Citation Nr: 21071422 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 10-31 897 DATE: November 30, 2021 REMANDED Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to October 1988. Thereafter, he served in the U.S. Naval Reserve from October 1988 to January 1996 and from October 2002 to May 2004 and in the Florida Army National Guard from May 2004 to May 2010, including periods of active duty for training (ACDUTRA) and periods of inactive duty for training (INACDUTRA). At contention in this case is whether the Veteran had any period of active duty during his service with the Naval Reserve and Florida Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision. The Board notes that the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is also on appeal under the legacy system and will be addressed in a separate Board decision. The Board acknowledges the Veteran's August 2019 correspondence requesting his appeal be advanced on the docket due to financial hardship. However, a review of the record does not indicate that the Veteran is currently homeless or that he is otherwise experiencing severe financial hardship. Neither the Veteran nor his representative have submitted evidence supporting that his is currently under a severe financial hardship. Therefore, the motion seeking to advance the Veteran's case on the docket due to severe financial hardship is denied. 38 C.F.R. § 20.902. Entitlement to nonservice-connected pension benefits is remanded. The Veteran's appeal was initially denied by the Board in a July 2011 decision. He appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the Board's July 2011 decision and remanded the Veteran's appeal in a September 2012 memorandum decision. Thereafter, the Board remanded the Veteran's claim for nonservice-connected disability pension benefits to comply with the Court's remand in May 2013 and June 2016. In a December 2017 decision, the Board again denied the Veteran's claim for nonservice-connected disability pension benefits. The Veteran again appealed to the Court. In a February 2019 memorandum decision, the Court vacated the Board's December 2017 decision and remanded the Veteran's appeal to the Board. The Board remanded the claim in September 2019 for further development and it has now returned to the Board. The Veteran is seeking nonservice-connected disability pension benefits based upon his military service. He has been denied pension benefits on the basis that he does not have at least 90 days of active military, naval or air service during a period of war. The Veteran contends that he has an aggregate of 90 days of wartime service based upon the number of active duty days that he served during his service with the U.S. Naval Reserve and Florida Army National Guard, which was all served during the Persian Gulf War period. The Veteran and his attorney contend that the Army National Guard Retirement Points History Statement should be relied upon and the points in the column labeled "AD Pts," which notes points earned by performing active duty, active duty for special work (ADSW), ACDUTRA, or annual training (AT), should be taken as proof that that Veteran has the required 90 days of active duty as these points add to well over that requirement. Thus, essentially the Veteran and his attorney argue that it does not matter whether the type of service was active duty, ACDUTRA or other some other form of duty, so long as it was not INACDUTRA, that such service should be counted towards the service requirement to establish the Veteran's eligibility for nonservice-connected disability pension benefits. If all such service is counted, then the Veteran has more than 90 days to be eligible for pension benefits. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities that are not the result of willful misconduct. 38 U.S.C. § 1521(a). A veteran meets the service requirements of this section if he or she served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3. In computing the ninety-day requirement, active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a period of war may be added together to meet the requirement for length of service. 38 C.F.R. § 3.16. The term "veteran" is defined as "a person who served in the active military, naval, or air service." 38 U.S.C. § 101(2); see 38 C.F.R. § 3.1(d). "Active military, naval, and air service" includes "active duty; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty training 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 which occurred during such training." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The law makes it clear that active duty is full-time duty in the Armed Forces but does not include ACDUTRA as the language specifically excludes duty for training or training purposes. See 38 U.S.C. § 101(21); 38 C.F.R. § 3.6(b). Furthermore, ACDUTRA is primarily defined as including full-time duty performed for training purposes by various organizations including the Reserves. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). It also lists full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504 or 505 or full-time duty by such members while participating in the reenactment of the Battle of First Manassas in July 1961. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c)(3). INACDUTRA is generally duty that is other than full-time duty. