Smith: Is Training Active Duty
The decision in Valerie Y. Smith v. Eric K. Shinkseki, Opinion Number 08-1667, decided August 17, 2010, involved the presumptions of sound condition, service connection and aggravation.
The veteran was seeking service connection for meningioma and secondary service connection for hearing loss and gum infections. The veteran had joined the Army National Guard in December 1981 and while receiving her initial training from February to July 1982 was on active duty. Her active duty service extended for 180 days which qualified the veteran as a veteran for the purposes of VA benefits. She continued in the National Guard until 2003 and had active duty training in June and July 1999, August and September 2000 and June 2002.
In September 1999, the veteran complained to a private physician of headaches which turned out to be meningioma (a tumor on the membranes surrounding the spinal cord and brain). A C&P examination noted a history of headaches stretching back to 1987 and stated a belief the headaches were an early symptom of the tumor. The Regional Office and Board denied a service connection saying there was no competent medical evidence supporting the contention that the meningioma was related to her active service. The Board noted no medical opinion stated the symptoms began during a period of active duty for training.
The Court identified the essential question as whether a veteran who is a veteran by virtue of a period of active duty service but whose claim is based on a later period of active duty for training, is entitled to the presumptions of sound condition, service connection and aggravation generally afforded to veterans whose claims are based on periods of active duty.
In order to reach a decision, the Court parsed the language of 38 U.S.C. section 1111, which states in part,
every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.
The Court notes the statute provides that the presumptions of soundness applies when a veteran has been “examined, accepted, and enrolled for service”. “Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based—here, the period of active duty for training.” Id. at *6. The Court reasoned, “In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.” Id. at *6. The Court no record of such an examination or assertion by the veteran that such an examination took place and that without such, the presumption of soundness does not apply.
The Court then specifically considered the presumption of service connection, which states a veteran is entitled to a presumption of service connection for a chronic disease which manifests to a degree of 10 percent or more within one year from the date of separation from service. The Court found “a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection. By definition, the presumption of service connection applies where there is no evidence that a condition begin in or was aggravated during the relevant period of service. By contrast, for a claimant whose claim is based on a period of active duty for training to establish entitlement to benefits, there must be some evidence that his or her condition was ‘incurred or aggravated’ during the relevant period of service. 38 U.S.C. § 101(24)(B). These circumstances are necessarily mutually exclusive—it is not possible for there to be both no evidence and some evidence of in-service incurrence of a condition.” Id. at *8.
The Court adopted a similar argument related to the presumption of aggravation and determined that “active military, naval, or air service” does not include active duty for the purposes of training when you are in the National Guard. Id. at *9-*10. The Court relied on 38 U.S.C. § 101(24) which distinguishes between active duty and active duty for training “during which the individual concerned was disabled or died from a disease or injury or aggravated in the line of duty.” Id. at *10. Thus, active duty for training requires evidence that a preexisting condition be aggravated in the line of duty (which the Court further elucidated as that caused by the period of active duty for training).
Regarding the presumption of soundness, I understand and appreciate the Court’s argument that the statute requires something more than just active duty but an examination, acceptance and enrollment into active duty but wonder if a fuller factual background could reveal some arguments that status in the National Guard combined with entering active duty for training triggers the examination, acceptance and enrollment requirements. As to the presumption of service-connection, the Court seems to ignore the practical fact that evidence can exist to support a claim but the presumption still apply. As to the presumption of aggravation I think they over extend their reasoning.
In short, this decision represents a potentially serious erosion of protection for those service in active duty for the purposes of training. I understand the Court’s desire to place limits on the reach of benefits, especially based on the facts of this case. However, I am also concerned that the facts of this case and the law it created could have negative repercussions for many who are absolutely deserving of service connection.
Decided by Judges Hagel, Lance, and Davis.
