Citation Nr: 1456251 Decision Date: 12/23/14 Archive Date: 01/02/15 DOCKET NO. 12-10 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a low back disorder. ATTORNEY FOR THE BOARD T. Carter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to July 1994 with additional service in the Air Force Reserves from July 1994 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran submitted an April 2012 substantive appeal and requested a personal hearing before the Board at the RO. A hearing was scheduled for October 2014, but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn, and the Board may proceed with review of the claim. 38 C.F.R. § 20.704(d) (2014). This appeal was processed using the Virtual Benefits Management System (VBMS) and the Virtual VA electronic claims file. Accordingly, any future consideration of the case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is required for the AOJ to verify all of the Veteran's periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA) during his service in the Air Force Reserves from July 1994 to April 2004. The Veteran contends that he injured his back while working with heavy equipment without back support during service. The Veteran's service treatment records (STRs) show that on November 5, 1994 he complained of and was treated for back pain with lifting secondary to his missile management position on active duty. The Veteran has been diagnosed with intermittent backache due to back sprain by the December 2010 VA examiner and lumbar strain in July 2008 by a private treating physician during the pendency of this appeal. Nevertheless, questions remain as to whether his November 1994 documented complaint and treatment for his back was during a period of qualifying active military service, either ACDUTRA or INACDUTRA. Review of the file reveals that his DD Form 214 documents active duty service in the Air Force from October 18, 1991 to July 28, 1994. A June 1994 Air Force Form 100 (Request and Authorization for Separation) indicates the Veteran was released from active duty and transferred to Reserves of the Air Force (RESAF) effective on July 28, 1994. A May 2004 Discharge Order notes the Veteran was honorably discharged from the Air Force Reserves effective April 6, 2004. Most recently, on the February 2010 VA Form 21-526 (Application for Compensation and/or Pension Benefits), the Veteran indicated he served his second period of active duty in the Air Force from November 17, 1994 to April 12, 1995. At this time, the evidence currently of record does not contain his complete service personnel records (SPRs) and does not specify when he was on active duty, ACDUTRA, and INACDUTRA during the period from July 1994 to April 2004, which includes the most relevant time in question when he complained of and received treatment for his low back in November 1994. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). Active military service includes disability resulting from injury or disease incurred in or aggravated during active duty and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during INACDUTRA or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (24), 106 (West 2014); 38 C.F.R. § 3.6(a), (d) (2014). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as "weekend warrior" training. These drills are deemed to be part-time training. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "veteran" for other periods of service (e.g., the veteran's prior period of active duty) does not obviate the need to establish that he is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See id.; Paulson, 7 Vet. App. at 470. Thus, the Board finds that, in order to properly adjudicate his claim of entitlement to service connection for chronic lower back disorder with back spasms, all periods of active duty, ACDUTRA, and INACDUTRA must be verified. Accordingly, the case is REMANDED for the following actions: 1. Contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, ACDUTRA, and INACDUTRA from July 1994 to April 2004. Document for the claims file what repositories were contacted and why. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. All outstanding service personnel records also should be obtained and associated with the claims file. Records concerning service merely denoting the amount of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). The AOJ, therefore, must make as many attempts for these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1) (2014). 2. After completing the above action, conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph. 3. When the development has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 of Veterans' Appeals or by the United States 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 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).