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). The conclusion compelled by the above statutory and regulatory scheme is that the term "veterans" (as defined by 38 U.S.C. § 101(2)) are those who (1) served on active duty; (2) were disabled or died from a disease or injury incurred in or aggravated in line of duty during active duty for training; or (3) were disabled or died from an injury incurred in or aggravated in line of duty during inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991) The Veteran has set forth multiple statements in support of his claim in which he has claimed specific periods of time that he was activated. In addition, he argues that the points in the "AD Pts" column on his Army National Guard Retirement Points History Statement (hereafter "Points Statement") should be taken as active duty and counted as each point is equal to one day of active service. However, contrary to the contentions of the Veteran and his attorney, the law set forth above clearly shows that it does make a difference what type of service the Veteran was performing at the time he was on activation. In other words, the evidence has to establish that the type of duty the Veteran was performing was active duty at the time or that it can be deemed active duty because the Veteran has been service-connected during a period of ACDUTRA or some other form of active service. Hence the reason for the Court's February 2019 remand. It found that the Board's December 2017 decision provided inadequate reasons and bases because it failed to explain why the Points Statement was sufficient to deny the Veteran's claim when it contains potentially favorable information. The Board had acknowledged this potentially favorable information in its decision as it denied the Veteran's claim in part because the Points Statement did not specify which points the Veteran earned for active duty and which points he earned for ACDUTRA. The Court noted, however, that the Board did not explain whether it would have been impossible or even unlikely to obtain clarification as to his dates of active duty. Thus, the Court found that remand was warranted for the Board to adequately explain its rationale for rejecting the Points Statement without seeking clarification as to the dates of active duty versus the dates of ACDUTRA service. Hence, implied within the Court's decision is a determination that there is a distinction between active duty points and the other types of active service points that make up the points total shown in the "AD Pts" column on the Points Statement. The Board previously acknowledged that, although it has some documentation confirming the Veteran's claimed active service periods, it could not verify all the points in the "AD Pts" column on the Points Statement. Initially, the Board comments that the claims file contains a DD Form 214 showing the Veteran had active duty with the U.S. Army from March 1988 to October 1988. However, this active duty service was not during a period of war, and therefore it cannot support the Veteran's claim for entitlement to nonservice-connected disability pension benefits, nor is there any contention that it does. This active service accounts for the 233 points noted on the Point Statement under "AD Pts" column for the period of March 3, 1988 to October 21, 1988. The Board also remarks that the Veteran has attained "veteran status" because of this period of active duty. However, such finding does not negate the need for him to establish "veteran status" for any duty periods during his inactive service with the Naval Reserve and Florida Army National Guard in order to establish to his claim for nonservice-connected disability pension benefits during those periods of service, which the Board acknowledges were done during the Persian Gulf War. Furthermore, the Board notes that there is no disagreement that the Veteran is deemed to have three days of active military, naval or air service from January 9, 2009 to January 11, 2009 as a result of him receiving service connection for residuals of an injury to his left middle finger characterized as residual paresthesias, status post healed laceration to left hand number three phalanx and a scar, left third finger. While the Veteran contends that this period of service was active duty, the evidence of record, including Leave and Earnings Statements (LES) associated with the record in August and September 2020 shows that this injury was incurred during a period of INACDUTRA. However, as the Veteran is service-connected for an injury sustained during this period, and as this service was during the Persian Gulf War period, it is deemed wartime service and is countable toward the 90-day service requirement in determining the Veteran's entitlement to nonservice-connected disability pension benefits. Similarly, the Board finds that the Veteran had active service from September 2, 2005 to September 15, 2005. The Points Statements shows the Veteran next earned 29 active service points for the period of October 31, 2004 to October 30, 2005. The Veteran contends he was activated and was on active duty for 14 days from September 2, 2005 to September 15, 2005 in support of operations for Hurricane Katrina. The Veteran's service personnel records confirm his participation in operations for Hurricane Katrina from September 2, 2005 to September 15, 2005. While there is no DD Form 214 of record for this period of service to establish that this period of service was active duty, the Veteran's service personnel records contain an order dated September 10, 2005 that states the Veteran was "ordered to active duty for special work (ADSW)." He was supposed to report to "various locations in support of Operation Katrina." The initial term of this duty was supposed to be September 2nd to the 8th, but an amended order changed the period to September 2nd to the 15th making the total time of this duty period 14 days. The authorization for this order was Title 32 of the United States Code, Section 503. Consequently, this period of active service is verified. Pursuant to 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c)(3), full-time duty performed by National Guard members under 38 U.S.C. § 503 is defined as ACDUTRA, not active duty. As this period of service is considered by law to be ACDUTRA, in order for it to be deemed active duty, the evidence has to establish that the Veteran has been disabled due to an injury or disease incurred during such service. After the Board