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!

 

 

[gossjl04]

Hey ArNG11 -

You're correct, it was several weeks long.  I was seen by combat medic and medic in charge multiple times, as the rash was all over my back, butt, torso, chest, and arms.  They did not know what it was, so they prescribed me benadryl and some type of anti-itch cream.  Then back home, I saw my general practioner and Dermatologist every other month and tried prescription creams, soaps, and oral anti-fungal medicines.  At one point, it looked like it was going away, but it came back.

The VA doesn't deny that I have it, or that I got it from the Army Mountain Warfare School.  Their denial is based on the fact that it is not considered an injury.  The quote of their denial is as follows:

“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, my research shows that Active Duty For Training allows for either an injury OR an illness in the line of duty.  Their denial reasoning seems like it should actually be for Inactive Duty For Training so I think that the incorrectly applied the eligibility rule.

[ArNG11]

Hey ArNG11 -

You're correct, it was several weeks long.  I was seen by combat medic and medic in charge multiple times, as the rash was all over my back, butt, torso, chest, and arms.  They did not know what it was, so they prescribed me benadryl and some type of anti-itch cream.  Then back home, I saw my general practioner and Dermatologist every other month and tried prescription creams, soaps, and oral anti-fungal medicines.  At one point, it looked like it was going away, but it came back.

The VA doesn't deny that I have it, or that I got it from the Army Mountain Warfare School.  Their denial is based on the fact that it is not considered an injury.  The quote of their denial is as follows:

“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, my research shows that Active Duty For Training allows for either an injury OR an illness in the line of duty.  Their denial reasoning seems like it should actually be for Inactive Duty For Training so I think that the incorrectly applied the eligibility rule.

I would agree.  The status part is what gets tricky.  However, what ever status it is decided to be can't change facts.  "illness or injury while on an active status"  even if it did happen as a prior to service injury did active service impact it, did service make it worse.  

Heh you mentioned scripts, do you have records of this or more importantly records regarding treatment if not get a hold of them that will be useful for continuity.

With your private MD thats evidence of a continuing problem, continuing treatment hence a doctor who is treating for what " a disease or injury"  The issue is that I don't think the VA is going to go out on a limb for you.  You are going to need a medical nexus to connect the two.

Heh it just dawned on me, I recall when going to flood areas in Louisiana they gave warnings to us of the water issues, mostly rashes and peoples immune system going haywire from it of course the diarrhea issues.  Guard took care of it, even sent me to the VA. Granted just got fiber and tums but that is still treatment.  

Anyways curious what Title were your orders under?  I have to look at my records and see what Title I was under for the Katrina mobilization vs Iraq Deployment and Iraq train up.  I'm confident Iraq was Title 10, but Katrina I don't recall.

[ArNG11]

Okay yuppers confirmed Katrina was under title 10 as well. It was governor issued but lasted more than 30 days. The same rules should apply.  Oh and the part of where they denied you the last sentence why does it not have illness on there as well.  Hmm

Your spot on your remark the rule was not applied correctly, your eligibility should be covered under those circumstances I believe.  I'll take a look see but eCFR talks about this to a degree.

[gossjl04]

Hey ArNG11 -

Yup, I have lots of medical treatment records that the VA already has.  The VA doctor at my C&P exam put in the notes that the fungal infection developed at the Army Mountain Warfare School.  I was there under title 32 USC 502 orders. It seems everyone agrees that I have the rash and that it developed there, but that i'm not elligible because it is not an injury. 

[Vync]

Goss,
It doesn't need to be an injury. It could be an injury, illness, disease, virus, etc...  Think of Agent Orange. Nobody fell down and got diagnosed with AO. They were exposed to AO which caused illnesses, diseases, cancer, etc... You were at the Army school and the rash started.

[gossjl04]

Thanks Vync -  I agree with you.  Everything I've read said that for Active Duty or Active Duty for Training, it can be an injury or an illness.  If it's Inactive Duty for Training, then it must be an injury.  If that's correct, then would this be considered a Clear and Unmistakenable Error (CUE), since they applied the eligibility rule incorrectly?