Citation Nr: 20004884
Decision Date: 01/22/20	Archive Date: 01/21/20

DOCKET NO. 19-03 327A
DATE: January 22, 2020

REMANDED

Entitlement to service connection for a residual scalp scar is remanded.

REASONS FOR REMAND

The Veteran served in the Army National Guard of Indiana from June 1973 to January 1976 and on active duty in the United States Army from January 1976 to August 1996.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to service connection for a residual scalp scar is remanded.

The Veteran contends that he has a scalp scar as a residual of an incident in 1973 when he was struck by a grenade canister at Fort Jackson.  That injury is alleged to have occurred during his Indiana National Guard service. 

 

Active military, naval, or air service includes: (1) active duty; (2) any period of active duty for training during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty; or (3) any period of inactive duty training during which the individual concerned was disabled or died from an injury (though not also disease) incurred or aggravated in the line of duty. 38 U.S.C. § 101(24)(A)(C). Regarding the latter two types of service, for members of the National Guard of any state, this encompasses duty in drills, field exercises, arms competitions, or military schools when required by federal law. 38 U.S.C.A.§ 101(20), (22)(C), 23(C).

Only disabilities during certain periods of the Veteran's service in the National Guard would be eligible for service connection. A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. (see Allen v. Nicholson, 21 Vet. App. 54 (2007), see also Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C).

 

Since the Veteran’s service treatment records (STRs) and service personnel records (SPRs) concerning his service in the Army National Guard of Indiana are not presently in evidence, this claim is REMANDED for the following action:

Obtain the Veteran’s STRs and SPRs concerning his service in the Army National Guard of Indiana from June 1973 to January 1976.  These additional records need to be obtained since he alleges that he was injured at Fort Jackson in 1973, so during that service.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Baronofsky

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.