Citation Nr: 18147511 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-00 134 DATE: November 6, 2018 REMANDED Whether the appellant has status as a Veteran is remanded. REASONS FOR REMAND The appellant had service in the National Guard from at least August 1988 to January 1989. Whether the appellant has status as a Veteran is remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military, naval, or air service not only includes any period of active duty, but also 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 training (INACDUTRA) during which the individual concerned was disabled or died from injury - though not also disease - incurred in 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. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). This refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist’s or Guardsman’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To the extent a claimant is alleging that he has an injury or disease incurred or aggravated during his time in the National Guard, he must first establish his status as a “Veteran” in connection with that service and then that he was disabled from disease or injury incurred or aggravated in the line of duty during that service, such as while on ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a “Veteran” for other periods of service does not obviate the need to establish that he is also a “Veteran” for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Without the status as a Veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to Veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ACDUTRA or INACDUTRA, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Presumptive periods for service connection do not apply to ACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Acciola v. Peake, 22 Vet. App. 320, 323-324 (2008). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Id. at 48. This matter should be remanded to allow the appellant to explain the circumstances under which his claimed injuries took place and to permit additional development into the appellant’s service. Additionally, the appellant identified several sources of private treatment records that were not requested by the Agency of Original Jurisdiction (AOJ). This should be corrected on remand. The matter is REMANDED for the following action: 1. Ask the appellant to identify, with as much specificity as possible, the dates, locations, and units of his Indiana National Guard service and as many details as possible about the in-service incident(s) that led to his claimed conditions. Also ask the appellant to provide any service treatment records or service personnel records that may be in his possession relating to his National Guard service. 2. Ask the appellant to identify any sources of private treatment he has received for his claimed injuries since he left service. Provide the appellant with authorization forms for each of these private treatment facilities. The AOJ should then attempt to obtain these records. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After completing step number 2, request all of the Veteran’s National Guard service treatment and personnel records from any and all appropriate sources, including the Indiana Adjutant General’s office. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke