Citation Nr: 21025816 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-22 216A DATE: April 29, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served in the Army National Guard from July 1989 through November 1993 and had a period of federalized active duty service from November 1990 until June 1991 (including service in Southwest Asia). She also had a period of verified active duty for training (ACDUTRA) from January to May 1990, and alleges she had other periods of qualifying (federalized) service (which have not been verified by the service department). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision that declined to reopen the claim of service connection for a low back disability. In March 2020 a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. An April 2020 Board decision reopened the claim and remanded the matter for further development, specifically U.S. service department certification of whether the Veteran was on federalized active duty service during the period from September 2 to September 6, 1991 (when an alleged back injury occurred), and if so, for further follow-up development. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. The Veteran claims that the back disability for which service connection is sought is due to an injury she sustained on federalized National Guard service in September 1991. In support of her claim she has submitted a “buddy statement” from a former fellow serviceperson corroborating that during training on approximately September 4, 1991, she sustained a back injury and was placed on light duty. Her National Guard service treatment records (STRs) show that (when she was serving under the name listed as AKA on p. 1) she was seen on September 3 (apparently, as date is not clear) with a 5 day history of back pain that began when she was doing sit-ups. A September 11, 1991 STR notes continuing back pain and a diagnosis of lumbar strain with mild sciatic pain. An October 1991 STR notes continuing low back pain, and a diagnosis of possible herniated nucleus pulposus. A 1994 Arkansas National Guard periodic examination report notes the Veteran had a 3 year history of intermittent back pain. The records also show that following service the Veteran was involved in a motor vehicle accident (MVA) that apparently included trauma to her spine. She has stated that she already had an ongoing low back disability due to the 1991 injury on federalized National Guard service when the postservice MVA occurred. A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a governor. For a period of National Guard service to be qualifying service for VA compensation benefits, the period must have been when the National Guardsman was ordered into Federal service under 38 U.S.C. §§ 316, 502, 503, 504, 505; 38 C.F.R. §§ 3.6 (c), (d). Here, as noted above, whether the Veteran was serving on federalized active duty when the claimed back injury (doing sit-ups) occurred (in either late August or early September 1991) has not been verified. Considering the current factual record and the governing law discussed above, the critical questions in this case are: First, whether the Veteran was indeed serving on federalized active duty service when she sustained the injury for which she was seen in September and October 1991. If that period was not federalized active duty, it is not qualifying service for VA compensation benefits, and the claim would lack legal merit. Second, if the period in question is established to have been federalized service, considering her reports and that she also was in a postservice MVA that involved trauma to the spine, whether her current back disability is due to the injury on federalized National Guard or is due (in whole or in part) solely to a postservice injury. With the above in mind, the April 2020 Board remand requested first development to determine the Veteran’s duty status when the injury (during sit-ups) underlying this claim occurred, whether she was then on federalized active duty. If that was confirmed, other development was to follow. A review of the record found that the threshold development sought was not completed (apparently due at least in part because the request for information was not made, as indicated in responses received, under the name under which the Veteran was then serving in the Arkansas National Guard, and treated at the Camp Robinson Medical Clinic- shown as the AKA above, and listing the unit in which she served). [The record shows the requests for information apparently were interpreted as requests for STRs-as it was indicated that all available STRs had been sent. However, there is nothing in the record indicating that the Veteran’s National Guard personnel records, which might contain more enlightening information in this matter, were sought.] If the period in question is established to have been federalized active duty service, further complete development of pertinent information, regarding the current state of the claimed disability, etiology of all pathology, and any pertinent postservice injuries would be necessary. Proper analysis of this claim based on the current state of the record is not possible. A remand for corrective action (to ensure compliance with prior remand instructions) is necessary. The matter is REMANDED for the following action: 1. Arrange for exhaustive development (to include for the Veteran’s complete National Guard service personnel records, and from the Department of the Army if those are not available or lack sufficient information) to confirm conclusively whether she was serving on federalized active duty service when she sustained the injury doing sit-ups underlying her claim of service connection for a back disability. The request for information must identify the name under which she was serving and the Arkansas National Guard unit in which she served. If more specific information is needed, elicit it from the Veteran. The information sought from the service department is identification of all periods of the Veteran’s active duty (ACDUTRA and INACDUTRA) in late August and through September and October 1991. Provide a Memorandum for the record identifying any (and all) her periods of federalized active duty service then, certified by the service department (indicating whether her service was state-controlled and under Title 32 of the U.S. Code, or under Title 10 of the U.S. Code, or whether she was formally called into federal service by the President of the United States, and how that was established, i.e., the orders under which she served). If the information sought is not available, describe the scope of the search conducted in detail so that it may be determined whether the development was indeed exhaustive. 2. When the development sought above is completed, arrange for any further development deemed necessary (e.g., for more detailed information regarding postservice back injury(ies) and treatment, the complete current low back disability picture, and any medical opinion needed regarding whether current back pathology and associated manifestations are related to an injury on verified federalized active duty service or any is unrelated to such injury and due solely other factors, to include a traumatic injury postservice/not on federalized active duty service) and readjudicate the claim on appeal. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.