Citation Nr: 21021509 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-00 805 DATE: April 13, 2021 ORDER Entitlement to service connection for lumbosacral strain is granted. FINDING OF FACT The Veteran was involved in a motor vehicle accident (MVA) during qualifying service in the Oregon National Guard and, consequently, has a chronic lumbosacral strain. CONCLUSION OF LAW The criteria are met for entitlement to service connection for lumbosacral strain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from October 1986 to March 2000 and had additional service in the National Guard. This appeal to the Board of Veterans’ Appeals (Board) is from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). The Veteran testified in support of this claim during a hearing in May 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. In June 2020, the Board remanded this claim back to the RO (AOJ) for further development and consideration – including especially for additional medical comment concerning whether the Veteran’s back condition is the result of an injury he sustained in a MVA while in the National Guard. There since has been the required compliance – certainly acceptable substantial compliance, with that remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for lumbosacral strain As discussed in the Board’s June 2020 remand, the Veteran is claiming entitlement to service connection for a lumbosacral injury he sustained in a MVA while traveling home from National Guard annual training on October 28, 2000. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty (AD) and active duty for training (ACDUTRA) and for disability due to injury, though not also disease, incurred in or aggravated by inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(21), (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6(a) and (d).   Generally, for a successful claim, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). While certain “chronic” diseases – such as arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty (see 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a)), presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). It further deserves mentioning that 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s September 2020 VA spine examination on remand confirmed that he currently has a low back disability, lumbosacral strain, which was first diagnosed on October 29, 2000, so the day following the MVA at issue.   The Veteran testified during his May 2020 hearing before this Board that he was traveling home that preceding day – so on October 28, 2000, from annual training with his National Guard unit. He also has since, in January 2021, submitted a memorandum from Colonel (COL) Timothy J. Deckert, Deputy Chief of Staff, Logistics, of the Oregon National Guard. This memorandum confirms the Veteran was on federally-funded, active duty pay status on October 28, 2000, traveling home from active duty. Consequently, the injury he sustained in that MVA was during qualifying service. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Also, notably, COL Deckert explained that the Veteran’s original line of duty (LOD) determination is no longer accessible, and has not been since 2006, when the old LOD system of record was replaced. This is consistent with the November 2020 Oregon National Guard memorandum previously filed, indicating no records regarding Veteran’s LOD merely could not be located – not that his LOD request instead had been denied or otherwise lacked merit. The Veteran’s hearing testimony under oath, paired with COL Deckert’s written statement regarding the Veteran’s duty and pay status at the time in question, is sufficient to find qualifying service on October 28, 2000. The Veteran previously filed emergency room and follow-up treatment notes establishing that his MVA was on that date, and the January 2021 VA examiner opined on remand that the Veteran’s current lumbosacral strain was caused by his MVA on October 28, 2000, since this diagnosis dates back to the day following that MVA (once treated) with continuity of symptoms during the many years since.   There is no countervailing evidence of equal or greater probative weight tending to contrarily disassociate the Veteran’s current lumbosacral strain from this same diagnosis he received following his injury in the MVA on October 28, 2000 during qualifying service. For these reasons and bases, and certainly when resolving all reasonable doubt in his favor, service connection must be granted for his lumbosacral strain. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.