remanded this issue in September 2019, the Veteran was granted service connection for an acquired psychiatric disorder in a November 2020 rating decision, with a noted stressor of his service after Hurricane Katrina. Hence, the Veteran's period of ADSW from September 2, 2005 to September 15, 2005 can be counted to establish his entitlement to nonservice-connected disability pension benefits as it is deemed to have been active military, naval or air service. The Board will now discuss the remaining active service periods that are in dispute. For the period of October 31, 2002 to October 30, 2003, the Points Statement shows that the Veteran received 13 active service points. The MMSI code (Military Membership Status Identifier) indicates this service was with the U.S. Navy Reserve, which is consistent with other documents in the Veteran's service personnel records demonstrating he had enlisted with the Naval Reserve and his obligation started on October 31, 2002. Unfortunately, there are no records to verify what type of active service these points were given for and, therefore, clarification of these points is required. Although the Board directed in the September 2019 remand to obtain an LES for this period, it does not appear that these records were obtained. As such, and as will be discussed further below, a remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). Before going on, the Board notes that the Veteran's service personnel records demonstrate that, in May 2004, the Veteran was discharged from the U.S. Naval Reserve because he had enlisted with the Florida National Guard. Hence, all service after May 2004 and discussed hereafter was with the Florida Army National Guard. The Points Statements shows the Veteran next earned 29 active service points for the period of October 31, 2004 to October 30, 2005. As discussed above, the Veteran was activated and was on active duty for 14 days from September 2, 2005 to September 15, 2005 in support of operations for Hurricane Katrina and the Board has found that this period of active service was active duty. However, this period only accounts for 14 points of the 29 total points he has for this period. The remaining 15 points are not verified. The Veteran has stated that he had AT, but the Board cannot find the order in his service personnel records or any other documentation of what type of duty these 15 points may have been. However, the Veteran's service personnel records contain the Statement of Understanding Reserve Obligation and Responsibilities (hereafter "Obligations Statement") that he signed in April 2004 a month before his enlistment into the Florida Army National Guard. Such statement indicates the Veteran's agreement that he would complete a period of annual training of not less than 15 days each year. It can be inferred, therefore, from the Veteran's statements that he performed AT and from the fact that there are only 15 points, that these points were for AT. However, given the Court's remand, the Board's September 2019 remand directed VA to obtain clarification of these 15 points for the period of October 31, 2004 to October 30, 2005. While an LES shows that the Veteran received active duty pay from July 9, 2005 to July 23, 2005, the LES does not distinguish the type of active service and additional clarification is needed. The Points Statement next shows the Veteran was awarded 60 points for the period of February 28, 2006 to April 28, 2006. The claims file contains multiple copies of the Veteran's DD Form 214 for this period of service to include a short form and a long form. The difference between the short and long forms is that the long form shows the "Special Additional Information," which contains the type and character of the Veteran's service as well as the narrative reason for his discharge. The short form does not contain such information. Here, the long form is the appropriate form to use because it clearly demonstrates the type of service the Veteran had. Under the "Special Additional Information" section of the long form of the Veteran's DD Form 214, in stating the Veteran's type of separation, it states he was released from "active duty training." Therefore, this DD Form 214 clearly indicates that this period of service was not active duty, but was ACDUTRA, most likely the Veteran's period of military occupational specialty (MOS) training as it also shows he had six weeks of training as a Motor Transportation Operator in 2006. Thus, the evidence clearly demonstrates that this period of active service was ACDUTRA, not active duty. Therefore, to be deemed active military, naval or air service, the Veteran must have been disabled from an injury or disease incurred during such service, which neither the evidence shows nor does the Veteran contend. As such, this period of ACDUTRA cannot be counted to establish entitlement to non-service-connected disability pension benefits as it cannot be deemed to have been active military, naval or air service. Next, the Points Statement shows the Veteran attained 15 points in each of the periods of April 29, 2006 to October 30, 2006 and October 31, 2006 to October 31, 2007. As previously stated, although these points can be inferred to be AT from the Veteran's statements and the Obligations Statement, given the Court's remand, the Board's September 2019 remand directed VA to obtain clarification of these points. While LESs shows that the Veteran received active duty pay from June 3, 2006 to June 17, 2006 and from June 2, 2007 to June 16, 2007, the LESs does not distinguish the type of active service and additional clarification is needed. For the next period from October 31, 2007 to October 30, 2008, the Veteran earned 20 points. The Veteran contends that some of these points were earned for a combat lifesaving course that he was activated to attend in July 2008. The Veteran's service personnel records contain an order dated