Citation Nr: 21061911 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-20 520 DATE: October 5, 2021 REMANDED The issue of whether the appellant meets the basic eligibility requirements for entitlement to the receipt of Department of Veterans Affairs (VA) benefits is remanded. REASONS FOR REMAND The appellant seeks eligibility for entitlement to VA benefits based on her service in the Naval Reserve Officers' Training Corps (NROTC) scholarship program. A Board hearing was held before the undersigned Veterans Law Judge in June 2021, and a transcript of the hearing is of record. With respect to establishing basic eligibility for VA benefits, a claimant must first establish "veteran" status. See D'Amico v. West, 209 F.3d 1322, 1326 (2000) ("[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability"). A veteran is defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. In order to establish "veteran" status and basic eligibility for VA benefits based on a period of duty as a member of the ROTC program, the claimant must have been ordered to ACDUTRA for the purpose of training or a practice cruise under 10 U.S.C. Chapter 103 for a period of not less than four weeks and which must be completed by the member before the member is commissioned. See 38 U.S.C. § 101(22)(D); see also 38 C.F.R. § 3.6(c)(4). For claims based on a period of INACDUTRA, the member of, or applicant for membership (as defined in 5 U.S.C. § 8140(g)) in, the ROTC program must have been ordered to training (other than active duty for training) prescribed under 10 U.S.C. Chapter 103. See 38 U.S.C. § 101(23)(C); see also 38 C.F.R. § 3.6(d)(3). In this case, the appeal was remanded by the Board in August 2018 to attempt to obtain verification of any active service, as defined above, that was performed by the appellant during her membership in the NROTC scholarship program. As noted in the August 2018 Board remand, the appellant had not provided details regarding the type and dates of her training prior to that decision. However, the appellant has provided additional information concerning her NROTC service following the August 2018 Board remand. In April 2019, the appellant submitted university financial records documenting her receipt of an NROTC scholarship from August 1993 through April 1994. See University Registrar records. During the June 2021 Board hearing, the appellant testified that she attended a one-week period of military indoctrination training on-board a Naval base. The appellant reported that she slipped and fell during this period of training in August 1993. See also November 2014 VA Form 21-0820. The appellant reported that she injured her hip as a result of the fall and sought treatment at the base infirmary. See also January 2015 VA Form 21-527EZ (appellant reported treatment in August 1993 at the base hospital/student infirmary in Millington, TN). The appellant reported that she completed a physical fitness assessment during the military indoctrination training, despite begin advised by the provider at the base infirmary to stay off her leg. The appellant reported that she continued to run and participate in the drill team and color guard with her university NROTC program from August 1993 to April 1994. The appellant reported that she developed sciatica as a result of the fall and injury to her hip during the August 1993 military indoctrination training. Additionally, the appellant testified during the June 2021 Board hearing that she developed shin splints and required custom orthotics due to the physical requirements of her participation in the NROTC program. The appellant's school health records indicate that she first sought treatment for her bilateral lower extremities in mid-October 1993 and reported a two-week history of increasing shin splint pain. See October 27, 1993 Sports Medicine Clinic note (documenting marked dramatic pes planus, iliotibial band pain, and severe shin splints). While evidence associated with the claims file indicates the appellant was placed on academic probation in the NROTC program in January 1994, the appellant indicated that she went before a NROTC Performance Review Board in April 1994 because she was not physically qualified to continue in the NROTC program. See also April 5, 1994 University Sports Medicine Clinic note; see also Undergraduate Academic Record (documenting withdrawal in April 1994 for health reasons). Insofar as the appellant may seek basic eligibility for VA benefits based on her participation in drills as part of her activities as a member of the NROTC, such activities are specifically excluded from the definition of active service. See 38 C.F.R. § 3.700. However, the appellant has also indicated that she seeks service-connected disability compensation related to the injury described above that reportedly occurred during a one-week military indoctrination training in August 1993. See January 2015 VA Form 21-527EZ; see also June 2021 Board hearing transcript. In accordance with regulations published by the Naval Service Training Command, NROTC indoctrination field trips and visits are considered professional training that takes on a variety of forms, which are provided for by 10 U.S.C. § 2109. See NSTC M-1533.2C, Regulations for Officer Development for the Naval Reserve Officers' Training Corps (NROTC), Para. 3-16. In this case, the appellant's August 2013 claim for service-connected disability benefits is based, at least in part, on military indoctrination training that appears to meet the definition of inactive duty training under 38 C.F.R. § 3.6(d)(3). Additionally, the appellant has suggested that she was disenrolled from the NROTC program in April 1994 due to physical disqualifications. As such, the Board finds the appellant's NROTC service or program participation records may contain information that could reasonably help substantiate her claim. While previous attempts to obtain the appellant's NROTC service records have been unsuccessful, the Board finds additional efforts should be made to attempt to obtain such records in order to fulfill VA's duty to assist. The matters are REMANDED for the following action: 1. Attempt to obtain the appellant's NROTC service or participation records from: Naval Service Training Command Officer Development 250 Dallas St. Ste A Pensacola, FL 32508 In requesting such records, the Board notes that the appellant indicated that her military service records may identify her by her middle name, Tuyet Chu. See November 2014 VA Form 27-0820. Document all attempts to locate such records and any negative responses in the claims file. Notify the appellant and his representative of all efforts made. Additionally, request that an official provide information whether the indoctrination training prior to the start of the academic year as described by the appellant is inactive duty training by a member or applicant of the NROTC program as prescribed under chapter 103 of Title 10 U.S.C. (38 C.F.R. § 3.6 (d)(3). 2. Following the above development, and any additional development deemed warranted, readjudicate the appeal. If the benefits sought remain denied, issue the appellant a supplemental statement of the case and inform the appellant of her appeal options. J. W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate Counsel 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.