Citation Nr: 21006243 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-03 605A DATE: February 3, 2021 ORDER Eligibility for internment of the decedent's remains in a Department of Veterans Affairs (VA) national cemetery is denied. FINDING OF FACT The decedent served in the Army Reserves and Army National Guard from August 1969 to April 1970 with a period of active duty for training (ACDUTRA) from October 31, 1969 to March 18, 1970, but no active duty service. CONCLUSION OF LAW The decedent is not eligible for interment in a VA national cemetery. 38 U.S.C. §§ 101(2), 2402; 38 C.F.R. §§ 3.1(d, n), 3.12, 3.303(c), 3.354. REASONS AND BASES FOR FINDING AND CONCLUSION The decedent served United States Army National Guard from August 1969 to April 1970, which included a period of ACDUTRA from October 31, 1969 to March 18, 1970. He died in May 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 decision of VA National Cemetery Administration (NCA) in St. Louis, Missouri. In March 2015 and June 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Eligibility for internment in a VA national cemetery The appellant requests an eligibility determination for burial of the decedent in a national cemetery. Any person classified as a “veteran” is eligible for burial in a national cemetery. 38 U.S.C. § 2402(a); 38 C.F.R. § 38.620(a). The term “veteran” means any person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). “Active military, naval, or air service” includes active duty, and “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 any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Eligibility for burial in a national cemetery is also available to any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs while such member is hospitalized or undergoing treatment at the expense of the United States for an injury or disease contracted or incurred under honorable conditions while performing ACDUTRA, INACDUTRA, or undergoing such hospitalization or treatment. 38 U.S.C. § 2402(b); 38 C.F.R. § 38.620(b). The threshold question in this case is whether the decedent had “active military, naval, or air service” under the law, and, therefore, attained “veteran” status. 38 U.S.C. § 2402; 38 C.F.R. § 38.620. The decedent died in May 2012. His death certificate lists his cause of death as pneumonia, respiratory failure and chronic obstructive pulmonary disease (COPD). The place of death was Lexington Medical Center. Military personnel records show that the decedent enlisted in the United Stated Army National Guard in August 1969 for an obligation of six years. See Undated Enlistment Contract, received by VA August 20, 2019. He was ordered to active duty for training (ACDUTRA) on October 31, 1969. However, additional military personnel records document the decedent was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards due to a diagnosis of anemia, secondary to iron deficiency, etiology undetermined, which existed prior to service and was not aggravated by service. See Medical Board Proceedings, dated February 26, 1970. His DD Form 214 documents ACDUTRA from October 31, 1969 to March 18, 1970, with an honorable discharge. After considering the evidence of record in this case, the Board finds that the decedent did not have “active military, naval, or air service”, and did not become disabled or die from a disease or injury incurred in line of duty during his period of ACDUTRA. In this regard, the decedent was found to be unfit for enlistment due to a diagnosis of anemia, secondary to iron deficiency, undetermined etiology, and not incident to his Army National Guard service. Medical Board Proceedings dated in February 1970 note that the condition existed prior to service and was not aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, during his lifetime, the decedent had not been granted service connection for any disability. As noted, the decedent’s death certificate lists his causes of death as pneumonia, respiratory failure, and chronic obstructive pulmonary disease. See June 2012 Death Certification. There is no post-service medical evidence of record. The appellant was asked to submit medical records or releases in support of her claim in April and May 2018. However, she did not respond. The Board is grateful for the decedent’s United States Army National Guard service. However, under the applicable laws and regulations, his service does not make him eligible for burial in a national cemetery. Because the law is dispositive on this question, the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.