Citation Nr: 18141396 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-29 928 DATE: October 10, 2018 ORDER Entitlement to service connection for a skin disorder, diagnosed as actinic keratosis, is granted. FINDING OF FACT The Veteran has actinic keratosis that manifested in service. CONCLUSION OF LAW Actinic keratosis was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to June 1991. He also served in the Active Guard Reserve (AGR) of the New York Air National Guard from May 1997 to September 2009. This case comes before the Board of Veterans’ Appeals (the Board) from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the claim for service connection for a skin disorder was previously denied in a November 2010 rating decision. However, relevant service records were subsequently received. As a result, the claim will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). The Board notes that the Veteran and his representative have alleged that there was clear and unmistakable error (CUE) in the November 2010 rating decision. However, the Board has determined that the prior decision did not become final pursuant to 38 C.F.R. § 3.156(c). Because a CUE claim cannot be valid in the absence of a final decision, the allegation of CUE is moot, and there is no error of fact or law for the Board to consider on appeal. 38 U.S.C. § 7105(d)(5) (2012). See Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994) (a claim of CUE constitutes a collateral attack on a final RO decision). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. There has been authority under 32 U.S.C. § 502(f) to assign full-time operational duty National Guard members who provide full-time support to the Guard components, even though they are not activated. Full-time National Guard service is considered active duty for training (ACDUTRA) under 38 U.S.C. § 101(22)(C) if performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505. This is true regardless of whether the member is performing operational duty or undergoing training. Operational duty includes Active Guard Reserve (AGR) and active duty support (ADS), which apply to Guard personnel as well as to Reservists serving in these capacities. As a preliminary matter, the Board notes that the Veteran in this case is eligible for service connection for injuries or diseases occurred during his period of AGR service with the New York Air National Guard. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a skin disorder. The Veteran’s March 1981 enlistment examination was normal with no skin abnormalities noted at that time. In May 2004, while on AGR status, the Veteran complained of spots on his face and was referred to a dermatologist. In June 2004, he was diagnosed with actinic keratosis. According to the Veteran, the dermatologist removed the dark spots on his face, but they eventually returned. See March 2010 correspondence. The March 2010 VA examiner noted a diagnosis of actinic keratosis, but found no suspicious lesions or ulcerations present at the time of the evaluation. See March 2010 VA examination report. Private treatment records dated in October 2012 document premalignant lesions on the Veteran’s cheeks and right superior pinna, which were frozen with liquid nitrogen. In January 2014, the Veteran was again treated for actinic keratosis and prescribed Efudex cream. He continues to use Efudex to treat actinic keratoses on his face. See December 2015 private treatment records; December 2015 Disability Benefits Questionnaire (DBQ). Based on the evidence of record, the Board finds that the Veteran’s actinic keratosis manifested during a period of active service. Accordingly, service connection is warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel