Question about 'Active Duty for Training' claim

[gossjl04]

Good Morning Everyone.

I'm a SSG with the Army National Guard.  I'm currently 40% SC for 2 bad shoulders.  I went to Vermont in June a few years ago for 15 days for the Summer Mountain Warfare School under authority of 32 USC 502, which should be classified as 'Active Duty For Training' (ADT).  I developed a rash (Tinea Versicolor, which is a fungal infection of the skin) after the first week that I was there.  It covers probably 50% of my body, is very itchy, and doesn't look very appealing.  I've had many, many treatments which haven't cure it yet.  Anyways, my claim was denied because (statement from VA)

“VA Regulations document that Active Duty For Training does not qualify as active duty for VA benefits unless a person disabled or dies from an injury incurred or aggravated in the line of duty or has a cardiac arrest or stroke.  As the rash is not due to an injury in the line of duty, it is not subject to service connection.”

However, according my research,

(from M21-1MR, Part III, Subpart ii, Chapter 6)

“Active service” includes

·   active duty, or

 

·   any period of active duty for training during which a person is disabled or dies from

-  a disease or injury incurred or aggravated in the line of duty, or

-  an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to, or returning directly from, a period of active duty for training, or

 

·   any period of inactive duty training during which a person is disabled or dies from an

-  injury incurred or aggravated in the line of duty, or

-  acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training or while proceeding directly to, or returning directly from, such training.

It seems to me that they applied the rule incorrectly in my case, since it was Active Duty For Training, which includes a disease incurred in the line of duty, not just an injury. 

Does anybody have any experience or expertise regarding a claim for a disease incurred on ADT?  Also, is annual training with the national guard considered ADT for IDT?  Thanks!

 

 

[Vync]

I did not know much about National Guard regulations, but last week I began helping a friend's husband who retired from the Air National Guard and encountered practically the exact same type of denial from the VA. Someone with more experience will likely come along and provide confirmation, but I hope this helps.

 

I believe what you quoted is correct and I found the actual regulation which covers "duty periods". It looks like, in my opinion, the VA erred in the decision because they are misreading it. Additionally, the word "NOT" only appears twice and I highlighted those in blue. The words "other than" are present, but serve to separate, not deny, types of service as described below:

Part (a) covers both active and inactive duty for training. There appear to be different regulations for regular full-time active duty vs. active duty for training (guard/reserves).

Regulations for members considered "full-time active duty" are exclusively under (b). I believe the rater misunderstood the fact that this section is solely for regular full-time active duty members as explained in (b)(1). They probably read as far as "(b)(1) Full-time duty in the Armed Forces, other than active duty for training" and instantly assumed "other" excluded you because you were active duty for training.

Regulations for members considered "active duty for training" are exclusively under (c). You should be covered by this. Even travel to and from your duty/training location is included.

 

§3.6 Duty periods

(a) Active military, naval, and air service. This includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during 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 which occurred during such training.

(Authority: 38 U.S.C. 101(24))

(b) Active duty. This means:

(1) Full-time duty in the Armed Forces, other than active duty for training;

(2) Full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service:

(i) On or after July 29, 1945, or

(ii) Before that date under circumstances affording entitlement to full military benefits, or

(iii) At any time, for the purposes of dependency and indemnity compensation.

(3) Full-time duty as a commissioned officer of the Coast and Geodetic Survey or of its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration:

(i) On or after July 29, 1945, or

(ii) Before that date:

(a) While on transfer to one of the Armed Forces, or

(b) While, in time of war or national emergency declared by the President, assigned to duty on a project for one of the Armed Forces in an area determined by the Secretary of Defense to be of immediate military hazard, or

(c) In the Philippine Islands on December 7, 1941, and continuously in such islands thereafter, or

(iii) At any time, for the purposes of dependency and indemnity compensation.

(4) Service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy;

(5) Attendance at the preparatory schools of the United States Air Force Academy, the United States Military Academy, or the United States Naval Academy for enlisted active-duty members who are reassigned to a preparatory school without a release from active duty, and for other individuals who have a commitment to active duty in the Armed Forces that would be binding upon disenrollment from the preparatory school;

(6) Authorized travel to or from such duty or service; and

(7) A person discharged or released from a period of active duty, shall be deemed to have continued on active duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to have been required for him or her to proceed to his or her home by the most direct route, and, in all instances, until midnight of the date of such discharge or release.

(Authority: 38 U.S.C. 106(c))

(c) Active duty for training. (1) Full-time duty in the Armed Forces performed by Reserves for training purposes;

(2) Full-time duty for training purposes performed as a commissioned officer of the Reserve Corps of the Public Health Service:

(i) On or after July 29, 1945, or

(ii) Before that date under circumstances affording entitlement to full military benefits, or

(iii) At any time, for the purposes of dependency and indemnity compensation:

(3) Full-time duty performed by members of the National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law or full-time duty by such members while participating in the reenactment of the Battle of First Manassas in July 1961;

(4) Duty performed by a member of a Senior Reserve Officers' Training Corps program when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 U.S.C.

(i) The requirements of this paragraph are effective—

(A) On or after October 1, 1982, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated after September 30, 1982, and

(B) October 1, 1983, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982.

(ii) Effective on or after October 1, 1988, such duty must be prerequisite to the member being commissioned and must be for a period of at least four continuous weeks.

(Authority: 38 U.S.C. 101(22)(D) as amended by Pub. L. 100-456)

(5) Attendance at the preparatory schools of the United States Air Force Academy, the United States Military Academy, or the United States Naval Academy by an individual who enters the preparatory school directly from the Reserves, National Guard or civilian life, unless the individual has a commitment to service on active duty which would be binding upon disenrollment from the preparatory school.

(6) Authorized travel to or from such duty.

(Authority: 38 U.S.C. 101(22))

The term does not include duty performed as a temporary member of the Coast Guard Reserve.

(d) Inactive duty training. This means: (1) Duty (other than full-time duty) prescribed for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by the Secretary concerned under 37 U.S.C. 206 or any other provision of law;

(2) Special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned; and

(3) Training (other than active duty for training) by a member of, or applicant for membership (as defined in 5 U.S.C. 8140(g)) in, the Senior Reserve Officers' Training Corps prescribed under chapter 103 of title 10 U.S.C.

(4) Duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. The term inactive duty training does not include:

(i) Work or study performed in connection with correspondence courses,

(ii) Attendance at an educational institution in an inactive status, or

(iii) Duty performed as a temporary member of the Coast Guard Reserve.

(Authority: 38 U.S.C. 101(23))

(e) Travel status—training duty (disability or death from injury or covered disease). Any individual:

(1) Who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and

(2) Who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such active duty for training or inactive duty training shall be deemed to have been on active duty for training or inactive duty training, as the case may be. The Department of Veterans Affairs will determine whether such individual was so authorized or required to perform such duty, and whether the individual was disabled or died from an injury or covered disease so incurred. In making such determinations, there shall be taken into consideration 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; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant.

(3) For purposes of this section, the term covered disease means any of the following:

(i) An acute myocardial infarction.

(ii) A cardiac arrest.

(iii) A cerebrovascular accident.

(Authority: 38 U.S.C. 106(d))

[26 FR 1564, Feb. 24, 1961, as amended at 26 FR 6767, July 28, 1961; 27 FR 4023, Apr. 27, 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20, 1971; 41 FR 26881, June 29, 1976; 49 FR 47003, Nov. 30, 1984; 54 FR 51200, Dec. 13, 1989; 55 FR 23931, June 13, 1990; 60 FR 57179, Nov. 14, 1995; 61 FR 11731, Mar. 22, 1996; 66 FR 48560, Sept. 21, 2001; 67 FR 49585, July 31, 2002]

 

[gossjl04]

Great!  Thanks Vync.  This is a great start!  I hope we hear from someone who has successfully dealt with this first hand.

[Vync]

Glad to help. I just hope that my interpretation of the rules were correct. It doesn't make any sense for a rater to deny because you were "active duty for training" when there is a separate section of regulations specifically for it.

[Andyman73]

Vync,

If you keep in mind that the raters deny just because it's Taco Tuesday, or because it is NOT Taco Tuesady...then it all begins to fall into place.

gossjl04,

Don't mean to make light of your situation, but having been denied for reasons as realistic as the Taco Tuesday reference, like so many others here, it's  about the only thing we really can do, to make any sense of their nonsense!

Semper Fi,

Andyman

[Vync]

Goss,
I agree with Andy. Many of us here can definitively confirm VA employees often appear less interested in doing their jobs correctly the first time. I thought I saw everything when a C&P examiner complained to me about too many questions in my BVA remand that he could not finish eating his submarine sandwich in time, so he proceeded to take a few bites at a time periodically during my exam. Things like this do not happen to every veteran, but careless mistakes, poor decisions, or sheer laziness by some employees result in VA decisions like this.

[Andyman73]

Or they ask you why are you even here, or why now, why not before? And say things like "I don't see any service connecting records in the STR.  Even tho it was SC by a VARO 17 years earlier!!!!  One guy in particular is a Navy Vet, but must not have any issues, and while he comes across as friendly, once the exam begins...out comes the non-exam related questions.  And then when you read his notes on your exam...snide comments and such.  I complained about him.

Andyman