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           NOTE: This order is nonprecedential.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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