Citation Nr: A21020349 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 200211-67833 DATE: December 21, 2021 REMANDED The claim for compensation benefits is remanded. REASONS FOR REMAND Evidence suggests that the Appellant served on active duty beginning in July 1969 and that his service included deployment to the Republic of Vietnam. The date and character of his discharge are unknown. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2019 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which found a lack of qualifying service and that while the evidence of record indicated that the Appellant possibly had active service, it did not support a finding that he had an honorable discharge. In a February 2020 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the October 2019 decision to the Board and requested a hearing with a Veterans Law Judge (VLJ), and indicated that he would like to have the opportunity to submit additional evidence in support of his appeal within 90 days after his hearing. In April 2021, the Appellant testified at a hearing before the Board. A copy of the transcript has been associated with the claims file. As the Appellant requested a hearing under AMA, the Board will consider the evidence of record as of the date of notice of the October 2019 decision on appeal and any evidence presented at the Board hearing. At the Board hearing, the Appellant's representative stated that he would be waiving his right to submit any additional evidence within 90 days following the hearing. "Veteran" status, generally Generally, to qualify for VA benefits, a claimant must be a "veteran" under the law. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2), a "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of 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(24); 38 C.F.R. § 3.6(a); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); McManaway v. West, 13 Vet. App. 60, 67 (1999) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period). Thus, in order to establish veteran status with respect to a period of ACDUTRA or INACDUTRA, and therefore eligibility for service connection, the record must establish that a claimant was disabled or died due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled or died from an injury (or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in the line of duty during a period of INACDUTRA. Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). In February 2018, the Appellant sought assistance from the VA in verifying his service. His representative indicated that they had tried to locate his DD-214 and had been unsuccessful. In addition, he filed a claim for service connection for bilateral hearing loss and tinnitus. A military personnel record dated March 28, 1969, indicated the Secretary of the Army ordered the Appellant to active duty for a period of 36 months. The RO sought information from the Appellant as to whether he served with a Reserve or Guard unit and asked for the Appellant to send his DD-214. The RO made requests in February 2018 and May 2018 for records for the period from July 11, 1969 to February 1, 1971 from the National Personnel Records Center. An enlistment contract indicated a delayed entry date of July 11, 1969. An additional contract indicated entry into the United States Army Reserve on March 28, 1969 with a date of discharge or release of July 11, 1969 with a stamped note indicating "No active federal service." The signed form indicated that the Appellant was voluntarily enlisting on July 11, 1969, in the U.S. Army for a period of three (3) years. The records also contain a signed Statement for Enlistment in the Army dated July 7, 1969. In a June 2018 letter, the AOJ informed the appellant that his claim for benefits was denied because he did not have any qualifying service and did not meet the definition of a "Veteran" for VA purposes. In July 2018, the Defense Finance and Accounting Service (DFAS) provided Army Active duty pay records for July 1969 to February 1971. The Appellant requested reconsideration based on this evidence. The RO made additional record requests to verify service and character of discharge between July 11, 1969 and February 1, 1971 and reserve service between February 1, 1971 and March 27, 1975. It was indicated that all personnel documents and/or service treatment records (STRs) were uploaded in response to the PIES request. A DD-214 was not among those records. In October 2019, the RO issued an Administrative Decision finding a lack of qualifying service. The Veteran appealed to the Board. The Appellant's CAPRI records indicate he served in Vietnam on the helicopter flight line. Vet Center records suggest service at Camp Martin Cox and Bearcat Camp in 1970 1971. At his Board hearing, the Appellant stated that he was a flight operations mechanic and was deployed to Vietnam for approximately 10 months. He stated that upon returning to the U.S., he went through a processing center in San Francisco and was sent home without any order papers and never received a discharge. Under the AMA, remand is proper to correct an error by the AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a). The Board finds remand is necessary to make attempts to verify the Appellant's service in Vietnam, as this might lead to additional information as to the character of his service and reasons for separation. The RO should make appropriate requests for the Appellant's "Certificate of Release of Discharge from Active Duty" form (DD Form 214) or any other documentation pertaining to separation and the conditions of his service, to include in Vietnam. The failure to verify Vietnam service and take additional appropriate measures to determine the nature of the Veteran's service was a pre-decisional duty to assist error, and remand is warranted. The matter is REMANDED for the following action: Make appropriate efforts to verify the Appellant's service in Vietnam and to obtain a copy of his DD Form 214 as well as any other documentation that verifies the nature and condition of any military separation. If such documents need to be reconstructed, take appropriate efforts to do so as pay vouchers and personnel records suggest active service for this Appellant. Document all requests for information as well as all responses in the claims file. Any actions taken shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Notation of such should be associated with the claims file. If unable to obtain the identified records, take action in accordance with 38 C.F.R. § 3.159(e). Thereafter, readjudicate the claim. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.