Citation Nr: 21075206 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-14 765 DATE: December 17, 2021 ORDER Adjudication of the Veteran's claim for service-connected disability benefits based, at least in part, on prior periods of honorable service was not barred by his reentry on active duty; to this extent the appeal is granted. FINDING OF FACT The Veteran's May 2014 claim for service-connected disability benefits was based, at least in part, on his prior periods of honorable service, to include service in Southwest Asia. CONCLUSION OF LAW The Veteran's reentry on active duty does not bar his valid May 2014 claim for VA disability benefits based, at least in part, on prior periods of honorable service. 38 U.S.C. §§ 101(2), 5103, 5103A, 5304; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.700. REFERRED MATTER As it relates to the current appeal, the Veteran initially filed a claim for VA disability compensation benefits in May 2014. See May 2014 VA Form 21-526EZ. In September 2015, the agency of original jurisdiction (AOJ) notified the Veteran that his claim would not be processed because he was still on active duty at that time. The Veteran was advised that his claim would be reviewed upon his release from active duty. The Board recognizes that the Veteran subsequently filed a claim for service-connected disability benefits prior to his release from active duty in September 2020. See May 2020 VA Form 21-526EZ. The Veteran's September 2020 service-connected disability benefit claims were addressed in February and August 2021 rating decisions. However, the Board observes that it appears certain service-connected disability claims submitted by the Veteran in May 2014 have not yet been addressed in a rating decision following the Veteran's release from active duty in September 2020. As discussed further below, adjudication of the Veteran's claim for service-connected disability benefits based on prior periods of honorable service was not barred by his reentry on active duty in September 2007. To the extent that any element of the Veteran's May 2014 claim for VA disability benefits remains pending, such is referred to the AOJ for appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, with active duty service from October 1995 to September 1997, May 1999 to September 1999, January 2000 to May 2000, December 2000 to September 2004, November 2006 to May 2007, and from September 2007 to July 2020. As a preliminary matter, the Veteran requested a Board hearing on his May 2019 substantive appeal. See May 2019 VA Form 9. The Veteran requested to postpone his Board hearing scheduled for March 2020. See March 2020 correspondence from the Veteran. The Veteran was rescheduled for a Board hearing in May 2020, June 2020, and again in November 2020. The Veteran did not appear for the scheduled hearing in November 2020, and has not requested a new Board hearing. Accordingly, the Board considers the Veteran's hearing request to be withdrawn. 38 C.F.R. § 20.704(d). Adjudication of the Veteran's claim for service-connected disability benefits based on prior periods of honorable service was not barred by his reentry on active duty in September 2007. As noted above, the Veteran filed an initial claim for service-connected disability compensation benefits in May 2014. The Veteran submitted service treatment records indicating his claim was based, at least in part, on prior periods of honorable service. In September 2015, the agency of original jurisdiction (AOJ) notified the Veteran that his claim would not be processed because he was still on active duty at that time. The Veteran was advised that his claim would be reviewed upon his release from active duty. The Veteran timely appealed the September 2015 VA decision. See September 2016 notice of disagreement. In a March 2019 statement of the case, the AOJ determined the Veteran's May 2014 application for VA disability compensation benefits was not a valid claim for benefits. The AOJ indicated that the Veteran did not meet the criteria for "veteran status" for VA benefits purposes because he was currently serving on active duty. In this case, the Veteran contends that he had acquired "veteran status" prior to his reentry on active duty in September 2007, and that the AOJ erred in determining that his May 2014 claim for service-connected disability compensation benefits was invalid. See also May 2019 VA Form 9; see also October 2021 Appellate Brief. With respect to the Veteran's assertions, the Board notes that VA's Office of General Counsel issued a precedential opinion concerning the effect of a veteran's return to active duty upon claims for VA benefits. See VAOPGCPREC 10-2004. The Office of General Counsel held that "a veteran's reentry into active duty generally does not alter the legal rights and responsibilities of the veteran and VA with respect to a pending claim for benefits. No statute or regulation establishes special procedures or other limitations governing the adjudication of claims of veterans who have reentered active duty." The opinion further states that a person who has attained the status of a veteran based on separation from service does not lose that status merely because he or she has entered into a new period of active duty. While veterans are barred from receiving both active service pay and VA compensation or pension for the same period, the opinion noted that "no statute or regulation limits the rights of such veteran to pursue claims for VA benefits or otherwise imposes a change in the status of their benefit claims based on their return to active duty." See 38 C.F.R. § 3.700(a). The opinion also held that, where a claimant's return to active duty prevents VA from taking a necessary action, the claim may be described as being in a deferred or suspended status pending the veteran's return from active duty. In this case, the Board recognizes that the Veteran did not have a "pending claim" for benefits prior to his reentry on active duty in September 2007. However, the above opinion noted that no statute or regulation limits the rights of a person who has attained the status of a veteran to pursue claims for VA benefits or otherwise imposes a change in the status of their benefit claims based on their return to active duty. Here, "veteran status" had been established based on the claimant's prior periods of honorable active duty service. As such, the Board finds that his reentry on active duty in September 2007 did not preclude him from pursuing a claim for VA benefits, and the Veteran's March 2014 claim for service-connected disability compensation benefits was not invalid. Insofar as the Veteran's indefinite return to active duty in September 2007 prevented VA from taking a necessary action in the adjudication of his claim for disability benefits, the Board finds the Veteran's claim should have been described as being in a deferred or suspended status pending his return from active duty. See May 2009 and March 2013 Orders (indicating a voluntary, indefinite active duty commitment). In sum, the Board finds adjudication of the Veteran's claim for service-connected disability benefits based, at least in part, on prior periods of honorable service was not barred by his reentry on active duty in September 2007. As such, the Board finds the Veteran's May 2014 claim for VA disability benefits is valid, and to this extent, the appeal is granted. As discussed above, to the extent that any element of the Veteran's May 2014 claim for VA disability benefits remains pending, such has been referred to the AOJ for appropriate action. V. Chiappetta 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.