Citation Nr: 18159041 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-29 083 DATE: December 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to non-service-connected pension is denied. FINDINGS OF FACT 1. The Appellant did not have qualifying active duty status during which an injury could have occurred to develop hearing loss or tinnitus. 2. The appellant does not have qualifying wartime, active duty service for non-service-connected pension purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to non-service-connected pension benefits have not been met. 38 U.S.C. §§ 1502, 1513, 1521, 1522; 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.273, 3.274, 3.275, 3.277, 3.340. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served in the Michigan Army National Guard from November 1953 to November 1956. The Appellant was scheduled to appear for a videoconference hearing in November 2018, but he did not appear. Additional evidence was received after the regional office (RO) last considered the Appellant’s claim. The Appellant waived RO consideration of the evidence in a letter dated November 2018. Service Connection The Appellant asserts that during exercises with different firearms, he developed ringing in his ears and hearing loss that has been present since service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1331; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Appellant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Appellant did not have federal active duty military service; rather, he had service in the Michigan Army National Guard from November 1953 to November 1956. In this matter, the Board notes that the nature of this National Guard service is of paramount importance in deciding the outcome in this case. 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. §§ 101 (21), (24), (106) (2012); 38 C.F.R. § 3.6 (a), (d) (2017). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3) (2017). 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 (2012), or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 (2012). Id. This kind of service was neither alleged by the Appellant nor shown by the service records. Therefore, he did not have qualifying federal active duty service such that service connection for a disability could be awarded by VA. The Appellant has not presented any evidence to the contrary. In view of the above, the weight of the evidence is against the claim for service connection for bilateral hearing loss and tinnitus. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Non-Service-Connected Pension The Appellant generally contends that he should be granted non-service-connected pension benefits. Generally, entitlement to non-service-connected pension benefits is warranted when a Veteran: (1) served in the active military, naval, or air service for 90 days or more during a period of war; (2) is permanently and totally disabled from non-service-connected disability not due to his own willful misconduct; and (3) meets the net worth requirements and has an annual income that does not exceed the applicable maximum annual pension rate. 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23, 3.273, 3.274, 3.275. The term “period of war” is defined by statute and includes: the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. §§ 101 (6), (7), (8), (9), (11), (29), (30), (33); 38 C.F.R. § 3.2. The Korean Conflict occurred from June 27, 1950, through January 31, 1955. 38 C.F.R. § 3.2 (e). The Appellant served from November 1953 to November 1956; however, the Appellant did not have any federal active duty service, only in the Michigan Army National Guard. Although the Board sympathizes with the Appellant’s plight, entitlement to non-service-connected pension benefits is not warranted. (Continued on the next page)   As wartime service is a threshold criterion for establishing entitlement to non-service-connected pension benefits, there is simply no legal basis to award such benefits. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock