Citation Nr: 0310447 Decision Date: 05/30/03 Archive Date: 06/02/03 DOCKET NO. 01-08 295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bleeding stomach and duodenal ulcers. 2. Whether the appellant has basic eligibility for Department of Veterans Affairs (VA) non-service-connected pension benefits. ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The appellant was a member of the Oklahoma Air National Guard (ANG), and performed active duty for training (ADT) from May 19, 1963, to August 15, 1963. He was discharged from the Air National Guard and transferred to the Air Force Reserve in October 1963. He remained a member of the Air Force Reserve, with a period of 12 days of ADT in February 1965, until his discharge in August 1966. This matter comes to the Board of Veterans' Affairs (Board) on appeal from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the appellant did not specifically indicate, on his substantive appeal in September 2001, whether he wanted a Board hearing. Rather he said, "I did not check a box because I have not received the medical & Hon. Discharge records requested." Thereafter, in a February 2002 letter sent to the appellant's last known address of record, the RO advised him that his case was being certified to the Board for consideration of the issues on appeal, and provided him with instructions for requesting a hearing or submitting additional information. The veteran did not respond to that letter and there is no indication that he did not receive it. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (law requires only that VA properly mail a notice, and then presumes the regularity of the administrative process and presumes receipt by the addressee in the absence of clear evidence to the contrary). As a result, the Board believes all due process requirements were met with regard to his right to have a hearing. FINDINGS OF FACT 1. The objective and competent medical evidence of record fails to demonstrate that any currently diagnosed duodenal ulcer or bleeding stomach is related the appellant's period of active duty for training from May 19 to August 15, 1963. 2. The appellant's service records establish that he had 2 months and 27 days (88 days) of active duty for training, from May 19 to August 15, 1963, and the service department certified that one day of travel was authorized at discharge, for a total of 89 days of peacetime Air National Guard ADT. A January 1965 service department Reserve Order indicates that the veteran was ordered to training duty for 12 days, apparently in February 1965. CONCLUSIONS OF LAW 1. Neither a bleeding stomach nor duodenal ulcer was incurred during the veteran's active duty for training. 38 U.S.C.A. §§ 101(24), (26), 1131, 5100-5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2002). 2. The appellant does not meet the basic service eligibility requirements for entitlement to non-service-connected VA pension benefits. 38 U.S.C.A. §§ 101(2), (24), (26), 107, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.203 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a report of medical history completed in February 1963, when he was examined for enlistment into the Air National Guard, the appellant checked "no" to having frequent indigestion or stomach or intestinal trouble. When examined that day, his abdomen and gastrointestinal system were normal, and he was found qualified for enlistment in the ANG. On a report of medical history completed in July 1963, when he was examined for separation from ADT, the appellant stated that he had not experienced any significant illness or injury since being examined in February 1963, and checked "no" to having frequent indigestion or stomach trouble. The examiner medically cleared the appellant for separation. A separation examination report is not among the appellant's service medical records. The appellant submitted copies of service department records indicating that he enlisted in the Air National Guard on February 25, 1963. A service department Special Order dated that day indicates that he was assigned to enter basic military training on May 19, 1963. According to a May 10, 1963, Special Order, he was ordered to active duty for twelve weeks for Phase I, U.S. Air Force basic military training, with subsequent entry into the Air Policeman Course. The appellant was ordered to report from his home of record at such time so as to report to Lackland Military Training Center at Lackland Air Force Base, Texas, on May 19, 1963, for five weeks, followed by secondary training for seven additional weeks. Further, it was provided, "Airman will be released from organization attached on effective dt of release from tng on 13 Aug 63 and is authorized necessary travel time to arrive at pl from which ordered to active dy, on which dt he will revert to inactive status." Service department records reflect that the appellant graduated from the Air Policeman Course on August 13, 1963. According to a