Citation Nr: 21070767 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-10 917 DATE: November 26, 2021 ORDER Entitlement to service connection for a back disorder is denied. FINDING OF FACT A back disorder was neither shown in active service nor to be the result of an injury incurred or aggravated during a period of active duty or while in the line of duty during active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). CONCLUSION OF LAW The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active service in the Army from January to July 1984. The appeal originates from a July 2015 decision of a Department of Veterans Affairs (VA) Regional Office. The appellant appeared for a hearing before the undersigned in March 2020. The claim was previously denied in a January 2014 Board decision. In May 2021, the appellant submitted a Certificate of Extension from the Pennsylvania Army National Guard reflecting extension of service through November 1992. As a relevant military personnel record was associated with the file following the prior denial, new and material evidence is not required to reopen the claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). The appellant contends that he developed a back disorder due to an injury in February 1991 while serving in the National Guard. See March 2020 Hearing Transcript. He asserts that this was a period of active duty or that the injury was incurred in the line of duty during ACDUTRA or INACUDTRA. He neither contends, nor does the record show, that a back disorder had its onset in or is related to his verified active service in 1984. To the contrary, he maintains that he only injured his back in February 1991 and after service in 2003. See March 2015 Correspondence. Therefore, the threshold question is whether February 1991 is a period of active service. As discussed in the January 2014 Board decision, the appellant served in the National Guard from November 1983 to March 1996 and had a period of ACDUTRA from January to July 1984. VA verified his service and certified that he only had active service in 1984. While service treatment records document back pain in February 1991 and the appellant submitted a training certificate from that month, this evidence is silent as to whether it was a period of active duty, ACDUTRA, or INACDUTRA. Lay statements received from the appellant and a fellow servicemember are likewise insufficient as only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Venturella v. Gober, 10 Vet. App. 340 (1997). Following the Board decision, the appellant submitted the aforementioned Certificate of Extension and a General Discharge from the National Guard. These do not indicate that he was on active duty, ACDUTRA, or INACUDTRA in February 1991. The appellant counters by arguing that there is no operational distinction between active and reserve service, but the Board remains bound by law on this question. It remains the case that the February 1991 injury is not shown to have occurred during active duty, ACDUTRA, or INACDUTRA. Accordingly, as this was not a qualifying period of active service, service connection is precluded as a matter of law and the Board need not consider whether a back disorder is related to an injury during that period. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.