Citation Nr: 1328704 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 13-13 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability, claimed as secondary to a right knee disability. 3. Entitlement to service connection for a low back disability, claimed as secondary to a right knee disability. 4. Entitlement to service connection for a sleep disorder, claimed as secondary to a right knee disability. WITNESSES AT HEARING ON APPEAL The Veteran and Mrs. V. ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran did not have a period of active service; the Veteran served with the New York Air National Guard from June 1966 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision of April 2012 of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims on the basis that there was no evidence that his right knee disability is related to an injury incurred or aggravated in the line of duty. The Veteran and his wife testified in a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND For many reasons, the Veteran's claim must be remanded. First, it must be determined whether the Veteran is eligible for VA benefits. The evidence obtained regarding the Veteran's service shows that he served solely with the New York Air National Guard. Unlike the Reserves, the National Guard is only a reserve component "while in the service of the United States." Thus, a member of the National Guard holds a status as a member of the federal military or the state militia under the command of a state governor, but never both at once. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, they serve solely as members of the State militia under the command of a state governor. See Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L.Ed.2d 312 (1990); Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003); Allen v. Nicholson, 21 Vet. App. 54 (2007). Therefore, to have basic eligibility for VA compensation benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C). The Veteran contends that he injured his right knee during a two week drill period. If it is shown that this period meets the criteria described above, then the Veteran would be eligible for VA benefits. If not, then he is ineligible. Thus, before adjudicating the claim on the merits, VA must determine on remand whether the Veteran is eligible for benefits at all. If the Veteran is eligible for benefits, then further development is required. The Veteran has mentioned receiving private medical treatment for his claimed conditions, but he has neither submitted records of this treatment himself, nor has he provided VA with releases to obtain this information. On remand, the Veteran must be provided with notice of how he can submit evidence or have VA obtain evidence on his behalf. Next, in his August 2013 hearing, the Veteran stated that he is receiving income from Social Security; as it is not clear whether the Veteran is referring to disability or other benefits, VA must obtain any records from that agency on remand. Finally, though the Veteran underwent a VA examination in February 2012, this examination is inadequate. On remand, the Veteran must be provided a new examination. Accordingly, the case is REMANDED for the following actions: 1. Contact the NPRC, the New York State Adjutant General, and any other indicated sources to obtain any personnel records from the Veteran's service. 2. Determine whether the Veteran's service in August and September 1969 was federalized service under 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 3. If it is determined that the Veteran's service was federalized or that he is otherwise eligible for VA benefits, then continue with the development ordered below. If not, then readjudicate the appeal, issue a Supplemental Statement of the Case, and return the case to the Board 4. Ask the Veteran to identify all medical providers who have treated him for any of his claimed conditions. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 5. Contact the SSA and request that it provide documentation of the Veteran's claim for disability benefits (if any) and copies of all records developed in association with that agency's decision. 6. Schedule the Veteran for a VA examination by an appropriate medical professional, but not the examiner who performed the February 2012 examination. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. All indicated tests, including X-rays, must be performed. After examining the Veteran, the examiner is to answer the following questions: a. From what (if any) current right knee disability, left knee disability, low back disability, and sleep disorder does the Veteran currently suffer? b. Is it at least as likely as not (a 50 percent or greater probability) that any identified right knee disability is related to the Veteran's right knee injury suffered during a period of INACDUTRA? c. Is it at least as likely as not (a 50 percent or greater probability) that any identified left knee disability, low back disability, or sleep disorder is proximately due to or the result of his right knee disability? d. Is it at least as likely as not (a 50 percent or greater probability) that any identified left knee disability, low back disability, or sleep disorder is aggravated by the Veteran's right knee disability? The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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 Supp. 2012). _________________________________________________ RONALD W. SCHOLZ 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) (2012).