Ramos v. Shinseki

Case: 11-7169 Document: 21 Page: 1 Filed: 01/03/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOSE L. SERRANO RAMOS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7169
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-0367, Judge Mary J.
Schoelen.
Before BRYSON, LINN and REYNA, Circuit Judges.
PER CURIAM.
ORDER
Jose L. Serrano Ramos appeals from a decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying him entitlement to service
connection. We affirm.
In December 1982, while serving in the Puerto Rico
National Guard, Serrano Ramos suffered a cranial frac-
ture in an automobile accident. Seventeen years after
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JOSE SERRANO RAMOS v. SHINSEKI 2
that accident, he filed a disability compensation claim for
residuals of a skull fracture, but that claim was denied by
a Department of Veterans Affairs (“DVA”) regional office
on the ground that the accident did not occur during a
qualifying period of service.
On appeal, the Board of Veterans’ Appeals (“Board”)
upheld the denial of service connection. The Board con-
firmed that Serrano Ramos was only called into active
duty training or full time training duty from February 9,
1981 to July 2, 1981, May 13 to May 14, 1982, and from
July 3 to July 17, 1982, and thus the accident did not
occur during a qualified period of service. The Board
further explained that there was no evidence to suggest
that Serrano Ramos’s condition was incurred or aggra-
vated during the time he was called up to active duty.
Serrano Ramos appealed the Board’s decision to the
Veterans Court, which affirmed. Like the Board, the
Veterans Court rejected the argument that Serrano
Ramos was entitled to service connection since he could
have been called into active duty at any time. Because
Serrano Ramos’s injury did not occur when he was or-
dered into federal service, the Veterans Court held that
DVA disability compensation benefits were not available
to him.
On appeal before this court, Serrano Ramos contends
generally that the Veterans Court erred in its interpreta-
tion of service connection. It is true that National
Guardsman may be eligible for DVA benefits when called
into the service of the United States, such as when called
into active duty * or required by federal law to participate
* Service in the National Guard constitutes “active
duty” for purposes of DVA benefits only when ordered into
service as a reserve component of the Armed Forces, see
38 U.S.C. §§ 101(21),(10), 101(29); 10 U.S.C. §§ 10106,
12401 (“[M]embers of the Army National Guard of the
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3 JOSE SERRANO RAMOS v. SHINSEKI
in drills, field exercises, arms competitions, or military
school. See 38 U.S.C. §§ 101(20), (22)(C), (23)(C), 1131;
Allen v. Nicholson, 21 Vet. App. 54, 57-58 (2007) (“[T]o
have basic eligibility for veterans benefits based on a
period of duty as a member of a state Army National
Guard, a National Guardsman must have been ordered
into Federal service by the President of the United States,
see 10 U.S.C. § 12401, or must have performed ‘full-time
duty’”).
The Board in this case, however, found that Serrano
Ramos’s automobile accident did not occur during one of
those qualifying periods of duty. To the extent Serrano
Ramos seeks to challenge that finding, it is outside of this
court’s limited jurisdiction; this court “may not review (A)
a challenge to a factual determination, or (B) a challenge
to a law or regulation as applied to the facts of a particu-
lar case.” 38 U.S.C. § 7292(d)(2).
To the extent that Serrano Ramos suggests—as he did
below—that he could have been ordered into federal
service at any time, and thus should be deemed to have
been service-connected, the Veterans Court correctly held
that this argument is without merit. Members of the
National Guard only serve the federal military when they
are formally called into the service of the United States.
See Perpich v. Dep’t. of Def., 496 U.S. 334, 345 (1990);
Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir.
2003). Until ordered into federal service, National
Guardsman serve solely as a member of their state or
commonwealth militia. Clark, 322 F.3d at 1366. Because
Serrano Ramos was not eligible for an injury to have
occurred in the line of active duty at the time of the
automobile accident, the court rejects his argument that
United States and the Air National Guard of the United
States are not in active Federal service except when
ordered thereto under law”).
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JOSE SERRANO RAMOS v. SHINSEKI 4
his injury is service-connected. Because Serrano Ramos
does not raise any other argument within this court’s
limited jurisdiction, we affirm.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the Court of Veterans Claims is
affirmed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
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