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]

I agree, the title of the orders is important.  Title 10 is mostly treated as Active Duty.  I have come across a few exceptions in my research.  Title 32 is a little more difficult, but from my research, I'm 99% sure that I am right, the VA is wrong, and that I'm entitled to benefits for this fungal infection.  I finally talked to my DAV rep, who basically told me that he would file an appeal for me, but said that he didn't think that I had a chance.  I asked him if he read everything that I sent him and if he had, how could he think that I didn't have a chance.  Then I brought up all of the points listed and he now thinks that I have a chance.

 

Anyways, I learned alot so if anyone has any specific questions on this topic, please ask me.  Below is my research on my situation.  if you have a minute, (or 10), please read through the below evidence, regulations, and logic and see if you can poke any holes in it.  Thanks!

 

 

My claim for service connection for Tinea Versicolor was recently denied because “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.”

 

The regulation referenced is incorrect.  The VA says that since I was on Active Duty For Training (ACDUTRA), I need to have been disabled from an injury in the line of duty and that a rash is not due to injury.  However, that specific regulation (injury only) applies for inactive duty for training (IDT).  The regulation for ACDUTRA is as follows below:

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

 

Thus, this means that the rash would be covered under this regulation if it was incurred in the line of duty, which it was. 

If the VA tries to say that a rash (Tinea Versicolor) is not covered, the appeals case referenced below is for a national guardsman who was previously denied his claim of dermatophytosis (claimed as tinea pedis) which is also a fungal skin infection that he incurred while on ACDUTRA.

                        Citation Nr: 1532700

Decision Date: 07/31/15 Archive Date: 08/05/15

DOCKET NO. 13-36 382

In this appeal, the VA states that:

“When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id.”

Thus, it looks like the VA accepts fungal skin infections as diseases covered for ACDUTRA.

 

Next, we need to establish that I was on ACDUTRA orders.

I’ve attached my orders for Army Mountain Warfare School, which show that I was on Full Time National Guard Duty for Active Duty For Training under 32 U.S.C. 502.

 

From M21-1MR, Part III, Subpart ii, Chapter 6, Section 3 “Duty Status and Eligibility of Personnel in the National Guard Service”, 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. Qualifying Service Under 32 U.S.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. 

 

National Guard service does not meet the definition of active military, naval, or air service under 38 U.S.C. § 101(22) unless the member or former member is disabled during service and, therefore, subject to an exception outlined in 38 U.S.C. § 101(24) or 38 U.S.C. § 106(b)(3).

 

 

Thus, since the VA doctor at the C&P exam said that the rash was currently present, was covering 40% of my body, and started at the Army Mountain Warfare School, AND I was on Full Time National Guard Duty for Active Duty For Training under 32 USC 502 AND I was disabled while on Active Duty For Training, then I think it’s pretty safe to say that I am eligible compensation under all of the references and regulations listed above.

[ArNG11]

I agree, the title of the orders is important.  Title 10 is mostly treated as Active Duty.  I have come across a few exceptions in my research.  Title 32 is a little more difficult, but from my research, I'm 99% sure that I am right, the VA is wrong, and that I'm entitled to benefits for this fungal infection.  I finally talked to my DAV rep, who basically told me that he would file an appeal for me, but said that he didn't think that I had a chance.  I asked him if he read everything that I sent him and if he had, how could he think that I didn't have a chance.  Then I brought up all of the points listed and he now thinks that I have a chance.

 

Anyways, I learned alot so if anyone has any specific questions on this topic, please ask me.  Below is my research on my situation.  if you have a minute, (or 10), please read through the below evidence, regulations, and logic and see if you can poke any holes in it.  Thanks!

 

 

 

My claim for service connection for Tinea Versicolor was recently denied because “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.”

 

The regulation referenced is incorrect.  The VA says that since I was on Active Duty For Training (ACDUTRA), I need to have been disabled from an injury in the line of duty and that a rash is not due to injury.  However, that specific regulation (injury only) applies for inactive duty for training (IDT).  The regulation for ACDUTRA is as follows below:

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

 

Thus, this means that the rash would be covered under this regulation if it was incurred in the line of duty, which it was. 

If the VA tries to say that a rash (Tinea Versicolor) is not covered, the appeals case referenced below is for a national guardsman who was previously denied his claim of dermatophytosis (claimed as tinea pedis) which is also a fungal skin infection that he incurred while on ACDUTRA.

                        Citation Nr: 1532700

Decision Date: 07/31/15 Archive Date: 08/05/15

DOCKET NO. 13-36 382

In this appeal, the VA states that:

“When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id.”

Thus, it looks like the VA accepts fungal skin infections as diseases covered for ACDUTRA.

 

Next, we need to establish that I was on ACDUTRA orders.

I’ve attached my orders for Army Mountain Warfare School, which show that I was on Full Time National Guard Duty for Active Duty For Training under 32 U.S.C. 502.

 

From M21-1MR, Part III, Subpart ii, Chapter 6, Section 3 “Duty Status and Eligibility of Personnel in the National Guard Service”, 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. Qualifying Service Under 32 U.S.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. 

 

National Guard service does not meet the definition of active military, naval, or air service under 38 U.S.C. § 101(22) unless the member or former member is disabled during service and, therefore, subject to an exception outlined in 38 U.S.C. § 101(24) or 38 U.S.C. § 106(b)(3).

 

 

Thus, since the VA doctor at the C&P exam said that the rash was currently present, was covering 40% of my body, and started at the Army Mountain Warfare School, AND I was on Full Time National Guard Duty for Active Duty For Training under 32 USC 502 AND I was disabled while on Active Duty For Training, then I think it’s pretty safe to say that I am eligible compensation under all of the references and regulations listed above.

 

Did he use medical rationale to justify the statement? Do you have contemporary records indicating treatment? Did he review your SMR's and or private medical treatment records and indicate as such?  Did he make the necessary medical nexus?

I'm not trying to discourage you, just that you need to have that criteria met.  You have done your homework though.  Those are some of the regs references I found and was informed of in my claims.  There are plenty of CAVC cases that deal with this specific predicament  on duty status.

One thing I will warn you of, even if you were on state orders or had a pre-existing condition the matter will fall under the premise if active military status made your condition or illness worse, along with the nexus and treatment requirements.

Great references by the way.  Good Luck.  Fight till your last breath.

 

[gossjl04]

Thanks Mr. A.  Yes, he did use medical rationale and he did review all of my SRMs and treatment records. They all point to having started at Mountain Warfare School.  He said they started there, but the VA said that since it was an illness, it does not qualify.  This is a totally new condition that I never had before I got it there.

Would you be able to provide any links to the CAVC that you mentioned you had found?  I'd like to see if there is any other information that could be useful.

 

Thanks

[ArNG11]

Thanks Mr. A.  Yes, he did use medical rationale and he did review all of my SRMs and treatment records. They all point to having started at Mountain Warfare School.  He said they started there, but the VA said that since it was an illness, it does not qualify.  This is a totally new condition that I never had before I got it there.

Would you be able to provide any links to the CAVC that you mentioned you had found?  I'd like to see if there is any other information that could be useful.

 

Thanks

Sweetness.  That should give you what you need to fight the denial.  With the CAVC cases I will try to find my references.  The search criteria bar can narrow it down quite a bit. http://search.uscourts.cavc.gov

This is where I get my references along with a copy of a 2013 VBM that I purchased.  It does take some TLC research but I believe it will get you started.

With your "totally new condition"  presumption of soundness will apply.  If your physical entrance exams don't make note of it, then you were 100% good to go, lock and loaded, machine.  They can't just say it was pre-existing although they will try.  If it was pre-existing then the task will be to prove that service made the condition, illness, injury worse. A doctor, preferably a specialist, will need to use medical rationale and evidence to say so.  

[ArNG11]

This site and AskNod site has a plethora of information that is useful for the information you seek.   It's no cake walk but very possible to be successful.  JMO