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]

Hey Goss,
I would hope so. The way I read what I posted earlier sounds like the rater read one part and totally ignored the other part.

I'm not a CUE expert, but am trying to wrap my head around it because I am considering filing a CUE soon.
 

Also, I am helping a friend's husband who recently retired from the Air National Guard. He told me they denied him for basically the same reasons you mentioned. I am waiting to look at his records to learn more.

 

[gossjl04]

Yeah, that's what I'm thinking as well.  I've been trying to get ahold of my DAV rep for 2 weeks to see what he thinks, but have been unsuccessful so far.  Keep me posted on how it goes with your friend's claim, if you wouldn't mind.

[Vync]

You bet!

[gossjl04]

Merry Christmas Everyone!  Has anybody figured anything else out about this topic?  I did some more digging and found the following from the VA document

      'M21-1MR, Part III, Subpart ii, Chapter 6: Determining Veteran Status and Eligibility for Benefits'

From paragraph (a)

Therefore, full-time operational/support service performed by Guard personnel in ACDUTRA status does not qualify as “active duty” for purposes of establishing eligibility for VA benefits unless the member or former member has a service-connected (SC) disease or injury that was incurred or aggravated in the line of duty during the ACDUTRA period.

And from paragraph (c)

Full-time National Guard service is considered active duty for training under 38 U.S.C. § 101(22)(C) if performed under 32 U.S.C. § 316, or 32 U.S.C. § 502, 503, 504, or 505.  This is true regardless of whether the member is

·   performing operational duty, or

·   undergoing training. 

My takeway from this is that since I went to the Army Mountain Warfare School under title 32 U.S.C. 502, that period of service is considered to be active duty for training (ACDUTRA).  Next, from paragraph (a), it states that this period of active duty for training does not qualify as “active duty” for purposes of establishing eligibility for VA benefits UNLESS the member has a service-connected disease or injury that was incurred in the line of duty during the period of Active Duty For Training (ACDUTRA).  Since my tinea versicolor (fungal skin infection) occurred while on ACDUTRA, I would think that I am eligible for VA benefits for this disease.

[Chuck75]

So would I, but, I'll also bet that the VA fights tooth and nail! At least you seem to have an other SC'd disability that amounts to a foot in the door.

 

[gossjl04]

Thanks Chuck.  Yeah, it's very frustrating.  It was denied the first time a month after I submitted it.  Then, I had a reconsideration pending for it and my shoulders and a year later, it was looking promising and I even went to the C&P exam for the rash, then it was denied. But yeah, like you said, I have my foot in the door with my SC'ed two bad shoulders.  I've submitted all of this to my rep at the DAV and am just waiting to see what he thinks.  Happy Holidays!