Citation Nr: 0006225 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-15 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a nervous disorder. 2. Whether the appellant meets the military service requirements for non-service-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The appellant served in Alabama National Guard (NG). His NG unit has verified that the appellant's service from April 1974 to August 1981 included the following period of active duty for training service: June 28, 1974 to October 25, 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The claimant had active duty for training from June 1974 to October 1974. 2. A nervous disorder was not manifested during his active duty for training. 3. There is no competent medical evidence to show that a nervous disorder is related to the claimant's active duty for training or to any incident therein. 4. The appellant, who claims non-service-connected pension, had active duty for training from June 1974 to October 1974, is not service connected for any disability and, therefore, does not have status as a veteran. CONCLUSIONS OF LAW 1. The claim of service connection for a nervous disorder is not well grounded. 38 U.S.C.A. §§ 101, 1110, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1999). 2. The appellant does not meet the military service requirements to be basically eligible for non-service- connected pension benefits. 38 U.S.C.A. §§ 101, 1521 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Nervous Disorder Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); see also Biggins v. Derwinski, 1 Vet. App. 474, 477- 78 (1991) (discussing provisions of section 101(24)). In other words, service connection is not warranted for diseases unless the individual was on active duty for training at the time of the disablement or death due to the injury or disease. Brooks v. Brown, 5 Vet. App. 484, 485 (1993); VA O.G.C. Prec. 86-90, 56 Fed. Reg. 45,712 (1990). "Injury" is defined as harm resulting from some type of external trauma and "disease" is defined as harm resulting from some type of internal infection or degenerative process. For a well-grounded claim of service connection, there must be competent evidence of a current disability (a medical diagnosis), of inservice incurrence or aggravation of a disease or injury (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra). The record demonstrates that from June 1974 to October 1974, the appellant was on active duty for training. However, he was not disabled from a disease or injury incurred or aggravated during this period of active duty for training. The appellant has a current medical diagnosis of schizophrenia; however, he has not submitted any competent (medical) evidence showing that such disorder resulted from active duty for training. Post service private medical records reveal that the appellant was seen for several psychiatric disorders from April 1986 to November 1997. In February 1987 the appellant reported that he had had problems with his nerves since 1975. There is no medical opinion indicating a nexus, or relationship, between the appellant's nervous disorder and his period of active duty for training. The appellant submitted lay statements in October 1997 and August 1998 describing his nervous disorders symptoms. Both lay statements indicate that the appellant began behaving differently and that his symptoms began after his weekend drills with the Alabama National Guard. At a January 2000 Board videoconference the appellant testified that his nervousness and schizophrenia were acquired during a weekend drilling session, with the Alabama National Guard, when he was in the presence of weapons simulators in 1976. The appellant has not brought forth competent medical evidence of a relationship between a nervous disorder and his period of active duty for training. He testified that he believes that his nervous disorder is related to his weekend drills with the Alabama National Guard. He has failed to submit competent medical evidence of a nexus between a nervous disorder and a disease or injury incurred during his period of active duty for training therefore, the claim is not well grounded. See Caluza, supra. Accordingly, the appellant's claim for service connection for a nervous disorder is denied. Although VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim when it is determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette, supra. Here, VA fulfilled its obligation under section 5103(a) by issuing a statement of the case in August 1998. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied at the RO level. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under § 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). II. Non-Service-Connected Pension The appellant is claiming non-service-connected pension benefits. The question to be answered concerning this issue is whether or not he has presented a legal claim for a VA benefit. Sabonis v. Brown, 6 Vet. App. 426 (1994). If he has not done so, his appeal must be denied. As explained below, the Board finds that he has not submitted such a claim. The law authorizes payment of non-service-connected pension to a veteran who meets various criteria. One of the primary criterion is the military service requirement. Other requirements include that the veteran be permanently and totally disabled and meet income and net worth limitations. The present case involves the question of whether the appellant has met the military service requirements for pension. An appellant meets the service requirements for pension if he is a veteran who served in the active military, naval or air service (1) for 90 days or more during a period of war, (2) during a period of war and was discharged or released from such service for a service-connected disability, (3) for a period of 90-consecutive days or more and such period began or ended during a period of war, or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. §§ 3.3(a)(3), 3.314. A veteran is a person who had active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Active military, naval, or air service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. Active duty means full-time duty in the Armed Forces, other than active duty for training. 38 U.S.C.A. § 101(2), (21), (23), (24); 38 C.F.R. § 3.6. In the case of members of the Army National Guard of any state, full-time duty is duty served under 32 U.S.C.A. § 316, 502, 503, 504 or 506, or prior corresponding provisions of law. 38 U.S.C.A. § 101 (22)(C). The appellant does not have the requisite service necessary for pension benefits. The record demonstrates that from June 1974 to October 1974, he was on active duty for training. There are no established service connected disabilities from this period of service. The service department has certified that the service from June 1974 to October 1974 was active duty for training, and such must be accepted by the Board. 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530 (1992). Even though the service was for over 90 days and during a period of war, and the appellant was on active duty for training, he was not disabled from a disease or injury incurred or aggravated in the line of duty. In addition, there is no indication that the subsequent drilling during the weekends, as claimed, qualified as active duty for training or inactive duty training under 32 U.S.C.A. § 316, 502, 503, 504 or 506, or prior corresponding provisions of law. Therefore, the appellant is not considered a veteran for pension benefits purposes. In sum, the appellant has no qualifying military service that would convey veteran status. Therefore, the appellant has not stated a legal claim for pension upon which relief may be granted. Therefore, the appeal is denied. ORDER Service connection for a nervous disorder is denied. The claim, that the appellant meets the military service requirements for pension benefits, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals