Citation Nr: 0915548 Decision Date: 04/24/09 Archive Date: 04/29/09 DOCKET NO. 06-37 401A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right salpingo- oophorectomy. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Patner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978, and from January 1997 to November 2002, during which time she served on active duty in the Army National Guard of the United States. The Veteran had additional service in the Army National Guard and the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for a right salpingo-oophorectomy and PTSD. The issue of entitlement to service connection for PTSD is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran underwent a right salpingo-oophorectomy due to chronic pelvic pain with dyspareunia while on active duty. CONCLUSION OF LAW The Veteran's right salpingo-oophorectomy was the result of a disease or injury incurred in or aggravated during her active military service. 38 U.S.C.A. §§ 101(21), 101(22)(C), 101(24)(B), 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 1131 (West 2002); 38 C.F.R. § 3.303 (2008). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). However, the Veteran's dyspareunia with chronic pelvic pain is not a disease for which service connection may be granted on a presumptive basis. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2008). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2008). Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2008). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2008). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). Active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Service medical records reflect that in June 2001, the Veteran reported experiencing dyspareunia for approximately one year. She was noted to have undergone a hysterectomy in 1995. She had also had her left fallopian tube removed in 1981 due to an acute and subacute infection. On gynecological examination in June 2001, there was scar tissue noted in the right adnexa. Her dyspereunia was assessed as likely secondary to abdominal adhesions present at the prior surgical site. She was referred to a private gynecologist. In December 2001, private gynecological treatment records reflect that she complained of increasing lower abdominal pain for the previous three months, and that the dyspareunia had increased since her hysterectomy. It was felt on examination that there were some possible adhesions of the ovary to the vaginal cuff. That same month, she underwent a laparoscopy with lysis and a right salpingo-oophorectomy. The Veteran separated from service in November 2002, and, in December 2002, she underwent a VA gynecological examination to evaluate her claim for service connection. At that time, she reported that ever since the age of 20 she had experienced intermittent, stabbing pain in the abdominal region. The pain resolved following the removal of her ovary in 2001. She was currently taking Estrace for vasomotor symptoms. The impression was status post total hysterectomy with bilateral salpingo-oophorectomy for pelvic pain, now resolved. Service personnel records reflect that, at the time of the December 2001 operation, the Veteran was employed as an administrative and legal specialist with the Army National Guard of the United States (ANGUS). Her service separation papers reflect that she served on Active Duty Special Work with the Army/ANGUS as part of the Counterdrug Task Force form January 1997 to November 2002. Her November 2002 separation from service was characterized as a "release from active duty." In Allen v. Nicholson, 21 Vet. App. 54 (2007), the Court of Appeals for Veterans Claims summarized active duty in relation to National Guard service, first explaining that "active duty" is defined as "full-time duty in the Armed Forces, other than active duty for training." 38 U.S.C.A. § 101(21). "Armed Forces" describes "the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof." 38 C.F.R. § 101(10). The reserve components include the Army National Guard of the United States. 38 U.S.C.A. § 101(27)(F). The Army National Guard is only a reserve component "while in the service of the United States." 10 U.S.C.A. § 10106. Section 12401 of title 10, U.S. Code, provides that "members of the Army National Guard of the United States and the Air National Guard of the United States are not in active Federal service except when ordered thereto under law." 10 U.S.C. § 12401. Members of the Army National Guard of the United States who are ordered to active duty shall be ordered to duty as Reserves of the Army. 10 U.S.C.A. § 12403. A member of the National Guard holds a status as a member of the federal military or the state militia, but never both at once. See Perpich v. Department of Defense, 496 U.S. 334 (1990) ("[National Guard members] now must keep three hats in their closets--a civilian hat, a state militia hat, and an army hat--only one of which is worn at any particular time."). In this case, the Veteran's service separation papers reflect that she served on active duty with the Army/ANGUS. It follows that, as an active duty member of the Army National Guard of the United States, her service is considered to be a reserve component of the Armed Forces, and falls under the definition of "Armed Forces" for the purposes of establishing active duty. 10 U.S.C.A. § 10106. Therefore, she may be service connected for a disease or injury that occurred during her active military service. Her right salpingo-oophorectomy in December 2001 was a result of a chronic condition that she incurred while on active duty, and therefore she is entitled to service connection for the condition on a direct basis. 38 C.F.R. § 3.303. However, even if the Veteran was not considered to be on Federal active duty during her period of service, and instead was serving in the Army National Guard as a civilian, the Board finds that she is also entitled to service connection for a right salpingo-oophorectomy under this alternative theory, because such service would fall into the category of active duty for training purposes. Active duty for training purposes as a member of the Army National Guard means full- time duty under section 316, 502, 503, 504, or 505 of title 32 U.S.C.A. § 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. While it is unclear to the Board after a review of the Veteran's service personnel records whether she engaged in the drills and exercises set out in the above statutes, it is clear from a review of her Army National Guard Retirement Credits that she completed 365 days of active duty in 2001, which encompasses her diagnosis, treatment, and surgery. Further, her service cannot be categorized as inactive duty for training purposes. Inactive duty for training in the National Guard is defined as when the training is other than full-time duty. 38 U.S.C.A. § 101(23)(C). In the case of inactive duty, service connection may be granted for an injury, not a disease, incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). In this case, however, the Veteran's service for the entire year of 2001 has been coded as Army National Guard Active duty under Title 32 USC, State Controlled. Therefore, the Veteran is entitled to service connection for an injury or a disease incurred or aggravated while performing active duty training, including a right salpingo-oophorectomy. Here, the evidence of record reflects that the Veteran complained of dyspareunia and chronic pelvic pain in December 2001 and was then referred to a private physician. She underwent a right salpingo-oophorectomy as a result of these symptoms and complaints. While the Veteran had previously undergone a hysterectomy in 1991 and had a left fallopian tube removed in 1981 due to an acute and subacute infection, there is no evidence of record to suggest that her 2001 condition was a natural progress of a disease related to these past surgeries and which would have pre-existed her service. 