on June 26, 2008 demonstrating that the Veteran was "ordered to active duty for training (ADT) for the period shown," which was July 16, 2008 to July 20, 2008, for the purposes of attending a combat life-saving course. In addition, a copy of the diploma he received for completion of this course is in his service personnel records showing it ran from September 17 to 20 of 2008 and a Memorandum for Record dated July 20, 2008 shows the Veteran as one of the students who completed the 40-hour Combat Lifesaver Course. Thus, the Board finds that the evidence verifies that the Veteran attended the combat lifesavers course from September 16, 2008 to September 20, 2008. However, such service was not active duty as the Veteran contends, but the evidence clearly demonstrates that it was ACDUTRA as shown by the order. As with the previous periods of ACDUTRA, the record does not show, nor does the Veteran contend, that he has been disabled due to any injury or disease incurred during such period of service. Hence, the Board finds that this period of ACDUTRA cannot be counted towards establishing entitlement to non-service-connected disability pension benefits as it cannot be deemed to be active military, naval or air service. The Veteran also had 15 points during this annual period from October 31, 2007 to October 30, 2008, which seem to account for his AT. The Veteran's claims file contains an order ("Permanent Orders 004-020") showing that he was ordered to AT for the period of May 31, 2008 to June 14, 2008. As the Veteran has stated that he attended AT and does not contend that he attended any other periods of active service other than the combat lifesavers course during this annual period, the Board finds that this document is sufficient to verify that these 15 points were assigned for the Veteran's AT from May 31, 2008 to June 14, 2008. Moreover, there are service treatment records confirming that the Veteran was serving on a period of ACDUTRA during this period of time. This AT was authorized under 38 U.S.C. § 502(a). Pursuant to 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(3), National Guard duty under 38 U.S.C. § 502 is ACDUTRA, not active duty. The Board notes that the Veteran's service treatment records show that he sustained an injury to his low back during this period of AT. However, there is no evidence of a current low back disability that could be related to such injury. Moreover, the Veteran has never sought service connection for a low back disability, nor does he contend he has one related to the in-service injury. Hence, the Board finds that this period of AT cannot be counted toward the 90-day service requirement in determining the Veteran's entitlement to non-service-connected disability pension benefits because it cannot be deemed active military, naval or air service. The Points Statement finally shows that the Veteran had 12 points for the period of October 31, 2008 to May 18, 2010, when he was discharged from the Florida Army National Guard. The Veteran contends that he was activated from September 2009 until sometime in January 2010 but that he did not deploy to Kuwait with his unit. The Board has remanded the claim several times to attempt to obtain all of the Veteran's service personnel records to include records verifying this claimed period of service. The Veteran has been asked to provide whatever records he has and in February 2019, he sent in a Pre-Deployment Health Assessment from May 2009. However, although that may confirm that he was intended to be deployed sometime in the future, it does not verify that the Veteran was ordered and/or served on active service as he contends. Additionally, the number of points shown on the Points Statement do not support that contention that he was activated from September 2009 until January 2010. However, the Veteran's service personnel records contain an order showing he was ordered to AT for the period of October 1, 2009 to October 15, 2009 but an LES indicates that the Veteran was only paid active duty from October 1, 2009 to October 4, 2009, or four days, which does support the Veteran's contention that he had active service but did not deploy with his unit. In November 2021, the Veteran submitted incomplete training rosters dated from March 2009 to July 2009 showing that he signed in for pre-mobilization training on March 13, 2009, March 14, 2009, and April 4, 2009. He contends that training for mobilization was active duty. However, LES statements show that these days were inactive duty for training, specifically, unit training assemblies and additional training assemblies. The Veteran's attorney argues that, since VA has been unable to verify this period of service, that it should give the Veteran the benefit of the doubt and accept his statements as true that he had such service and that it was active duty service. However, his statements do not meet the evidentiary requirements for establishing such service. Service must be verified by either receipt of a discharge document from either the Veteran or the service department, such as a DD Form 214 or other type of certificate of discharge or by verification from the service department. See 38 C.F.R. § 3.203. The Veteran has not provided any service department records to demonstrate he was ordered to active duty or ACDUTRA in September 2009 much less that he was discharged from such in January 2010. Moreover, the Points Statement, which he and his attorney ask the Board to rely upon, does not corroborate that he has sufficient points for such length of duty since it only shows he had 12 points (or 12 days of active service) from October 31, 2008 to May 18, 2010 rather than approximately four months as the Veteran contends he has. Furthermore, the October 2009 order to AT is inconsistent with the Veteran's claim that he was on active duty or ACDUTRA from September 2010 to January 2010 because it is unlikely he would