Citation Nr: 21014926 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-04 090 DATE: March 16, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Appellant served in the South Carolina Army National Guard from May 1975 until his honorable retirement in March 1996. During his service, he served on active duty for training from August 1975 until his honorable discharge in December 1975 and had numerous other periods of active duty for training and inactive duty for training. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision(s) by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2021, the Appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in South Carolina. A transcript of the hearing has been associated with the record on appeal. As will be addressed in greater detail below, the Board needs additional information to determine the Appellant’s claims and periods of active and/or other Federal service (and specifically excluding inactive service and other non-Federal service). The Board notes that the Appellant asserts entitlement based upon 20 years of service in the United States Army. Although the Board understands the Appellant’s assertion, as will be addressed below, service in the Army National Guard does not provide for VA benefits for injuries or disabilities incurred during the entire period of service in the Army National Guard. Military Service 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 Appellant’s service in the National Guard, only periods of Federalized service are qualifying service for the purpose of VA compensation benefits and his active and inactive duties as a member of the State militia are not qualifying for service for the purpose of VA compensation benefits. 1. Entitlement to service connection for bilateral hearing loss The Appellant indicated that his bilateral hearing loss may have onset during his service in the South Carolina Army National Guard. The AOJ should attempt to verify the Appellant’s period(s) of active duty for training or inactive duty for training. The Appellant’s claims file does not appear to contain his complete service personnel records for his period of service in the South Carolina Army National Guard. As they may contain information regarding the Appellant’s dates of service and/or report of in-service injury, a remand is required to obtain them. Specifically, for the periods of “Active Duty” noted above, determination if they were Federal Service, including but not limited to the 81 days of active duty between May 1985 and May 1986. See Military Personnel Records, Army National Guard Current Annual Statements provided after April 1, 1989. The Board notes that there was a period from January 3, 1986 until January 26, 1986 in which the Appellant had service in EURA-Belgium, but that does not account for the entire period of 81 days of active duty noted within the Appellant’s military personnel records. Furthermore, the Appellant’s Army National Guard Retirement Credits Record (NGB Form 23) for May 1985 through May 1986 reflects only 24 points of active duty, active duty for training, or full time training duty, inconsistent with other information included within his service personnel record outlined above. See Military Personnel Records, Army National Guard Retirement Credits Record (NGB Form 23) provided prior to April 1, 1989. Finally, the Appellant’s Report of Separation and Record of Service (NGB Form 22) does not have any prior active federal service nor prior reserve service. The Appellant was afforded a VA examination in July 2015. The July 2015 VA examiner opined that the Appellant’s hearing loss is less likely than not (less than 50 percent probability) caused by or a result of an event in military service because records show [hearing] loss prior to service and [the Appellant’s hearing loss] has fluctuated over time, sometimes worse, sometimes better; and there is no evidence to indicate that it is at least as likely as not caused by or exacerbated by military service. However, the VA examiner only including the conclusory statement that “there is no evidence to indicate that it is at least as likely as not caused by or exacerbated by military service,” is inadequate. In contrast, if there is a negative nexus opinion, the VA examiner must explain why the hearing loss is not related to his periods of active duty for training (or other federal service) exclusive of his inactive duty for training. Where VA provides an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Appellant provided a June 2018 private provider opinion that diagnosed bilateral moderate sensorineural hearing loss. Unfortunately, the private provider hearing evaluation was not tested under the criteria required for VA rating purposes and is therefore inadequate and not probative. Specifically, although the private provider included a “Discrimination in Quiet” score, that is not a Maryland CNC word recognition test that is required. Furthermore, the private provider provided a nexus opinion that the Appellant’s bilateral hearing loss is at least as likely as not (50 percent probability or greater) occurred while he was on active duty but does not provide any rationale nor consideration that the Appellant’s service was entirely in the South Carolina Army National Guard nor the Appellant’s preexisting bilateral hearing loss. For the above reasons, the private provider evaluation is inadequate and not probative. Accordingly, the case is REMANDED for the following action: 1. Obtain the Appellant’s complete service personnel records, to include all documents pertaining to his service in the South Carolina Army National Guard. Verify all active duty for training and inactive duty training dates for alleged service in the South Carolina Army National Guard from 1975 to 1996. Because of the inconsistent records, a request should be made to the Defense Finance and Accounting Service (DFAS) to determine all periods of service and classifying as active duty for training or other Federal service and attempt to obtain copies of all orders for any periods of service. Document all requests for information as well as all responses in the claims file. 2. After the above has been completed, obtain an addendum opinion from an appropriate clinician regarding whether the Appellant’s bilateral hearing loss is at least as likely as not related to his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service) with consideration for the Appellant’s duties during all included periods of service (Field Wireman prior to September 1992 and MSE Transmission System Operator from September 1992); and including aggravated beyond its natural progression by his active duty for training and/or other Federal service (and specifically excluding inactive service and other non-Federal service) with consideration for the Appellant’s duties during all included periods of service (Field Wireman prior to September 1992 and MSE Transmission System Operator from September 1992). The examiner must provide a detailed rationale, including an explanation relating to the Appellant’s active duty for training service and/or other Federal service (and specifically excluding inactive service and other non-Federal service). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.