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Court of Appeals for Veterans Claims Brief: BVA Denial of Servie Connection (Brief 1, p 10)

Disabilities: Stomach Disorder, metatarsalgia of the right foot, and Bilateral foot and leg disorder

Court of Appeals for Veterans Claims Brief: BVA Denial

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The Board's Reasoning
In the BVA Decision the BVA noted that "Regarding the veteran's claim for higher evaluation for his service-connected right ankle disability, the BVA stated that based on a September 13, 2005 VA examination, the veteran's disability rating was increased from 10 percent to 20 percent effective with the date of that exam (R. 12). The BVA stated that prior to September 2005 the assigned 10 percent rating was appropriate for moderate limitation of motion, and since September 2005, the maximum 20 percent rating was warranted for incoordination of the joint" (R. 14).

The Board erred by analyzing only whether the veteran's alleged service-connected impairments or those alleged to be secondary to service connection were incurred during periods of Active Duty and failed to analyze whether any of the veteran's alleged service-connected impairments or those alleged to be secondary to service connection were incurred or aggravated during a period of Active Duty for Training.

According to the Regulations, Active duty means full-time duty in the Armed Forces, other than active duty for training. 38 U.S.C. §101(21)(A). The term "active duty for training" means full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.S. §101(22)(A).

In a similar case, Dunlap v. Nicholson, 21 Vet. App. 112 (2007), the veteran served on active duty for training in the US Army and brought a claim for depression incurred during the period of training. His service consisted primarily of two-week training periods each summer and the two-week period relevant to his appeal was one that began on July 29, 1973. A few days after reporting for training duty on that date, the Army designated Mr. Dunlap unfit for duty and sent him home. Dunlap v. Nicholson, 21 Vet. App. 112 (2007)

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