Citation Nr: 23065232 Decision Date: 12/08/23 Archive Date: 12/08/23 DOCKET NO. 20-13 530 DATE: December 8, 2023 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma (MST), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army Reserve from July 2002 to October 2002. The Veteran had additional periods of active duty for training (ADUCTRA) and inactive duty for training (INACDUTRA) in the U.S. Army Reserve from October 10, 2001, to March 1, 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, it is noted that the Veteran submitted copies of a few of her military personnel records showing that she was released from the U.S. Army Reserve, effective March 1, 2005, under conditions Other Than Honorable (OTH). See March 2020 Third Party Correspondence. With some exceptions, an OTH discharge is generally a bar to VA compensation benefits for claims based on that period of service. In this case, the record does not contain any Administrative Decision or finding issued by the agency of original jurisdiction (AOJ) addressing the Veteran's eligibility for VA compensation benefits for claims arising from the Veteran's multiple periods of ACDUTRA or INACDUTRA. Although the Veteran-provided military personnel records were received by VA after the appeal had been certified to the Board, as explained below, the AOJ did not attempt to verify all the Veteran's periods of ACDUTRA and INACDUTRA and did not take sufficient steps in attempting to obtain her complete military personnel records. In March 2022, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The record was held open for 60 days to allow for the submission of additional evidence. Subsequently, no additional argument or evidence was received by VA. The Veteran contends that her PTSD is due to a MST that occurred in May 2003 during Army Reserve annual training at Fort Hunter Ligett. See e.g., August 2016 Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault & August 2016 21-526EZ Application for Disability Compensation and Related Compensation Benefits. The Veteran asserts that she was sexually assaulted by two servicemembers, one of whom served in her unit, and when she reported the assault to a female superior in 2004, and requested a transfer to another unit, she was discouraged from reporting it. The Veteran maintains that she began to be absent from Reserve training as a consequence of the psychological impact of the MST and lack of support from the military. The Board finds that remand is required to obtain the Veteran's complete military personnel records and verify her periods of ACDUTRA and INACDUTRA. The term "active military, naval, or air service" is defined to include active duty and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). ACDUTRA includes full time duty in the Armed Forces performed by members of the Reserves for training purposes. 38 C.F.R. § 3.6(c). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 C.F.R. § 3.6(d). Annual training is an example of ACDUTRA. Here, although the Veteran was diagnosed with PTSD due to MST at a December 2016 VA examination, and the examiner opined PTSD is at least as likely as not related to the Veteran's claimed in-service stressor, the Board finds there is insufficient evidence to establish she was serving on ACDUTRA at the time of the reported sexual assault. Furthermore, relevant military personnel records that would aid in substantiating the Veteran's claim have not been requested by the AOJ. First, it appears that the AOJ did not verify whether the Veteran was on ACDUTRA in May 2003 at Fort Hunter Liggett. In fact, there is no indication the AOJ attempted to verify any of the Veteran's dates of ACDUTRA and INACDUTRA from October 2001 to March 2005. Rather, the claims file contains verification that the Veteran served in the U.S. Army Reserve from October 10, 2001, to March 1, 2005, but there is no additional information regarding her service dates for ACDUTRA within that timeframe. See e.g., September 2016 Web/HTML Documents & December 2019 Military Personnel Records Information Report. Moreover, although the claims file contains a copy of the Veteran's Chronological Statement of Retirement Points, dated October 2004, showing the Veteran had 24 active-duty points and 31 inactive duty points between October 10, 2002, and October 9, 2003, it does not list the specific dates of ACDUTRA and INACDUTRA and is therefore insufficient in establishing the Veteran was on active duty in May 2003 when she reportedly was sexually assaulted. See November 2016 Correspondence. Moreover, while the claims file contains some military personnel records and service treatment records, they are largely related to the Veteran's period of active-duty in 2002, and therefore, are dated prior to the occurrence of the reported MST. The Veteran submitted a January 2005 Notice of Separation Proceedings for Unsatisfactory Participation in the Ready Reserves issued by the 3rd Battalion, 413th Regiment, 7th Brigade, 104th Division in Pasadena, CA. The reasons cited for initiating her separation under OTH conditions were "Failure to attend required unit training assemblies; accumulation of 21 unexcused absences; failure to respond to repeated attempts at contact." See March 2020 Third Party Correspondence. However, the Board observes that there are no service records pertaining to the underlying personnel actions associated with the separation proceedings and characterization of her service as OTH. In addition, it is noted that there may be outstanding military personnel records evidencing the Veteran's request to transfer to another Reserve unit after May 2003. As such, the Board finds the Veteran's military personnel records are incomplete and should be obtained on remand. Given the foregoing, remand is necessary to obtain the Veteran's complete service personnel records and verify all periods of ACDUTRA and INACDUTRA. The matter is REMANDED for the following action: 1. Verify all periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). The specific dates, not retirement points, for all of the Veteran's periods of ACDUTRA and INACDUTRA should be identified. It should be specifically determined whether the Veteran had ACDUTRA in May 2003. 2. Obtain the Veteran's complete service treatment and military personnel records pertaining to her service in the U.S. Army Reserve, to include all documents associated with her separation on March 1, 2005, for which she received an "Other Than Honorable Conditions" discharge. Requests for such records should be made to all appropriate repositories, including a request to the Veteran's U.S. Army Reserve unit shown as 3rd Battalion, 413th Regiment, 7th Brigade, 104th Division in Pasadena, CA. All efforts to obtain the records must be documented in the claims file. (CONTINUED ON NEXT PAGE) 3. After the development above has been completed, the AOJ should issue an Administrative Decision as to whether the Veteran's "Other Than Honorable Discharge" from the U.S. Army Reserve prohibits her from receiving VA compensation benefits. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.