PREC 1-99    Interpretation of 38 U.S.C. § 1151 and 38 C.F.R. § 3.358; Psychiatric Disability Resulting from Assault During Examination or Treatment   Citation:  Vet. Aff. Op. Gen. Couns. Prec. 1-99,  VAOPGCPREC 1-99, 1999 

a. May compensation be paid under 38 U.S.C. § 1151 for disability incurred or aggravated as the result of a sexual

assault by a Department of Veterans Affairs (VA) physician which occurred while a veteran was receiving an examination or medical treatment at a VA facility?

b. May compensation be paid under 38 U.S.C. § 1151 for a psychiatric disability incurred or aggravated as the result of a VA examination or medical treatment, or is compensation under those provisions limited to incurrence or aggravation of physical disability?

a. Section 1151 of title 38, United States Code, as applicable to claims filed before October 1, 1997, does not authorize payment of compensation for disability incurred or aggravated as the result of a sexual assault by a Department of Veterans Affairs (VA) physician which occurred while a veteran was

receiving medical treatment or an examination at a VA facility. For purposes of compensation under those provisions,

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. § 1151 and would not provide a basis for compensation under those provisions. However, 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 section 1151. Accordingly, it may be necessary to make factual determinations in individual cases as to whether the actions or procedures alleged to have caused disability constituted part of "medical treatment" or "examination" or were independent actions merely coincidental with such treatment or examination.

b. VA may pay compensation under 38 U.S.C. § 1151 for psychiatric disability due to a disease or injury incurred or aggravated as a result of VA hospitalization, medical or surgical treatment, examination, or vocational rehabilitation.