Citation Nr: 1433410 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 09-03 636A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a hernia condition. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The appellant served in the United States Naval Reserve between May 1984 and November 1989. He had periods of active duty for training (ACDUTRA) from May 1984 to July 1984 and from June 1986 to October 1986. He also had several verified periods of inactive duty for training (INACDUTRA). In addition, according to DD Forms 1966/3, 1966/6, and 1584 in his service personnel records, the appellant attended Kemper Military School in Boonville, Missouri, from January 1982 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The current record before the Board consists of a paper claims file and electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The issue was remanded by the Board in December 2011 and May 2013 for additional development. It is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This case primarily involves a question of the appellant's status as a Veteran for the purposes of his eligibility for VA benefits. On his VA Form 21-526, submitted to the RO electronically in June 2007, the appellant claimed service connection for a hernia for which he stated he was treated from August 1984 to November 1984 at George Washington Hospital in Washington, D.C., and at the National Naval Medical Center (NNMC) in Bethesda, Maryland. (His service treatment records do include documents from both these hospitals about his hernia). In his notice of disagreement (NOD) dated in February 2008, the appellant contended that, in denying his claim, the RO "did not note my U.S. Army [ROTC] service at Fort Knox in Kentucky, which was served prior to my November 1983 enlistment in the U.S. Naval Reserve." He further stated that the RO "admits that '[my] service treatment records show that [I] underwent bilateral hernia repair in November 1982, approximately one year prior to [my] enlistment into the Navy reserve' but did not note that the November 1982 surgery was after my leaving the Army ROTC due to hernia related pains caused by and, then, later aggravated by U.S. Naval Reserve training." In December 2011, the Board remanded the claim for the RO to attempt to verify the specific dates of ACDUTRA and INACDUTRA to include the claimed period or periods of training with the ROTC in 1982. The Board remanded the claim again in May 2013 in order for VA to contact the U.S. Army ROTC program at Fort Knox, Kentucky, to verify the specific dates of the appellant's claimed period(s) of training with the ROTC in 1982, and to contact the U.S. Naval Reserve to verify the specific dates of the appellant's ACDUTRA and INACDUTRA. Pursuant to these remand orders, the RO obtained the appellant's service personnel records which included DD Forms 1966/3, 1966/6, and 1584 which showed that he attended Kemper Military School in Boonville, Missouri, from January 1982 to November 1982. Although it shut down in 2002, Kemper was for many years one of six military junior colleges that participated in the Army's two-year Early Commissioning Program (ECP), an Army Reserve Officers' Training Corps (ROTC) program through which a qualified student could earn a commission as a second lieutenant after only two years of college. The RO stated in the June 2014 statement of the case that "ROTC students are not considered to be on ACDUTRA or INACDUTRA while in this program and as such are not entitled to benefits for any disability incurred as they are not considered to be on military service." However, this statement appears not to be accurate based on amendments to the law in 1982 when the term "active duty for training" in section 3.6 of VA regulations was amended to include duties performed by members of the Senior Reserve Officers Training Corps. The pertinent subsection of that regulation provides that ACDUTRA includes: (4) Duty performed by a member of a Senior Reserve Officers' Training Corps program when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 U.S.C. (i) The requirements of this paragraph are effective-- (A) On or after October 1, 1982, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated after September 30, 1982, and (B) October 1, 1983, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982. (ii) Effective on or after October 1, 1988, such duty must be prerequisite to the member being commissioned and must be for a period of at least four continuous weeks. 38 C.F.R. § 3.6(c)(4). In addition, the term "inactive duty for training" includes training (other than active duty for training) by a member of, or applicant for membership (as defined in 5 U.S.C. 8140(g)) in, the Senior Reserve Officers' Training Corps prescribed under chapter 103 of title 10 U.S.C. 38 C.F.R. § 3.6(d)(3). Since the appellant alleges that his hernia, which service treatment records show was surgically repaired in November 1982, "was after my leaving the Army ROTC due to hernia related pains caused by and, then, later aggravated by U.S. Naval Reserve training", the Board concludes that additional remand is warranted to attempt to determine whether the appellant's attendance at Kemper Military School constituted ACDUTRA or INACDUTRA under section 3.6. Moreover, it appears that the appellant's record of drilling, which comprises INACDUTRA, was obtained through a request from the Defense Finance and Accounting Services (DFAS) at the Cleveland Center. Verification of appellant's specific dates of ACDUTRA has still not been accomplished. This must be rectified on remand. A February 2014 VA Form 27-0820 documents that a call was made to the Fort Knox ROTC to verify the specific dates of the appellant's claimed period(s) of training with the ROTC in 1982. The contact at Fort Knox indicated that the appellant's records were not there and that they were archived after seven years. It was suggested that a request be made to NARA to see if they had the records. The person who contacted Fort Knox indicated that they would contact NARA, but no such request appears in the record. Rather, a May 2014 memorandum indicates that the development directed by the Board regarding verification of the specific dates of the appellant's claimed period(s) of training with the ROTC in 1982 was misdirected since 38 C.F.R. § 3.6 indicates that "ROTC students are not considered to have been on active or inactive duty, nor are considered to have performed active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA)." The memorandum also indicated that no further action was required. A noted above, the May 2014 memorandum is incorrect as it pertains to ACDUTRA and INACDUTRA. Given the regulations pertaining to senior ROTC candidates, the actions directed by the Board in May 2013 must be accomplished on remand. The appellant submitted some additional records in May 2014 that indicate he underwent a hernia repair at St. Elizabeth Health Center. As the claim is being remanded for the foregoing reasons, efforts should be made to obtain the appellant's complete records from this facility. Accordingly, the case is REMANDED for the following action: 1. Verify the appellant's attendance at Kemper Military School from January 1982 to November 1982 and determine whether any such attendance constituted participation in Senior ROTC and whether that participation constituted ACDUTRA or INACDUTRA under section 3.6 of VA regulations. 2. Contact NARA, as instructed by the U.S. Army ROTC program at Fort Knox, Kentucky, see February 2014 VA Form 27-0820, in order to verify the specific dates of the appellant's claimed period(s) of training with the ROTC in 1982. If no records or information can be found, indicate whether the records or information does not exist and whether further efforts to obtain the records or information would be futile. Document all efforts made in this regard. 3. Contact the U.S. Naval Reserves to verify the specific dates of the appellant's ACDUTRA. The U.S. Naval Reserves must be informed that service records providing retirement points are usually not helpful in this regard. If no records or information can be found, indicate whether the records or information does not exist and whether further efforts to obtain the records or information would be futile. Document all efforts made in this regard. 4. Ask the appellant to provide the requisite authorization for the release of his complete records related to a hernia repair from St. Elizabeth Health Center. 5. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the appellant a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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 by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).