Citation Nr: 21077472 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-08 730A DATE: December 29, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in December 2017. The Veteran's December 2017 death certificate lists the cause of death as small cell lung cancer with tobacco use as a probable contributor to death. 2. Lung cancer is not shown in service, nor is it shown to be related to service. 3. The Veteran did not have any service-connected disabilities in effect at the time of his death. 4. The Veteran's service following the September 11, 2001 terror attack and service from 2002 to 2003 at Indian Point nuclear power plant were under orders issued by the Governor of New York and are not qualifying Federal service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2008 to February 2009 and from January 2012 to March 2013. The Veteran died in December 2017, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Appellant testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service connection for cause of death The Appellant contends the Veteran's lung cancer was caused by exposure to chemicals while serving as a first responder to the September 11 terror attack in New York in 2001, or in the alternative, his lung cancer was due to being exposed to ionizing radiation in 2002 to 2003 while serving as a security guard at Indian Point nuclear power plant. The Veteran's December 2017 death certificate lists the cause of death as small cell lung cancer with tobacco use as a probable contributor to death. Although the Veteran was not service connected for lung cancer at the time of his death, the Board will consider whether this condition can be service connected. Service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service connected. To establish service connection for a disability that caused a Veteran's death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Active service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24). Active duty for training includes full-time duty with the National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101 (22)(C); 38 C.F.R. § 3.6 (c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. Inactive duty training includes service with the National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505); Clark v. United States, 322 F.3d 1358, 1366 (Fed .Cir. 2003) (explaining that "members of the National Guard only serve the [F]ederal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor."). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of his or her state. "[M]embers of the National Guard only serve the Federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility as a veteran based on a period of duty as a member of a state National Guard, a guardsman must have been ordered into Federal service by the President of the United States under 38 U.S.C. §§ 316, 502, 503, 504, or 505. Hence, for the Veteran's service in the National Guard, only periods of Federalized service are qualifying service for the purpose of VA compensation benefits. The Board notes that the Veteran served on active duty from January 2008 to February 2009 and from January 2012 to March 2013; however, the record does not reflect, and the Appellant has not contended, that Veteran's lung cancer arose from or was aggravated by these periods of active service. Rather, the Appellant has consistently contended that the Veteran's lung cancer is a result of service in response to the terrorist attacks on September 11, 2001, or in the alternative, was a result of exposure to ionizing radiation in 2002 to 2003 at Indian Point. Although the Appellant has alleged that the Veteran's service in 2001 through 2003 qualified as "active duty" service, the evidence shows otherwise. The evidence shows that the Veteran served in the National Guard for over 30 years. The record shows that the Veteran was called to state active duty by the Governor of New York from September 11, 2001, to December 31, 2002, a period of 200 days. The appellant was authorized wear of the New York State Defense of Liberty Medal for his service in support of the mission during this period. Orders from 2002 and 2003 show that the Veteran was ordered into the active military service of the State of New York, by direction of the Governor. He was not ordered to Federal service by the President of the United States. These service periods have been determined to be in service to the state of New York and are not qualifying Federal service for VA benefits. Absent competent evidence of qualifying Federal military active service during the period in which the appellant claims the disabilities occurred, service connection for cause of death, must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board also considered whether the Veteran's lung cancer was incurred during his periods of active duty. The Veteran's service treatment records do not contain complaints, treatment, or diagnosis for lung cancer. The evidence does not show that lung cancer developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. Further, the Appellant and her representative make no argument, and there is no evidence showing, that any of the claimed disabilities were incurred or aggravated during the period from January 2008 to February 2009 or from January 2012 to March 2013. In all instances, the Appellant relates the claimed disability as related to his service while serving under orders issued by the Governor of New York. It is clear that the Veteran provided long, faithful and valued service to the nation. However, the Board has carefully reviewed the record and it has been unable to identify a basis upon which service connection may be granted. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.