Citation Nr: 21039708 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-49 089 DATE: July 1, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran was not serving on active duty, for purposes of determining basic eligibility for entitlement to VA disability benefits, at the time he incurred his right knee injury. CONCLUSION OF LAW The criteria to establish basic eligibility for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 101, 1131; 38 C.F.R. §§ 3.303, 3.318(a); Bowers v. Shinseki, 26 Vet. App. 201; Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1979 to March 1983, from February 1992 to June 1992 and from October 2006 to November 2006, with additional service in the Air National Guard of New Jersey. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The matter was previously before the Board in January 2020, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The claim has now been returned to the Board for further appellate consideration. A review of the record shows substantial compliance with the Board's January 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). Entitlement to service connection for a right knee disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the incurrence or aggravation of a disease or injury while on active duty service; and (3) a causal relationship, i.e., a nexus, between the present disability and the disease or injury incurred in or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Active service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). When, for instance, a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). Additionally, 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 establish entitlement to basic eligibility for veterans' 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 or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 10 U.S.C. §12401. Title 10, Section 12401 of the United States Code provides that "members of the Army National Guard of the United States and the Air National Guard of the United States are not in active Federal service except when ordered thereto under law." Thus, when ordered into active federal service, a member of the National Guard has active duty service for VA compensation purposes. Here, the Veteran reports that he sustained an injury to his right knee on December 2, 1999, while manually transporting an 800-pound paper shredder in his capacity as a fulltime employee at McGuire Air Force Base. See, e.g., Notice of Disagreement dated July 25, 2014. He contends that, at the time of the injury, he was a full-time member in the Air National Guard; and as such, is entitled to service connection for the disability he incurred. Thus, the issue in this matter is whether, for the purposes of considering entitlement to service connection for a disability, the Veteran's duty status at the time of the injury was, or can be considered, active duty. Although the Board is sympathetic to the Veteran's injury and the complications it has imposed on his daily life, the Board finds that the preponderance of the evidence weighs against the claim. The record indicates, in relevant part, that the Veteran served in the Air National Guard of New Jersey from January 24, 1992 to July 8, 2007, covering a net service period of 15 years, five months, and five days. See NGB Form 22. Air National Guard personnel records contained in the Veteran's claims file further chronicle specific periods by duty codes; and the record shows that the Veteran had periods of paid inactive duty in November 1999 and February 2000. See document labelled "Point Credit Summary." Indeed, in the year covered by such records, the Veteran was noted to have only served two days on active duty service, specifically, March 18, 2000 and April 8, 2000. See id., covering period from May 15, 1999 to May 14, 2000. However, no mention is made of any such service, either active duty or inactive duty, for the month of December 1999, when the Veteran sustained his knee injury. As noted above, to be entitled to basic eligibility for veterans' 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 or must have performed full-time duty under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 10 U.S.C. § 12401. The Board affords significant probative weight to the official documentation reflecting that the Veteran was not in active service at the time he sustained the injury to his right knee. Thus, the Veteran's service for December 1999, to include December 2nd, 1999, is not considered active military, naval, or air service as defined by statute because it was not during a time in which his unit of the Air National Guardsmen was ordered into active federal service or during another applicable circumstance under 10 U.S.C. § 12401. Therefore, the preponderance of the evidence indicates that the Veteran was not on active duty at the time he sustained the injury to his right knee; and as such, basic eligibility for entitlement to service connection for his claimed disability cannot be established. Accordingly, entitlement to service connection for a right knee disorder must be denied. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits [...]"); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA [...] the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.