Citation Nr: 21041673 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-14 298 DATE: July 9, 2021 REMANDED Service connection for a gastrointestinal disability, including ulcerative colitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to January 1995 in the United States Marine Corps. He had additional service in the Army National Guard and Army Reserves from January 1995 to March 1998, February 2004 to July 2006, and August 2006 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In February 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. Service connection for a gastrointestinal disability, including ulcerative colitis, is remanded. As noted, the Veteran had several periods of service in the Army National Guard and Army Reserves. The record, however, does not contain service treatment records for the Veteran's final period of service from August 2006 to February 2007 or otherwise indicate a reason for their absence, and does not appear to contain records from the entirety of his period of service from February 2004 to July 2006. VA's duty to assist requires the VA Regional Office to make as many requests as necessary to obtain the Veteran's complete service treatment records until it determines that either the records do not exist or that further efforts to obtain those efforts would be futile. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The exact dates and character of the Veteran's service must also be clarified for the record, as well as the nature of his National Guard duty. 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 their 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 for 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, see 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. Id. Further, given the nature of the Veteran's claim and the contentions he has made, it must be clarified as to whether he qualifies as a "Persian Gulf veteran" pursuant to 38 C.F.R. § 3.317. His service separation document (DD Form 214) denotes his receipt of the Southwest Asia Service Medal, but it does not contain dates of verified Southwest Asia Service in the "remarks" section. While the record contains a large volume of service personnel records, including a deployment report, it remains unclear whether he served in a location contemplated by 38 C.F.R. § 3.317(e). Finally, an additional medical opinion must be obtained for the claim. Although the record contains the negative opinion of a July 2016 VA examiner, the opinion was limited to the period of service from 1991 to 1995 and the examiner determined that the onset of ulcerative colitis was in 2007. Treatment records show, however, that ulcerative colitis was documented in April 2005, with a physical profile issued in October 2005. A further opinion considering this evidence, and based on the Veteran's complete service treatment records and all periods of service, must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity to: (a.) Identify the exact dates for all periods of active duty, active duty for training, and inactive duty for training performed by the Veteran. Verify whether any of the Veteran's National Guard service was "full-time duty" ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or whether he was ordered into Federal service by the President of the United States, see 10 U.S.C. §12401. In other words, the VA Regional Office should determine whether such service was state-controlled or Federal service. (b.) Request all outstanding service treatment records. Specifically, attempt to obtain all treatment records associated with the Veteran's period of service from February 2004 to July 2006, and August 2006 to February 2007. Document all requests made and all responses received. 2. Clarify for the record whether the Veteran qualifies as a "Persian Gulf veteran" (i.e. whether he served in the Southwest Asia Theater of Operations during active service pursuant to 38 C.F.R. § 3.317(e)). 3. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of the current gastrointestinal disability, including ulcerative colitis. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and any other pertinent lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (a.) Opine on whether the Veteran's gastrointestinal disability, including ulcerative colitis, constitutes an "undiagnosed illness" or a "medically unexplained chronic multisystem illness." (b.) Opine on whether it is at least as likely as not that the current gastrointestinal disability, including ulcerative colitis, began during any period of active service or is related to an in-service injury, event, or disease. In rendering this opinion, the examiner must consider: Service treatment records dated from October 1991, May 1992, January 1994, August 1994, and September 1994 documenting gastrointestinal symptoms and treatment Treatment records from April 2005 documenting ulcerative colitis, with a physical profile issued in October 2005 (c.) IF, and only if, the examiner finds that a gastrointestinal disability, including ulcerative colitis, preexisted a period of active service, explain why. Further, state whether such disability underwent an increase in underlying pathology during service and if so, whether the increase was due to the natural progress of the disease. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.