Citation Nr: 21021092 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 200102-52426 DATE: April 9, 2021 ORDER Entitlement to service connection for amyotrophic lateral sclerosis (ALS) is granted. FINDINGS OF FACT 1. The appellant has established “veteran” status, as service connection is in effect for bilateral hearing loss and tinnitus due to his period of active duty for training (ACDUTRA). 2. The Veteran has a diagnosis of ALS. CONCLUSION OF LAW The criteria for service connection for ALS are met. 38 U.S.C. §§ 101 (24), 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.318. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty for training (ACDUTRA) from September 1959 to March 1960. The Board of Veterans’ Appeals (Board) issued a decision pursuant to the Appeals Modernization Act (AMA), in September 2020, in which the Board denied the claim of service connection for ALS (but granted service connection for bilateral hearing loss and tinnitus). Subsequently, in November 2020, the Veteran’s representative filed a motion for reconsideration of the Board’s September 2020 decision to the extent that the Board decision denied the claim for service connection for ALS. See 38 C.F.R. §§ 20.1000, 20.1001. The motion for reconsideration was granted in a January 2021 order of reconsideration, and the case was assigned to this three-member reconsideration panel. See 38 C.F.R. § 19.11. 1. Entitlement to service connection for ALS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as provided in paragraph (b) of 38 C.F.R. § 3.318, the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease. 38 C.F.R. § 3.318(a). Service connection will not be established if the claimant did not have active, continuous service of 90 days or more, there is affirmative evidence that ALS was not incurred during or aggravated by active service, or there is affirmative evidence that ALS is due to the veteran’s own willful misconduct. 38 C.F.R. § 3.318(b). The presumption of service connection for ALS is limited to "those who qualify as a 'veteran' under 38 U.S.C. § 101(2)." Bowers v. Shinseki, 26 Vet. App. 201 (2013). The term “veteran” is defined in 38 U.S.C. § 101(2) as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” Periods of ACDUTRA do not satisfy that requirement unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). In this case, private treatment notes dated in August 2019 show a diagnosis of ALS. Therefore, the appellant has a current disability and satisfies the first element of service connection. The issue upon which this matter turns is whether the appellant had “active military, naval, or air service” under the law. For Department of Veterans Affairs (VA) purposes, a veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). “Active military, naval, or air service” includes active duty; any period of 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 training (INACDUTRA) in which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The appellant served on ACDUTRA as a member of the Army National Guard from September 1959 to March 1960. To establish status as a “veteran” based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). In other words, an individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status to be entitled to disability compensation benefits. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (affirming the Board’s determination that claimant did not have veteran status where it was not shown that he was disabled from any injury or disease during ACDUTRA), aff’d, 748 F.3d 1351 (Fed. Cir. 2014). The Board’s September 2020 decision granted service connection for bilateral hearing loss and tinnitus, as arising during the appellant’s period of ACDUTRA. Thus, the appellant has established a service-connected disability during his ACDUTRA service and is entitled to “veteran” status for any disability arising from such service. Additionally, the appellant’s ACDUTRA service was for a continuous period of more than 90 days. There is also no affirmative evidence that ALS was not incurred during, or aggravated by, active service or due to the appellant’s own willful misconduct. Therefore, as the appellant has achieved “veteran” status through the award of service connection for bilateral hearing loss and tinnitus and has a diagnosis of ALS, he is entitled to service connection for ALS pursuant to 38 C.F.R. § 3.318. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Kelli A. Kordich Veterans Law Judge Board of Veterans’ Appeals B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, Counsel