Citation Nr: 22015281 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-36 765 DATE: March 17, 2022 ORDER Service connection for a neck disability is denied. Service connection for a left shoulder disability is denied. Service connection for a left hip disability is denied. Service connection for a left knee disability is denied. FINDING OF FACT The evidence of record fails to show that the appellant's neck, left shoulder, left hip, and left knee disabilities (claimed to have been caused by the injuries sustained in a motor vehicle accident on March 7, 2012) were incurred either on active duty or in the line of active or inactive duty for training. CONCLUSION OF LAW The criteria for establishing a "veteran" status for the purposes of establishing an entitlement to service connection for the claimed disabilities arising from the period of service on March 7, 2012, have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153; 38 C.F.R. §§ 3.1, 3.4, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant honorably served in the Utah Army National Guard and Army Reserve from 1982 to 2015, to include the confirmed periods of service on active duty from May 3, 1982 to August 25, 1982; August 3, 2001 to March 12, 2002; February 29, 2004 to November 22, 2004; January 22, 2005 to July 31, 2005; January 7, 2013 to July 4, 2013; and October 28, 2013 to September 30, 2014. In an April 2016 rating decision, the Regional Office (RO) denied his claim for service connection for neck, left shoulder, left hip, and left knee disabilities. He appealed. The hearing originally scheduled for March 2020 was postponed due to the COVID-19 restrictions. In July 2021, the appellant appeared for a rescheduled hearing, but declined to go on record at that time and requested additional time to prepare his appeal, which was granted. In October 2021, he testified at a Board hearing, a transcript of which is of record. As reflected in the hearing transcript, the appellant maintains that his neck, left shoulder, left hip, and left knee disabilities were incurred due the injuries sustained in a vehicle accident in March 2012, when a girl ran a red light at an intersection and t-boned the left side of his vehicle, as he was leaving after his VA appointment. As further reflected in his June 2016 Notice of Disagreement and an August 2016 substantive appeal (VA Form 9), the appellant is contending that he had submitted evidence from his active duty treating physician substantiating his claim that his disabilities claimed in this appeal began on active duty due to a vehicular trauma sustained in March 2012. Unfortunately, contrary to the appellant's assertion, a May 2016 letter (received in June 2016) from Dr. J.L.R., MD, is silent as to his duty status at the time of the March 2012 accident apparently having had occurred during his service in the Army Reserve, which is the crux of this appeal. Of particular note here is the appellant's statement made under oath that at the time of the accident he was assigned to 807th MCDS (Medical Command Deployment Support), Fort Douglas, Utah, which is corroborated by his military personnel file (MPF). However, his MPF further reflects that 807th MCDS is an Army Reserve unit. This finding viewed in light of pertinent laws drastically limits the Board's authority to award the benefits sought in this appeal, regardless of whether or not the appellant's current disabilities may stem from the March 2012 accident. Generally, service connection may be granted for a disability either caused by or incurred coincidental to service. 38 C.F.R. § 3.303(a). "Service connection" is a complex legal concept connoting many factors, but essentially refers to the VA compensation for the current disabilities incurred in service or otherwise caused or aggravated by it. This benefit, however, is not automatically granted for every sign, symptom, complaint, treatment, injury, disease, and/or diagnosis documented in or during service, be it noted by a military or civilian physician. Rather, establishing an entitlement to this benefit is subject to the multiple legal criteria. To qualify for service connection, the appellant first must establish a "veteran" status for VA disability compensation purposes. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To that end, while service on active duty in the regular military components generally satisfies this fundamental legal requirement, service in the Reserve and National Guard units does not automatically confer the requisite "veteran" status. See Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Of note, the term "veteran" as used here is a legal term employed for the sole purpose of determining the Veteran's eligibility for the sought benefits and does not deprive him of his right to be recognized as the Veteran for most, if not all, other purposes. For VA disability compensation purposes, a "veteran" is "a person who served in the active military, naval, or air service." See 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). "Active" service includes the periods of: (1) active duty; (2) active duty for training (ACDUTRA) during which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty; or (3) period of inactive duty for training (INACDUTRA) during which the individual was disabled or died from an injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24). Of particular note, the law makes a clear distinction between the periods of service on active duty and active or inactive duty for training purposes. "Active duty," among other things, means full-time duty in the Armed Forces, other than active duty for training. 