Citation Nr: 1300736 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-13 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to basic eligibility for Department of Veterans Affairs (VA) compensation, to in turn establish service connection for residuals of a low back injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant was enrolled as a cadet in the Senior Reserve Officers' Training Corps (ROTC) at Florida Institute of Technology from August 1998 to June 2001. This appeal to the Board of Veterans' Appeals (Board) is from a July 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Appellant's claim for service connection for residuals of a low back injury, because she did not have qualifying active military, air or naval service. Additional service department records were received in October 2007, and the matter was readjudicated in December 2007. See 38 C.F.R. § 3.156(c) (2012). She filed a timely appeal. Jurisdiction over her claim was subsequently transferred to the RO in Roanoke, Virginia. In November 2011, the Board remanded the claim for additional development. The appellant testified at a VA Central Office hearing in Washington, D.C. (Board hearing) in September 2011 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. FINDINGS OF FACT 1. The appellant was enrolled as a cadet in the Senior Reserve Officers' Training Corps (ROTC) at the Florida Institute of Technology from August 1998 to June 2001. 2. The appellant sustained an injury to her low back in September 1998, which is not considered a period of active duty, ACDUTRA or INACDUTRA. CONCLUSION OF LAW Basic eligibility for Department of Veterans Affairs (VA) compensation is not established. 38 U.S.C.A. §§ 101, 106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(d), 3.6 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that her low back disorder resulted from a low back injury in the course of engaging in training as part of the Army Senior ROTC. In particular, she asserts she sustained a low back injury in September 1998, while performing "full sit ups" during physical training in ROTC at the Florida Institute of Technology. She argues that her claim for Worker's Compensation has been denied (a copy of the denial is not of record), and that her injury should be service-connected. In July 2006, the RO denied the appellant's claim, stating that she did not have status as a veteran. Additional service department records were received, the RO again denied the claim in December 2007. Only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131. Service connection may be granted when the Veteran has a disability as the result of a disease or injury incurred or aggravated by active military, naval, or air service that is not the result of the Veteran's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131 (2012). A "veteran" is an individual who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2012). The term "active military, naval, or air service" includes not only active duty, but also any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). A service connection claim based on a period of ACDUTRA must be based on a showing that a disease or injury was incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C.A. § 101(2)-(24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Regarding Senior ROTC candidates, the term ACDUTRA means duty performed by a member of a program when ordered to such duty for purpose of training for a period of not less than four weeks and which must be completed by the member before the member is commissioned. The duty must be under chapter 103 of Title 10. 38 U.S.C.A. § 101(22)(d) ; 38 C.F.R. § 3.6(c)(4). The term inactive duty training means training (other than ACDUTRA) by a member of the Senior ROTC prescribed under chapter 103 of title 10. 38 U.S.C.A. § 101(23)(c) ; 38 C.F.R. § 3.6(d)(3). Presumptions - such as of soundness, aggravation, and for service connection for certain conditions that are considered chronic (i.e., permanent), per se, do not apply to periods of ACDUTRA and INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (38 C.F.R. § 3.203 prohibits VA from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces). Army Reserve Officers Training Corps (ROTC) records show that the appellant enlisted in the Army ROTC program at the Florida Institute of Technology, effective August 31, 1998. A copy of the appellant's orders, dated in November 1998, shows that she was authorized to travel at government expense under title 10, USC 2107. A private treatment report, dated on September 21, 1998, shows that the appellant was treated for an injured back while doing sit-ups. ROTC records show the following: in November 1999, the appellant was medically cleared for continued training, although she needed to run at her own pace and distance for four weeks. In April 2001, Major D.F. issued a memorandum in which he stated that the appellant sustained a back injury in September 1998, followed by treatment from a private health care provider in October 1998, and being profiled (light duty) for the rest of the semester. She later received additional profiles. She was subsequently found to have an injured lumbar disc, and was recommended to be disenrolled from ROTC on a medical discharge. She became a student of his during the current semester. Major D.F. stated: It was during this time that I found out that she was not covered under Workman's Comp[ensation]. And for her future care is why I have initiated this claim. From my investigation into her injury that [sic] it was in the performance of her duty. In June 2001, the appellant was determined to be medically disqualified for retention, due to lumbar disc disease, her scholarship was to be terminated, and she was to be disenrolled from ROTC, "with her service uncharacterized." A June 2001 discharge is of record. Private treatment reports include statements from Dr. T.D., dated in April 2003, and December 2006, which show the appellant was diagnosed with chronic lumbar strain, herniated lumbar disc, lumbar disc disease, post-traumatic lumbar facet arthritis and progressive degenerative disease at L5-S1 disc spaces. A statement from the Employment Standards Administration, Office of Workers' Compensation Programs, dated in February 2004, shows that the OWCP notified the appellant that her claim had been accepted. The notice states: Public Law 97-306, effective October 1, 1982, extended Department of Veterans Affairs (DVA) benefits to ROTC members (not applicants for membership) who are injured during ROTC field training or practice cruises. For there to be DVA coverage for disability, permanent disability must result from the injury, and the member must have been discharged from the ROTC due to the injury. If you were dismissed from the ROTC as a result of your injury you may be eligible for benefits from the VA. If you want additional information you should contact your local VA office. A private treatment report from T.D., M.D., dated in December 2006, shows that this physician stated that the appellant "was injured as a Line of Duty Injury in Required Physical Training," and that she had a herniated lumbar disc L4-5, with progressive L5-S1 degenerative disease, lumbar muscle spasms and pain, and progressing lumbar facet arthritis. In January 2007, a response to a duty-to-assist request from the RO was received from the National Personnel Records Center (NPRC). The NPRC stated, "No evidence of active duty time and not a cadet in a military academy." In September 2007, the NPRC stated