allowing the Veteran to shower at night. Rather, the examiner noted, it appeared to be an attempt to properly treat the Veteran as he preferred to isolate himself. The examiner stated that there also does not seem to be a correlation between showering late and sexual assault. In this case, the clinical evidence contains no indication whatsoever that the appellant has any disability as a result of VA hospital care, medical or surgical treatment, or examination. Indeed, he does not contend otherwise. Rather, he has asserted that VA care led to his being less able to respond to the sexual assault or defend himself. Again, the Veteran has not at any time during the appellate period pointed to any additional psychiatric disability caused by VA care or examination. Given the Veteran's contentions and the evidence of record, the Board finds no basis on which to award compensation under 38 U.S.C. § 1151. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.