Citation Nr: 20037514 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-00 805 DATE: June 2, 2020 REMANDED Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from October 1986 to March 2000 and had additional service in the National Guard. Entitlement to service connection for a back condition is remanded. The back injury at issue is claimed to have occurred during the Veteran’s time in the National Guard. Active military, naval, or air service includes: (1) active duty (AD); (2) any period of active duty for training (ACDUTRA) 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 (INACDUTRA) 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, ACDUTRA and INACDUTRA, 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’s 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). The Veteran recently had a videoconference hearing before the Board in May 2020 concerning his claim and, when questioned about the circumstances of his back injury at issue, he was certain it occurred during a qualifying period of service in the National Guard. He testified that he was injured in a motor vehicle accident (MVA) when returning from annual training (ACDUTRA) in the National Guard in October 2000. He conceded to being involved in two other MVAs since – in 2012 and 2016 (again rear ended both times), but he pointed out those records note a pre-existing (“old”) back injury, which affected the insurance settlement regarding those two more recent MVAs because the insurance company wanted to attribute all impairment to his prior MVA in 2000 while in the National Guard. He explained that those two additional MVAs “woke up” the prior injury – which the Board interprets to mean “aggravated” it. At the time of the hearing before this Board, the Veteran already had been provided a VA examination concerning this claim in November 2014, but new evidence – including a personal statement from him and new treatment records and reports corroborating his statements, since has been added to the record after the issuance of the Statement of the Case (SOC) in November 2017. This additional evidence also includes a line-of-duty (LOD) determination concerning his MVA in October 2000 while in the National Guard. The VA examination conducted in November 2014, consequently, was unable to consider this additional evidence. A new VA examination therefore is needed to assist in ascertaining whether the Veteran’s claimed back condition is related to his initial MVA during his service in the National Guard. Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for another examination by an appropriate clinician for additional medical comment concerning the nature and etiology of his back condition, including especially his claimed low back sprain and in terms of whether it is at least as likely as not related to an in-service injury, event, or disease, especially his October 2000 MVA while in the National Guard. *The examiner must consider the line-of-duty (LOD) determination submitted concerning that MVA while in the National Guard, which the prior November 2014 VA examiner did not have opportunity to consider. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.