38 U.S.C.A. § 3.306(a). Significantly, the 2001 medical records do not relate the condition with her previous operations or conditions, but rather simply note that she had undergone such surgeries. Therefore, the Board finds that the Veteran's surgery was due to a condition that was incurred during active service. Accordingly, in concluding that the Veteran was on active duty or active duty for training when she underwent a right salpingo-oophorectomy, and that the surgery was due to chronic pelvic pain that the Veteran had experienced for approximately one year while on active duty, and in resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for a right salpingo-oophorectomy is warranted. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right salpingo-oophorectomy is granted. REMAND Additional development is needed prior to further disposition of the claim for service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); 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. Because the Veteran is alleging physical and sexual abuse, evidence from sources other than her service records may corroborate her 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 testing 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. Example of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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 behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). In this case, the Veteran contends that she was sexually assaulted by one of her captains in 1975, shortly after she entered service. She alleges that she told her first sergeant the following day, but that he did not act on the allegation and instead told her to "go back to work and shake it off." The Veteran did not tell anyone else of the incident and tried to move on. She contends that, as a result of the assault, she requested a transfer to a new unit and was granted such a transfer a year later. She also alleges that she went to the health clinic immediately following the assault for medication in case she had contracted an STD. She contends that the sexual assault has impacted her negatively on a variety of levels, in that it has lead to failed marriages, her current depression, and her difficulty in maintaining healthy relationships. A review of the Veteran's service medical records reflects that in September of an undated year, perhaps in 1976, the Veteran reported having vaginal discharge and mild dysuria. The assessment was vaginitis. In May 1978, the Veteran reported a painful vaginal infection that was itchy, with no real discharge. She stated that she had had Herpes previously. She was prescribed an anti-bacterial medication. An August 1999 service medical record indicates that the Veteran reported a loss of desire to do things she normally enjoyed. It was difficult for her to get ready for work. She noticed an increase in her sleep pattern and stated that she sometimes slept 15 to18 hours a day on the weekends. She denied any suicidal or homicidal ideations. She was described to be in fair spirits. She was assessed as questionably suffering from depression. A note for further evaluation was made, however, there are no further records pertaining to the Veteran's mental health. In January 2003, the Veteran underwent a VA psychological examination for the purposes of ascertaining whether she carried a diagnosis of PTSD based on the alleged sexual assault. However, although the examiner noted in the assessment that the Veteran "felt kind of forced into a physical relationship when she first got into the military," it does not appear as though the examiner questioned the Veteran further regarding this incident, nor did the examiner give any opinion as to whether the sexual assault occurred. At that time, the Veteran also stated that she was taking medication for depression. The examiner determined that the Veteran did not meet the DSM-IV criteria for PTSD, but was rather diagnosed with mild dysthymia. In July 2006, the Veteran underwent a mental health screening at the VA on her own initiative. At that time, in pertinent part, she stated that in the past three years she had experienced vivid flashbacks and dreams of the sexual assault. She felt that she was unable to control her mind and put things into perspective. She indicated that she had difficulty getting out of bed each day and that on some days she felt that she would rather be dead. The assessment was chronic PTSD due to sexual trauma. She was also diagnosed with recurrent and severe depression. An Axis IV diagnosis of severe stress was given. A change of medication was prescribed. In this case, the record includes a diagnosis of PTSD based upon sexual trauma; however, that diagnosis was not based upon a review of the Veteran's claims folder nor does the July 2006 or January 2003 examination report include a medical opinion as to whether the evidence indicates that a personal assault occurred. See 38 C.F.R. § 3.304(f)(3). As such, the Board finds that further examination, to include an opinion, is warranted. 38 C.F.R. § 3.159(c)(4) (2008). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA psychiatric examination with an examiner who has not previously examined the Veteran. The claims folder must be made available to the examiner for review in conjunction with the examination. The rationale for all opinions must be provided. a. The examiner should review the file and provide an opinion as to whether a diagnosis of PTSD is warranted, and if so, whether the PTSD diagnosis is based on the alleged sexual assault. If a diagnosis of PTSD is appropriate, the examiner should specify (1) the stressor sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more in-service stressors sufficient to produce PTSD. Any opinions expressed by the examiner must be accompanied by a complete rationale. b. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should instead be instructed to determine whether there is any relationship between any diagnosed psychiatric disorders and the Veteran's period of active service, and whether the acquired psychiatric disorder is related to the possible depression which the Veteran experienced in service. In determining the etiology of the Veteran's psychiatric disorders, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder is etiologically related to the possible depression the Veteran experienced during service or related to any incident of active service. If necessary, the examiner should attempt to reconcile the opinion with the medical opinions of record. 2. Then, readjudicate the claim for service connection for PTSD. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs