Citation Nr: 21022417 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-09 269 DATE: April 15, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The appellant was honorably discharged from the Army National Guard prior to completion of initial active duty for training with the United States Army from August 28, 1981 to December 1, 1981. The instant matter is on appeal from a May 2015 decision. The appellant testified at a hearing before the undersigned Veterans Law Judge in July 2019, and a transcript of the hearing is of record. In October 2019, the Board remanded the case for further development. The Board regrets the additional delay, but finds remand is once again necessary. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As an initial matter, the Board observes that the appellant’s July 2014 claim for entitlement to service connection for PTSD was denied on the grounds that she has no qualifying service for VA compensation benefits. As discussed further below, the Board finds the appellant’s service from August 28, 1981 to December 1, 1981 is considered Federal service. Therefore, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board notes that special rules apply to service connection claims based on National Guard and Reserve service. In order establish “veteran” status for the purpose of receiving VA benefits, a claimant must have served on active duty, or become disabled or died from a disease or injury incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 38 U.S.C. § 101(2), (24). Additionally, to establish basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, the claimant must have been ordered into Federal service by the President of the United States, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, 505. See Allen v. Nicholson, 21 Vet. App. 54, 58, 2007; see also 10 U.S.C. § 12401; see also 38 U.S.C. §§ 101(21), (22)(C). In this case, service records document that the appellant was performing initial active duty for training, or ACDUTRA, with the United States Army from August 28, 1981 to December 1, 1981. See NGB Form 22; see also November 1981 Proposed Separation Action (Discharge from the United States Army). Members of the National Guard of the State who are ordered into Federal service lose their status as members of the State militia during their period of active duty. See Perpich v. United States Department of Defense, 496 U.S. 334, 347 (1990). If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia in which the member has been temporarily disassociated. Id. Therefore, in light of the above, the appellant’s training with the Army from August 28, 1981 to December 1, 1981 is considered Federal service, and the threshold matter as to whether the basic criteria for the purpose of establishing entitlement to VA benefits has been met. Here, the appellant seeks to establish “veteran” status through her claim for entitlement to service connection for PTSD based on the above period of service. The appellant indicated that she witnessed the body of a fellow recruit that had committed suicide, that she witnessed drill sergeants beating another person, and that she and other female recruits were treated very poorly by drill sergeants. See July 2014 VA Form 21-4138. The appellant reported a long history of depression, anxiety and memory problems from when she was in the military in 1981. See April 2014 H.C. Mental Health Comprehensive Behavioral Health Assessment. In a February 1984 mental health assessment associated with Social Security Administration records, the psychiatrist noted the appellant received counseling twice per week from 1981 to 1983. To date, it does not appear an attempt has been made to confirm the appellant’s reported stressor of a fellow recruit having committed suicide through the service department or the VBA Records Research Center (RRC). The Board recognizes that the name of the alleged suicide victim has not been provided; however, the Board finds remand is necessary to attempt to obtain verification (e.g., casualty reports) of any suicides committed by recruits serving in the same unit as the appellant during the time period from August 28, 1981 to December 1, 1981. Additionally, the appellant reported experiencing depression and anxiety since 1981, and a February 1984 mental health assessment indicates the appellant receiving counseling twice per week from 1981 to 1983. As such, the Board has expanded the appellant’s claim for entitlement to service connection for PTSD to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim). The Board finds remand is necessary to afford the appellant a VA examination to assess the nature and etiology of any claimed acquired psychiatric disorder, to include PTSD. This matter is REMANDED for the following actions: 1. Attempt to obtain any report of casualty from appropriate repositories, to include the U.S. Army Casualty Office and/or RRC, documenting any recruit suicide at Company D, 1st Battalion, 3rd BT Bde, Fort Dix, New Jersey during the period from August 28, 1981 to December 1, 1981. Document all requests for information and responses in the claims file. If such records are unavailable, inform the appellant. 2. With any assistance needed from the appellant, attempt to locate and obtain the counseling records from 1981 to 1983, which are referenced in the February 1984 mental health assessment associated with Social Security Administration records. See 6/13/2016 Medical Treatment Records – Furnished by SSA, at 51. 3. After the development ordered above, schedule the appellant for a psychiatric examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. Following a review of the record, interview and examination of the appellant, the examiner should address the following: (a.) Identify/diagnose any current acquired psychiatric disorder (from approximately July 2014 to the present). (b.) If the appellant has a current diagnosis of PTSD, the stressor(s) supporting that diagnosis are to be identified. (c.) For each current psychiatric disorder identified, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had onset in, or is otherwise related to the appellant’s period of ACDUTRA from August 28, 1981 to December 1, 1981. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate 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.