Citation Nr: 21072803 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-38 190 DATE: December 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for fibromyalgia secondary to an acquired psychiatric disorder is denied. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for service connection for fibromyalgia secondary to an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. FINDINGS OF FACT 1. An acquired psychiatric disorder was not manifested during a period of active service, was not aggravated by a period of active duty for training (ACDUTRA), did not manifest to a compensable degree within one year following discharge from a 90-day or more period of active service, and is not otherwise etiologically related to active service. 2. The Appellant's fibromyalgia was not caused or aggravated by a service-connected disability. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served in the Air National Guard from November 2006 to April 2011. In September 2020, the Appellant testified at a virtual hearing before the undersigned. In March 2021, the Board remanded the issues for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ACDUTRA) or injuries incurred during inactive duty for training (INACDUTRA). See 38 U.S.C. §§ 101 (24), 106 (2012); 38 C.F.R. § 3.6 (2019). Service connection is not legally merited when the disability results from a disease process during INACDUTRA. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). ACDUTRA is full time duty for training purposes performed by Reservists and members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and members of the National Guard pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) The Appellant contends that she was the victim of a sexual assault during a period of active duty service resulting in an acquired psychiatric disorder, including PTSD. During the September 2020 Board hearing, the Appellant testified that on October 30, 2008 she was drugged and then assaulted by several men. She stated that she thinks she was on active duty status during the time of the assault. but was not sure, as she has not been able to obtain the necessary documents. In March 2021, the Board remanded the issues to obtain the soldier detail report or any other evidence verifying the Appellant's periods of active duty, active duty for training (ADT), or inactive duty for training (IDT) in the Massachusetts Air National Guard on October 30, 2008. An October 2014 periods of service information report shows the Appellant served in the National Guard from November 28, 2006 to April 8, 2011. She was on active duty in the National Guard from March 13, 2007 to September 1, 2007 and October 15, 2007 to April 1, 2008. No other periods of ACDUTRA or INACDUTRA are shown or verified. Based on the service records concerning the Appellant's dates of activation in the Air National Guard, there is no indication that on October 30, 2008 (the date of the claimed assault), she was on active duty, ACDUTRA, or INACDUTRA. As such, service connection is not warranted for an acquired psychiatric disorder as there is no competent evidence of a nexus between any diagnosed acquired psychiatric disorder and a period of active duty service, including a period of ADCUTRA. If the Appellant is able to obtain any orders or other official documentation that establishes she was on active duty, ACDUTRA or INACDUTRA (as opposed to status as a civilian worker) on the date in question, the Board strongly urges her to file a supplemental claim. In sum, since the evidence does not establish that the Appellant's claimed injury occurred during a period of active duty, ACDUTRA, or INACDUTRA the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for fibromyalgia secondary to an acquired psychiatric disorder to include PTSD The Appellant contends that she has a diagnosis of fibromyalgia that was caused by an acquired psychiatric disorder to include PTSD. Specifically, the Appellant testified that she was told by her physician that her fibromyalgia may be a result of a traumatic event, which she deduced was the claimed sexual assault. Unfortunately, service connection for an acquired psychiatric disorder has not been established, therefore, the question of secondary service connection for fibromyalgia is moot. The Appellant has specifically claimed service connection for fibromyalgia as due to and acquired psychiatric disorder. Therefore, direct service connection for fibromyalgia will not be considered. In light of the foregoing discussion, the Board finds the preponderance of the evidence is against a finding that the Appellant has a fibromyalgia disability that was caused or aggravated by a service-connected disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.