have been ordered to AT while he was already on active service. As the period from October 1, 2009 to October 4, 2009, was a period of AT, it cannot be counted toward the 90-day service requirement in determining the Veteran's entitlement to non-service-connected disability pension benefits because it cannot be deemed active military, naval or air service. The Board notes that the LES also indicates that from May 9, 2009 to May 16, 2009, or eight days, the Veteran was paid for active duty. These days, along with the four in October, would total 12 days, the number reflected on the Points Statement. Unfortunately, the LES does not distinguish the type of active service from May 9, 2009 to May 16, 2009 and additional clarification is needed. Lastly the Board notes that, in his February 2019 statement, the Veteran raised for the first time three days of service in support of Tropical Storm Faye operations beginning August 22, 2008. He submitted an order showing that he was awarded the Florida Active State Duty Ribbon for that period for "operation FAY." Unfortunately, the Board finds this service cannot be counted because it does not appear to have been federal service, but rather appears to be state service. The name of the award that the Veteran received makes it clear that this was for active state duty. Only federal service counts towards the service requirement. However, because the National Guard is controlled by the states, there are times that a member may be called up by the governor of the state in which said member serves. Such service does not count for VA pension benefits purposes. Such service does not even show up on the Veteran's Points Statement as all points were accounted for between the Veteran's combat lifesavers course and his AT and his LES does not show he was paid for active service during that time frame. In September 2019, the Board remanded the claim so that the claimed periods of active service could be verified. Specifically, VA was to contact the Defense Finance and Accounting System (DFAS) and request payroll reports for the periods between October 31, 2002 to October 31, 2003; October 31, 2004 to October 31, 2005; April 29, 2006 to October 31, 2006; October 31, 2006 to October 31, 2007; October 31, 2008 to October 31, 2009; and October 31, 2009 to May 18, 2010. As discussed above, while VA requested DFAS and Leave and Earning Statements for 2005 through 2010, statements were not obtained for the period from October 31, 2002 to October 31, 2003. As such, a remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order). Additionally, although a keycode was included for the Leave and Earning Statements which allows the Board to distinguish between active service and inactive service, the Board is still unable to determine whether the Veteran's active service was active duty, ACDUTRA, or some of type of active service. The Board also directed VA to contact the National Personnel Records Center (NPRC) or other appropriate repository, and request that it verify the Veteran's active service in the U.S. Naval Reserve during the period of October 31, 2002 to October 31, 2003 and clarify whether such service was active duty, ACDUTRA, or some other type of active service. The Board also directed VA to contact the Florida Adjutant General's Office and request that it verify the Veteran's service from October 31, 2004 to October 31, 2005, April 29, 2006 to October 31, 2006, October 31, 2006 to October 31, 2007, and October 31, 2008 to October 31, 2009, and clarify whether such service was active duty, ACDUTRA, or some other type of active service. While VA requested records from both NPRC and the Florida Adjutant General's Office, VA only received the Veteran's service treatment and personnel records, which upon review, do not contain DD Forms 214 or orders showing the type of service he was ordered to report for in order to clarify whether the Veteran's active service was active duty, ACDUTRA, or some other active service. Although the Veteran's service treatment and personnel records do not contain DD Forms 214, VA did not request or attempt to obtain the unit orders from the units the Veteran was assigned during the periods in question. The Board also notes that while an April 2021 VA Form 21-6789 (Deferred Rating Decision) reflects that additional attempts would be made to verify the Veteran's service and if unable, would complete a Memo of Unavailability, such was not completed prior to the return of this case to the Board. Therefore, the Board finds that a remand is warranted for an additional attempt to verify the Veteran's service. The matter is REMANDED for the following actions: 1. Contact the Defense Finance and Accounting System (DFAS) and request it provide a DFAS-DIMS-RCV-MMPA PRINT report (or any other report showing the Veteran's payroll during the listed periods) for the period from October 31, 2002 to October 31, 2003. 2. Contact the Veteran's unit(s) or other appropriate repository and ask that they verify the Veteran's periods of active service while assigned to the U.S. Naval Reserve from October 31, 2002 to October 31, 2003 and assigned to the Florida National Guard for the following periods: October 31, 2004 to October 30, 2005, April 29, 2006 to October 30, 2006, October 31, 2006 to October 31, 2007, and October 31, 2008 to May 18, 2010. If such cannot be verified through the Veteran's personnel records, then the unit orders, diaries, logbooks, roll calls, or other appropriate documents showing the unit history, to include whether the Veteran's assigned unit was ordered to active duty, ACDUTRA, or other type of active service, should be obtained and associated with the record. 3. If the Veteran's periods of active service cannot be verified, issue a Memorandum of Unavailability and inform the Veteran of the periods which cannot be verified. 4. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.