Citation Nr: 21076080 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-30 885 DATE: December 22, 2021 REMANDED Entitlement to service connection for a stomach condition (Crohn's disease) is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for depression, including as secondary to the stomach condition (Crohn's disease), is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to February 1981 and had additional service in the National Guard until June 2001, so presumably also on active duty for training and inactive duty training. In March 2021, in support of these claims, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. These claims must be further developed before being decided on appeal, however, so the Board is remanding them back to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). 1. Entitlement to service connection for a stomach condition (Crohn's disease) is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for depression, including as secondary to the stomach condition (Crohn's disease), is remanded. As already alluded to, the Veteran had additional service in the National Guard until 2001, but it remains unclear whether any periods of that additional service qualify as active duty (AD), active duty for training (ACDUTRA), or inactive duty training (INACDUTRA). "Active military, naval, or air service" includes AD and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). This typically refers to the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the 12, incremented four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. To the extent this claimant is alleging that he has disability owing to an injury or a disease incurred or aggravated during his time in the National Guard, he must first establish his status as a "Veteran" in connection with that service and then that he was disabled from disease or injury incurred or aggravated in the line of duty during that service, such as while on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of any such evidence, the period of service would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101(2)-(24). A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. See Allen v. Nicholson, 21 Vet. App. 54 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). Although the claims file contains some military personnel records relating to the Veteran's periods of ACDUTRA and INACDUTRA, including a Chronological Statement of Retirement Points, there is no document that reflects the precise dates when he served in an ACDUTRA or INACDUTRA capacity. This information is crucial in addressing his contentions that his disabilities are related or attributable to his ACDUTRA and INACDUTRA service. In addition, the Veteran has not been afforded VA examinations in response to his claims of entitlement to service connection for a stomach condition (more specifically, Crohn's disease) or depression, including as secondary to the stomach condition (Crohn's disease). VA's duty to assist includes providing a medical examination for a medical opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). And, here, the Board finds that there is competent evidence that the Veteran's claimed disabilities may be associated with his active military service, particularly his additional service in the reserves. See, e.g., March 2021 Board Virtual Hearing Transcript. Thus, the Board finds it necessary to have him examined for a medical nexus opinion concerning the etiologies of his claimed stomach condition and depression and purported relationship with his military service. McLendon, 20 Vet. App. at 79. Accordingly, these claims are REMANDED for the following action: 1. Contact the appropriate entities, including the National Personnel Records Center (NPRC) and any other appropriate source (since the Joint Services Records Research Center (JSRRC) no longer exist), and request verification of all dates of AD, ACDUTRA, and INACDUTRA this claimant had in the Army, South Carolina Army National Guard, or other military branch or component. Reports of retirement points are insufficient to meet the requirement of this remand order. A listing of the specific dates of service and whether within those dates the service can be characterized as AD, ACDUTRA, or INACDUTRA is required. All information obtained in this regard must be added to the record. If any such information cannot be obtained, fully document the reasons, and provide this explanation in the claims file. 2. Ensure that any medical records associated with periods of reserve service have been obtained. If unable to locate such records, specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the Veteran of the specific records unable to be obtained; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action VA will take with respect to the claims. The Veteran must then be given an opportunity to respond. 3. Also ask the Veteran to authorize VA to obtain all other outstanding records pertinent to these claims, including any confidential private treatment records, following proper VA procedures (38 C.F.R. § 3.159(c)). Also appropriately notify him if unable to obtain records he provides sufficient information concerning (38 C.F.R. § 3.159(e)). 4. After completing the above-requested development, provide the Veteran VA examinations with the appropriate clinician(s) to determine the nature and etiologies of his claimed stomach condition, including especially Crohn's disease, and depression. A complete copy of this remand and all relevant medical and other records must be made available to the examiner(s) for review and consideration of the pertinent history. The examiner(s) should review the pertinent evidence, including the Veteran's lay assertions, and undertake all necessary diagnostic testing and evaluation. Based on review of the results of the Veteran's physical examination, his statements regarding the development and treatment of these conditions, and all other relevant evidence in the claims file, including that cited in this remand, the examiner(s) should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran's stomach condition, including especially Crohn's disease, began during qualifying active military service or is otherwise related or attributable to qualifying service (either caused or aggravated by it)? (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran's depression began during qualifying active military service or is otherwise related or attributable to qualifying service (either caused or aggravated by it)? (c.) Is it at least as likely as not (50 percent or greater probability) the Veteran's depression alternatively was caused OR is aggravated by his stomach condition (Crohn's disease), if it is first determined the stomach condition is attributable to his service? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the Veteran's depression by his stomach condition (Crohn's disease). Explanatory rationale for all opinions provided is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The absence of evidence of treatment for any of the claimed disabilities in the Veteran's service treatment records (STRs) cannot, alone, be sufficient reason for providing an unfavorable opinion. This is, however, a relevant consideration, among others provided the examiner also discusses why it is reasonable to have expectation of more documentation in the file, such as in the way of treatment records or sooner diagnoses, but less so in the secondary service connection context. The examiner also is advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically acknowledged and considered in formulating all opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.