that a DD Form 214 (report of separation) was not issued because "the veteran" had no active service or less than 90 consecutive days of active duty for training. In September 2008, a response from the Social Security Administration indicated that the appellant's Social Security number was verified, but that there was no Title II or Title XVI data found. In November 2011, the Board remanded the claim, and directed that attempts be made to verify any periods of active duty, ACDUTRA, or INACDUTRA, and in particular, whether the appellant was on ACDUTRA or INACDUTRA when she injured her back in September 1998. A response from the Defense Personnel Records Information Retrieval System (DPRIS) was received in July 2012. DPRIS stated that no record was found using the appellant's Social Security number. The Appeals Management Center (AMC) was asked to verify the appellant's Social Security Number, branch of service, and that the claimed military service was completed after the implementation of electronic OMPF records, i.e., calendar year 2000. No follow up was taken. A response from the supervisor, Verifications and Support Branch, Defense Finance and Accounting Service (DFAS), dated in September 2012, states that they do not maintain ROTC records. A "report of general information" (VA Form 21-082)), dated in September 2012, shows that an ROTC officer ("Major G") at the Florida Institute of Technology (FIT) was contacted by a member of the AMC, and consulted about the appellant's claim. Major G stated that ROTC cadets are not considered active or inactive until after they have completed their oath to either active duty or at their reserve/guard unit after completion of the college course. If any cadet is injured they file a worker's compensation claim with the school to the Department of Labor. The AMC employee memorialized the conversation in an electronic mail (email) sent to Major G that same day. In his response, dated September 12, 2012, Major G (who identified himself as a Professor of Military Science and being affiliated with the FIT ROTC) stated that when cadets get injured during any type of training prior to the actual commissioning oath and graduation from college, they are covered under workmen's compensation. There are no associated Tricare or VA benefits or entitlements. The cadets fall under the "Department of Military Science," and receive the same treatment and workmen's compensation as any athlete or student that gets hurt while participating in sanctioned events. The only exception is when ROTC sends cadets to summer training, or overseas training for over 30 days, when they are put on official orders, their data is loaded into DEERS (Defense Enrollment Eligibility Reporting System), and they fall into the same system as an active duty member. Major G concluded that the appellant's injury would not have caused this type of VA benefit, but that she may possibly have been covered by the workmen's compensation system. The Board finds that status as a veteran is not established. VA has attempted to ascertain whether or not the appellant was on active duty, ACDUTRA, or INACDUTRA, when she injured her back on September 21, 1998, however no such service has been verified. There is no service evidence to show that at the time of her injury she was training under title 10 U.S.C. 103. Rather, the appellant's ROTC orders indicate that her training was under title 10 USC 2107. As such, her injury is not shown to have occurred during a period of qualifying service, and status as a veteran is not warranted. See 38 U.S.C.A. § 101(22)(d), (23)(c); 38 C.F.R. § 3.6(c)(4), (d)(3). The Board has considered the statements of Major D.F. and Dr. T.D. However, only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Board therefore finds that the claim must be denied. The Board has considered a printout of a case from the 8th Circuit Court of Appeals, submitted by the appellant, which involved a cadet who was injured while taking a physical fitness test in association with ROTC membership. This case indicates that the cadet was awarded benefits through the Federal Employees' Compensation Act (FECA), and later by VA. However, the case indicates that the cadet's injury was shown to have been determined to be in the line of duty, during a period of INACDUTRA. In the appellant's case, her injury is not shown to have been incurred during a qualifying period of service. Therefore, it does not provide a basis for a grant of the claim. In November 2011, the Board remanded this claim. The Board directed that attempts be made to verify the Appellant's active duty, ACDUTRA and INACDUTRA service with the U.S. Army ROTC/Reserves from all appropriate sources, specifically to include a determination whether the Veteran had any periods of ACDUTRA or INACDUTRA service during September 1998, when she injured her back. As discussed supra, attempts were made to verify any and all periods of active duty, ACDUTRA, and INACDUTRA with DPRIS and DFAS. DFAS reported that it did not hold ROTC records, which the Board accepts as a legitimate negative response. DPRIS indicated a search for records with them had been essentially misguided because there system had not gone in effect until 2000, which was two years subsequent to the appellant's training in September 1998. The AMC unfortunately did not follow up with DPRIS as to where it might be able to confirm whether was on active duty, ACDUTRA, or INACDUTRA at the time of her September 1998 injury. Nevertheless, the Board finds that there has been substantial compliance with its November 2011 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with) First, the NPRC clearly indicated that there was no evidence that the appellant had active duty time and was not a cadet in a military academy. The appellant's service orders also indicate that she authorized to travel under title 10 USC 2107 as opposed to Chapter 103 of title 10. Next, and of rather significant probative value, a consultation was made with an ROTC officer at the Florida Institute of Technology, who explained the very limited setting in which an injury to ROTC cadet could be considered active duty. Notably, the cadet would have had to been sent to Summer Training or Overseas Training for more than 30 days. The appellant does not contend that either occurred. She only states that her injury occurred during her initial days of physical training. Indeed, the appellant's enlistment in the Army ROTC program began on August 31, 1998. Her injury occurred on or about September 21, 1998. Thus, given the very limited circumstances establishing active service are not shown or contended, and because there are already service records showing that the appellant did not meet the active duty requirements, the Board finds that an additional remand to try to determine whether the appellant was injured during a period of active duty, ACDUTRA, or INACDUTRA would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, provides, among other things, for notice and assistance to claimants under certain circumstances. Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, in December 2006, the appellant was sent a VCAA notice. However, and in any event, when the law and not the evidence are dispositive of the claim, the VCAA is not applicable. See id. at 132. Here, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). For these reasons, the Board concludes that no further notification or development of evidence is required. ORDER The appeal is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs