Citation Nr: 18124231
Decision Date: 08/07/18	Archive Date: 08/06/18

DOCKET NO. 17-02 007
DATE:	August 7, 2018
REMANDED
Entitlement to service connection for a left knee disorder is remanded.
Entitlement to service connection for a low back disorder is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.

REASONS FOR REMAND
The appellant had active duty for training (ACDUTRA) in the Puerto Rico Army National Guard from August 1970 to December 1970.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision.
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 or territory.  “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; 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. 
In the present case, the appellant had a period of ACDUTRA from August 1970 to December 1970.  However, the AOJ did not make a determination as to whether the period of service was state-controlled or federal service.  Therefore, on remand, the AOJ should clarify this matter. 

The matters are REMANDED for the following action:

1.  The AOJ should determine whether the appellant’s period of ACDUTRA from August 1970 to December 1970 was “full-time duty” ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or whether he was ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401.  If any additional development is needed, the AOJ should undertake such steps. See M21-1R, Part III, subpart ii, 6.3.
The AOJ’s determination of whether the appellant had federal service during this time period should be documented in the file.
2.  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.
 
J.W. ZISSIMOS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Osegueda, Counsel