38 C.F.R. § 3.6(c)(1). In contrast, active duty for training, among other things, means a full-time duty in the Armed Forces performed by a member of the Reserve for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Given that both "active duty" and "active duty for training" (ACDUTRA) refer to a full-time service in the Armed Forces, the chief distinction is in the purpose of service, namely, for operational or support purposes, as opposed to training. See VAOPGCPREC 25-90. As such, service in the Reserve may temporarily be defined as active duty rather than active duty for training, so long as the facts of the case show that such a service member during the period at issue served full-time and performed operational or support duty rather than training as specified in 32 U.S.C. §§ 101(22), 316, 502, 503, 504, 505, 1652(a)(3), or 10 U.S.C. § 511(d). See id. In contrast to disabilities incurred on active duty, which may be service connected even if an injury resulting in the disability was incurred coincidental to service, service connection incurred during ACDUTRA or INACDUTRA may be granted only for a disability resulting for an injury that had been incurred or aggravated in the line of duty. See 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). This means that in cases, where the disabilities arise from the period of service in the Reserve, it is not enough merely to show that an injury resulting in the current disability had been sustained during the period of contractual obligation of service. Instead, the evidence of record must show that such an injury had been sustained in the line of duty. The phrase "in the line of duty" specifically excludes any periods during the off-duty hours, to include any time between the monthly weekend drills or annual two-week drills in the Reserve or National Guard, with the only exception allowed for the periods of authorized traveling directly to and from an assigned unit for such a duty. See 38 U.S.C. § 101(21)(E); 38 C.F.R. § 3.6(e)(2). To that end, considerations include whether an individual was actually authorized or required to perform duty. In making that determination, among the relevant factors are the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; and the manner in which the travel was performed. Of note, while the Board considers these factors, it is the appellant who is ultimately responsible for providing all information necessary to substantiate his claim. In establishing the requisite "veteran" status, the law unequivocally places the burden of proof on the appellant. See Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010); Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). As such, certain legal doctrines particularly favorable to the veterans, such as presumption of aggravation placing the burden of proof on VA to affirmatively disprove the claim, do not apply to the periods of ACDUTRA or INACDUTRA. See 38 C.F.R. § 3.304, 3.306. Of further note, notwithstanding whether the appellant already has an established service connection, a "veteran" status is required on every new claim for each period of credible military service based on which the claim is predicated. See Cropper v. Brown, 6 Vet. App. 450, 452 (1994). The exception to this general rule arises only in cases where the claimed disability is causally related to an existing service-connected disability, or the claimed disability has arisen from the same period of service for which a "veteran" status already has been established, or otherwise the claimed disability is shown having had been incurred during the period(s) of service on active duty, that is, a full-time operational or support duty, as opposed to training duty. In sum, the foregoing law, as applicable to the circumstances of this case, essentially means that, before the Board may consider the Veteran's claim any further, he first must establish a "veteran" status for VA disability compensation purposes by showing that the March 2012 accident had occurred in the line of duty or on active duty. To show that the accident occurred in the line of duty, regardless of whether he served part- or full-time, the appellant must demonstrate that, at the time of the accident, he was traveling directly to his unit actually authorizing or requiring him to perform his reserve duty, which has not been shown. To show that the accident occurred on active duty, the appellant must demonstrate that, at the time of the accident, he served full-time and for other than training purposes, both of which are fundamental legal requirement for establishing a "veteran" status on the basis of service on active duty. In this