Citation Nr: 21073443
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 18-31 000
DATE: December 8, 2021

REMANDED

Whether the Appellant has qualifying service to establish basic eligibility to receive Department of Veterans Affairs (VA) benefits is remanded.

REASONS FOR REMAND

The Appellant served on active duty for training from July 1977 to September 1977.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that determined the Appellant's military service does not entitle him to VA benefits.

As an initial matter, the Board notes the Appellant filed two claims for benefits prior to the claim that is currently on appeal, in March 1979 and in July 1985.  Both of these claims were closed as abandoned after the Appellant failed to respond to May 1980 and May 1985 letters requesting additional information, including regarding the Appellant's separation from service, in order to develop the claims.  Neither of these letters constitutes a decision by VA that would require reopening. 

Whether the Appellant has qualifying service to establish basic eligibility for VA benefits is remanded.

In order to be eligible for VA benefits, a claimant must establish status as a veteran, which means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.  38 C.F.R. § 3.1(d).

The term "active military, naval, or air service" includes active duty, 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 the line of duty, and 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.  38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6.  Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection.  38 U.S.C. §§ 101(24), 106, 1110, 1131.

The Appellant's DD Form 214 and personnel records indicate that the period of service from July 1977 to September 1977 was ACDUTRA.  

The Appellant filed a claim for service connection for stroke residuals and right eye blindness arising from his period of ACDUTRA in 1977.  As the Appellant's claims are based on a period of ACDUTRA service, it must be shown that he became disabled as a result of a disease or injury incurred or aggravated during this period.  In the absence of such evidence, the period of ACDUTRA will not qualify as "active military, naval, or air service" and the Appellant would not achieve veteran status for purposes of these claims. 

The Board cannot determine whether the period of ACDUTRA service is qualifying service for establishing veteran status until it is determined whether any of the disabilities the Appellant has claimed benefits for are the result of disease or injury incurred or aggravated during the ACDUTRA service.  The record contains the Appellant's service treatment records and some current private treatment records, but there is insufficient medical evidence for a determination, particularly relating to whether either claimed disability was incurred or aggravated in the Appellant's period of ACDUTRA in 1977.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA is not permitted to base decisions on its own, unsubstantiated, medical conclusions).  VA has not completed any development of the Appellant's underlying service connection claims; therefore, a remand is necessary to develop the underlying claims.

The matter is REMANDED for the following action:

Complete all appropriate development of the Appellant's claims for service connection for a right eye disability and for stroke residuals, including, but not limited to, obtaining medical opinions regarding whether either disability was incurred or aggravated in the period of ACDUTRA from July 1977 to September 1977.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Josey, 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.