service department record of Special Orders, dated August 9, 1963, he was released from active duty on August 15, 1963, and was authorized one day of travel back to his home. According to the appellant's Report of Transfer or Discharge (DD Form 214) from the Air National Guard of the United States (ANGUS), he had been under orders for active duty for training, upon which he had entered on May 19, 1963, and from which he was released on August 15, 1963. The DD Form 214 reflects that the appellant had 2 months and 27 days of total active service, and his terminal date of reserve obligation was February 24, 1969. An October 1963 Record of Military Status of Registrant (DD Form 44) indicates that the appellant was honorably discharged on October 18, 1963, as a member of the Air National Guard of the State of Oklahoma (by reason of convenience of the government (removal from the State)) and became a member of the Air Force Reserve, assigned to the Ineligible Reserve Section, Air Reserve Records Center, Denver, Colorado. A December 1963 Reserve Orders record from the Headquarters of the Air Reserve Records Center (CONAC) in Denver, Colorado, indicates that the appellant was assigned to the USAF Hospital Sheppard, at Sheppard AFB, Texas. A January 1964 DD Form 44 indicates that he was in the Air Force Reserve, enlisted, and continued to service satisfactorily in an other-than-ready-reserve unit. No information was provided in the section entitled "Period of 3 to 6 Mos active Dy for Tng". A January 19, 1965, Reserve Order amended a previously issued order and stated that the appellant was "ordered to active dy for 12 days, for purpose of tng in AFSC 60350". The appellant's service personnel file (AF Form 7) indicates that, as of February 25, 1965, he had "Less Than 60 Days AD [active duty] (12)". In April 1966, the appellant submitted a Medical Qualification Form indicating that he was not on extended active duty, and thought he was medically disqualified. He apparently attached a physician's statement to support his contention. A May 12, 1966, service record signed by J.S.M., a surgeon and lieutenant colonel, shows that the appellant believed he was medically disqualified for general military service and submitted a copy of his physician's evaluation to the effect that he had been treated for a small superficial ulcer (stomach) in November 1964. The physician did not indicate the current status of the ulcer. A copy of the physician's statement is not appended to either record. An August 1966 DD Form 44 reflects that the appellant enlisted in a reserve component of the armed forces on February 25, 1963, and was discharged on August 17, 1966, as a reserve of the Air Force by reason of physical disability. Private medical records, dated from 1986 to 1998, reflect that, in 1987, the appellant sustained a gunshot wound of the left hand and, in 1987, underwent a left upper extremity amputation at the distal forearm level. In October 1990, he was hospitalized for treatment of a right arm abscess and gave a history of having a "heart attack" in November 1989 but, upon further discovery, the examiner concluded that there was no definite history of that. The appellant's past medical history included a left forearm amputation, multiple injuries in a November 1989 motor vehicle accident, and that he indicated he was totally disabled and could barely get around with a walker. A June 1991 private hospital record indicates that the appellant was seen in the emergency room with symptoms of nausea and vomiting for the past couple of days, and was hospitalized. He reported drinking alcohol excessively without eating or drinking much, and then experienced nausea and vomiting, with no abdominal pain, hematemesis, melena, or blood in the stools. A consultation report includes a clinical impression of dehydration and malnutrition, vomiting and nausea, most likely due to alcoholic gastris, with a need to "rule out" peptic ulcer disease. The appellant was privately hospitalized in January 1996 after a sudden onset of bloody diarrhea that weakened him. He denied having taken any alcohol, and the record reflects a history of peptic ulcer disease. Upon examination and treatment, the final diagnoses included lower gastrointestinal bleeding, gastritis, and gastric ulcer. An April 1996 hospital record indicates that the veteran underwent an esophagogastroduodenoscopy (EGD), and the ensuing clinical impression included gastric ulcers. Private medical records further indicate that the appellant was hospitalized from June to July 1998 for treatment of "PVD" (peripheral vascular disease). He was transferred to another private facility through September 1998. That hospital's discharge summary describes a history of peptic ulcer disease and that the appellant was transferred after an aortic femoral bypass complicated by adhesion and wound infection. He developed complications and respiratory distress that required more intensive medical