regard, the evidence of record did suggest that his may be the case here but ultimately also fails. As detailed in a police report, the accident had occurred at 8:47 AM on March 7, 2012. At the time of the accident, the appellant was assigned to 807th MCDS, an Army Reserve unit. This fact is not in dispute. By implication, he clearly was not serving on active duty in the regular Army. As such, a determination as to whether he was performing his reserve duty during that period on a part- or full-time basis would aid a determination whether he was on ACDUTRA or INACDUTRA, which is inconsequential here. In either scenario, the appellant must show that at 8:47 AM on March 7, 2012, he was in the line of duty, meaning that he was actually performing his military duty as authorized or required by his unit, or was directly traveling from or to his unit to perform such duty. Given his own statement under oath that the accident occurred as he was leaving after his VA appointment, he clearly was not performing his reserve duty or traveling directly from his unit. The only remaining issue here is whether he was traveling directly to his unit actually authorizing or requiring him to perform his duty on that particular day and in close proximity to the time of the accident, which has not been shown, suggested, or even alleged in this case. To this end, the appellant maintains that at the time of the accident he was serving on active duty. This tasks the Board with a determination whether at the time of the accident the Veteran's duty in the Reserve was full-time other than training duty, that is, operational or support duty. To that end, the appellant testified that he had served on active duty for significant periods of time between 2011 and 2015. The Board has no reason to doubt the credibility of his statements. This much is corroborated by his certificate of release from active duty (DD Form 214) showing service on active duty from January 7 to July 4, 2013, and October 28, 2013 to September 30, 2014. Moreover, the evidence of record further suggests that he may have had served full-time for at least a part of 2012. For example, in a letter dated June 29, 2015, VA notified the Veteran that the information from the Defense Manpower Data Center (DMDC) shows that he received 354 days of drill pay during Fiscal Year 2012. With that, the appellant's representative pointed out that there are only 365 days in a year and attempted to capitalize on that fact. Despite the fact that 2012 was a leap year with 366 days, the representative indicated that this evidence shows that the Veteran had served most of 2012 but for the brief period of less than 2 weeks. However, as detailed in the VA letter, "drill pay" is equal to one full day's duty pay for each 4-hour training assembly attended. This means that, for pay purposes, reservist and guardsman are credited two drill pay days for every calendar day served. As such, 354 days of drill pay signify compensation for 177 calendar days actually served. This finding is consistent with the Veteran's DD Form 214 reflecting his service on active duty for a period from January 7, 2013 to July 4, 2013, amounting to actual 5 months and 28 days served as indicated therein, for which the Veteran received pay for 355 training days (VA Form 21-8951). As such, given that every actual day served is counted as two drill or training days, showing that the Veteran served 177 out of 366 calendar days or 5 months and 27 days in 2012 does not establish that he was performing his Reserve duty full-time on any specific date, to include March 7, 2012. Moreover, the June 2015 VA letter further reflects the DMDC has identified the appellant as having been a reservist or guardsman during 2012. Further, Notice of Waiver of VA compensation (VA Form 21-8951) also unequivocally states that the appellant received training pay for 354 days during FY 2012 and the DMDC has identified him based on his social security number as having been a reservist or guardsman during that period. This evidence coupled with a finding that the appellant was assigned to 807th MCDS quite persuasively shows that he was a member of the Reserve unit, while receiving drill/training pay, which implies that he was performing training duty. Further given the initial physical profile associated with back strain due to the accident is dated April 27, 2012, which is more than six weeks after the accident, strongly suggests that the appellant was not immediately due to report to his unit. Upon reviewing over 500 pages of MPF and STRs, the record is devoid of a single document suggesting the appellant's presence at his unit at any time between March 7 and April 26, 2012. Moreover, the April 2012 initial profile evaluation states rather unequivocally that this is "not service connect injury" and "no line of duty (LOD) has been completed." Furthermore, the profile screening report reflects the appellant's own affirmative denial that the reported limitations due to his back sprain are due a duty-related condition. The Board does not doubt the sincerity of his current belief to the contrary, as more often than not