Citation Nr: 1634998 Decision Date: 09/07/16 Archive Date: 09/20/16 DOCKET NO. 11-32 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The appellant served in the South Carolina Army National Guard from July 1978 to December 1999, including a period of active duty for training (ACDUTRA) from August 1978 to November 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A hearing was held before the undersigned Veterans Law Judge in May 2016. A transcript of the hearing is of record. The Board remanded the case for further development in October 2014. The case has since been returned to the Board for appellate review. The Board notes that the appellant submitted a statement in June 2016 indicating that he has erectile dysfunction due to his back and leg pain. However, the issues of entitlement to service connection for erectile dysfunction and a back disorder are not on appeal. If he would like to file a claim for those disorders, the appellant and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND 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 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. Id. The Board notes that the case was previously remanded to verify the appellant's service in 1979. Although there is a retirement credits record showing that the appellant had a period of service from June 16, 1979, to June 30, 1979, it is not clear if this was a period of active duty, ACDUTRA, or INACDUTRA. It is also unclear as to whether it would have been federal service. Therefore, the AOJ should verify the type of service the appellant had in 1979. In addition, the appellant testified in May 2016 that he was placed on profile for his left leg. There is no documentation of any profile in the available service treatment records. Thus, on remand, the AOJ should attempt to obtain any additional service treatment records that may document the appellant's alleged profile in service. Moreover, the appellant has indicated that he filed a workers' compensation claim for his back and legs in 2007. See Bd. Hrg. Tr. at 29. Because these records appear to be relevant to the appellant's claim, the AOJ should attempt to secure them. Accordingly, the case is REMANDED for the following action: 1. The AOJ should verify any duty military service that the appellant had from January 1979 to December 1979. Specifically, the AOJ should verify the dates of any periods of active duty, ACDUTRA, or INACDUTRA that the appellant had in the South Carolina Army National Guard. The AOJ should prepare a summary of such dates, to include whether such service was federalized. Any additional, outstanding service personnel and service treatment records should also be secured from that time period, to include any profiles on which the appellant may have been placed for his left leg. 2. The AOJ should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for his left leg. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding, relevant VA treatment records. 3. The AOJ should also ask the appellant to provide any additional details necessary to obtain records corresponding to his workers' compensation claim. After obtaining any needed information and authorization, the AOJ should undertake the necessary efforts to obtain pertinent workers' compensation records. 4. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the appellant a VA examination and/or obtaining a medical opinion. 6. When the development has been completed, the case should be reviewed by the AOJ on the basis of 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 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).