Citation Nr: 1603269	
Decision Date: 02/01/16    Archive Date: 02/11/16

DOCKET NO.  13-27 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for epilepsy.  


ATTORNEY FOR THE BOARD

S. Nathanson, Associate Counsel 


INTRODUCTION

The appellant served in the California Army National Guard December 1975 to April 1976 and had a period of active duty for training (ACDUTRA) from March 1976 to April 1976.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  

The Board remanded the case in January 2014 and May 2015 for further development.  The case has been returned to the Board for appellate review.  

This appeal was processed using the Veterans Benefits Management System (VBMS).  The documents in the Virtual VA paperless claims file are duplicative of the evidence in VBMS.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The appellant has contended this current epilepsy manifested during his period of ACDUTRA while serving in the California Army National Guard.  

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  

Active military, naval, or air service includes 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 for 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). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c) (3). 

Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state.  "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for 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. Id.  

As previously noted, the appellant had a period of ACDUTRA from March 1976 to April 1976.  However, it is unclear as whether that period was federal service. 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should verify whether the appellant's period of ACDUTRA from March 1976 to April 1976 was "full-time duty" ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or whether he wasordered into Federal service by the President of the United States, see 10 U.S.C. §12401.  In other words, the AOJ should determine whether such service was state-controlled or federal service.  

2.  After completing the above actions and any other development as necessary, the case should be reviewed by the AOJ on the basis of the additional evidence.  If the benefits sought are not granted, the appellant and his representative 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 appellant has the right to submit additional evidence and argument on the matter or 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 2014).


_________________________________________________
J.W. ZISSIMOS
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) (2015).