beliefs are altered over time, circumstances do change, and memories do fade. This is why his certified statements made less than two months after the accident for the purpose of physical fitness screening by a medical professional are more probative than his statements made years later for the purpose of procuring VA benefits. It is noted that the Veteran's DD-214 covering the period from January to July 2005 noted total prior active service as one year and ten months. The next DD-214 covering the period from January to July 2013 noted total prior active service as two years and two months. This would suggest that there was not additional active service between 2005 and 2013. Ultimately, the evidence of record viewed as a whole shows that, at the time of the March 2012 accident, the appellant was a member of the Reserve and had served for 177 calendar days during FY 2012. The Board acknowledges his statement at the hearing that the 807th MCDS was primarily tasked with support duty, as implied in its title Deployment Support. He further explained that, as the property officer for the unit, his primary duties entailed support duty rather than training. This evidence viewed in light of his annual performance evaluation reports, to include for the review period for FY 2012, does suggest that he may have had performed his duty other than for training purposes. However, none of this evidence is sufficient to show that the Veteran was performing full-time duty or otherwise was traveling directly to his unit authorizing or requiring him to perform reserve duty. As such, a "veteran" status for the purposes of this appeal may not be conferred. In reaching this conclusion, the Board has considered that following the March 2012 accident, the appellant served on active duty for the period from January to July 2013 and October 2013 to September 2014, during which any non-service-connected disabilities pre-exiting that period of service may have been aggravated by service. However, particularly in light of the January 2013 pre-deployment health assessment, when the Veteran entered on active duty, the only pre-existing conditions noted at that time were his back disability and hearing loss, both of which already are service connected. Apart from these conditions, the Veteran affirmatively denied any other health problems or concerns and certified that his health is very good. It is conceivable that during those periods of service on active duty, the generally arduous nature of military duties has put some wear and tear on the Veteran's joints, to include his neck, shoulders, hips, and knees. However, the Board may neither invent the facts nor on the appellant's behalf fill the gaps in the information necessary to substantiate his claim. To that end, the appellant may at any time submit a supplemental claim supported by new and relevant evidence, to include buddy statements, police reports, witness statements, newspaper articles, meal tickets from a mess hall, picture(s) in uniform on March 7, 2012, or explanatory letters from his personnel branch or commanding officer, and any other evidence he deems relevant to his claim, from which it may be reasonably inferred that the appellant following his VA appointment was traveling on orders directly to his unit. This also may be shown by military orders placing him on active duty. The appellant also may seek a correction of his military records. In the alternative, he may show that at the time of the accident he served full time operational or support duty. In these regards, he is encouraged to consult with his representative. If the RO determines that the supporting evidence is new and relevant and results in the grant of the sought benefits, the effective date shall be preserved as of the date of initial claim. Meanwhile, absent the evidence of record showing that the accident at 8:47 AM on March 7, 2012, had occurred in the line of duty or on active duty, a "veteran" status is not conferred. The Board reiterates that a "veteran" as used here is a legal term which is not meant to belittle the appellant. Without any reservation, the Board recognizes the appellant's rather impressive military career progressing from private (PVT) to Chief Warrant Officer (CW-4). Among his numerous awards and decorations is the Bronze Star Medal which on its own deserves the utmost respect. His service of over 33 years, be it while caring for his soldiers as detailed in his stellar annual performance reviews, deploying abroad in support of combat operations in the Southwest Asia, partaking in domestic humanitarian efforts in the aftermath of Hurricane Katrina, or his more recent tour of duty in Afghanistan at which point the appellant was already eligible to retire after 30 years of selfless service, are indeed remarkable. Unfortunately, the Board has no authority to grant the VA monetary benefits on an equitable basis and ultimately is bound by the current laws, as passed by Congress, implemented by VA, and controlled by precedent opinions of the courts and Office of General Counsel. In accordance with the law, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.