Citation Nr: 1616154 Decision Date: 04/21/16 Archive Date: 05/04/16 DOCKET NO. 13-24 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The appellant served in the National Guard of Nebraska from September 1951 to July 1959. He has no periods of verified federal active service. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In June 2014, the Board remanded the case to the RO for further development and adjudicative action. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant seeks service connection for a bilateral hearing loss disability. He asserts that he suffered hearing loss as a result of firing Howitzer guns during his 8-year enlistment. The appellant also indicated on his VA Form 21-526 - claim form, that he suffered a hearing loss injury in approximately July 1952 during a two-week training period in LaCrosse, Wisconsin. It is undisputed that the Veteran served in the Army National Guard of Nebraska beginning in September 1951. In March 1961, the Veteran was transferred from the National Guard to the Army Corps Reserves. He was discharged from the Army Reserves in July 1959. The record also reflects that the Veteran was subsequently transferred to the Army Reserves until his discharge in May 1962. Under the law, active military service includes (1) active duty (AD), but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard or Air National Guard of any state under sections 316, 502, 503, 504, or 505 of title 32 of the United States Code. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6(c) (2015). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty) under 32 U.S.C. 316, 502, 503, 504 or 505 or the prior corresponding provisions of the law. 38 U.S.C.A. § 101(23) (West 2014); 38 C.F.R. § 3.6(d) (2015). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status"). 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 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). The Board observes that the Veteran has not yet established Veteran status with regard to any periods of his National Guard service. Because the Veteran's National Guard training duty was only occasional, the onset of his claimed condition must be related to a specific period of training duty. 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. 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, 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, 57-58 (2007). Therefore, to have basic eligibility for Veterans 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.A. §§ 101(21), (22)(C); Allen, supra. In this case, the appellant asserts that his training periods in the National Guard should be considered ACDUTRA and/or INACDUTRA for purposes of establishing that his hearing loss disability was incurred as a result of injury during one or more of those training periods. The RO made several attempts to obtain the appellant's personnel records, service treatment records, and any other federal records which might confirm federal service. The RO contacted the National Personnel Records Center and requested verification of any federal service as well as any supporting documentation. In response, the NPRC indicated that the appellant's records were fire-related, and the NPRC was only able to obtain a copy of a March 1959 discharge examination report. More recently, the RO also contacted the State of Nebraska's Adjutant General and requested all of the appellant's personnel records for training and inactive duty training. An August 2015 Report of Contact indicates that a representative from the Nebraska Adjutant General's Office notified the RO that a search of all hard copy documents and microfiche records produced no documentation for the appellant's reported Army National Guard service. Likewise, another August 2015 Report of Contact reflects that the RO contacted a representative from the Nebraska Department of Veterans Affairs to try to obtain any DD Form 214's associated with the appellant's service. This search was also negative. The RO issued a supplemental statement of the case (SSOC) and returned the case to the Board. In November 2015, VA received additional personnel records of the appellant from the National personnel Records Center. These records are potentially relevant to the appellant's claim, and yet, he has not been provided with an opportunity to review the evidence and present additional argument in support of his appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) After a review the appellant's personnel records received at the RO in November 2015, undertake any additional development deemed necessary and then readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) and return the case to the Board, if in order. 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). _________________________________________________ MICHAEL A. PAPPAS 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).