care. When discharged in mid-September, the principal and other diagnoses included respiratory failure secondary to sepsis, status post aortic femoral bypass with open abdominal wound, diabetes mellitus, hypertension, peripheral vascular disease. In a written statement received in December 2000 with his claim for benefits, the veteran said he had only one document confirming stomach ulcers, dated May 12, 1966, and signed by Dr. John S. McNeil. He said it showed his treatment for the condition in November 1964. He said, "[a]ctually, my stomach problems began in 1963, but they were sporadic." In April 2001, the National Personnel Records Center (NPRC) confirmed that the appellant had active duty for training only. In his July 2001 notice of disagreement, the veteran asserted that his stomach ulcers were first diagnosed soon after his basic training and technical school graduation active duty period at Lackland AFB during 1963, well before treatment in 1964. He indicated that a physician at the time said his ulcers could and probably were the result of excessive acid secretion in his stomach due to recent stress, and also the result of service related activities. In September 2001, the appellant submitted his substantive appeal and additional information, including a copy of the May 1966 service department record indicating that he had a superficial ulcer in November 1964. He appended a note to that document stating, "the ulcer mentioned here was aquired [sic] long before Nov. 1964 & diagnosed before then & reported at SAFB, TX before then, & before May, 1966, discovered by blood in stool, confirmed by upper & lower G.I. series barium x-rays, etc." On a copy of the April 1966 Medical Qualification Form, noted above, the appellant noted that a physician's statement was appended and there should be at least two statements and possibly four or five medical statements from 1964 to 1966, and questioned where they were. II. Analysis A. Veterans Claims Assistance Act During the pendency of this claim, in November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-175 (2000) (now codified at 38 U.S.C.A. §§ 5100-5103A, 5106-7 (West 2002)), which substantially modified the circumstances under which VA's duty to notify and assist claimants applies, and how that duty is to be discharged. The new statute revised the former section 5107(a) of title 38, United States Code, to eliminate the requirement that a claimant must come forward first with evidence to well ground a claim before the Secretary of Veterans Affairs is obligated to assist the claimant in developing the facts pertinent to the claim. Judicial case law is inconsistent as to whether the new law is to be given retroactive effect. The U.S. Court of Appeals for Veterans Claims has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in Court at the time of its enactment. However, the U.S. Court of Appeals for the Federal Circuit has held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"); see also Stephens v. Principi, 16 Vet. App. 191 (2002) (per curiam) (holding that a remand for the Board to consider the matters on appeal in light of the VCAA sections codified at sections 5102, 5103 and 5103A is not required). In addition, it is noted that in Mason v. Principi, 16 Vet. App. 129 (2002), the Court of Appeals for Veterans Claims held that, in a case where a veteran was not eligible for non-service-connected pension benefits because he did not have the requisite wartime service, the VCAA was not applicable. The Court reasoned that, in such a case, the law, and not the evidence, was dispositive of the veteran's claim. Although the Federal Circuit appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, the Court stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. VA has published regulations to implement many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide a claimant who files a substantially complete application for VA benefits. These new regulations also provide guidelines regarding VA's duties to notify claimants of necessary information or evidence and to assist claimants in obtaining evidence. The new regulations, which in pertinent part are effective as of the date of enactment of the VCAA, interpret and implement the mandates of the statute, "and do not provide any rights other than those provided by the VCAA." 66 Fed. Reg. 45,629. For the reasons discussed below, the Board finds that the requirements of the VCAA and the implementing regulations, to the extent they are applicable, have been satisfied in this matter. Changes potentially relevant to the appellant's appeal include the establishment of specific procedures for advising the claimant and his or her representative, if any, of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. The Board finds that the requirements of the VCAA have clearly been satisfied in this matter. We note that the appellant was advised, by virtue of a detailed statement of the case (SOC), of the pertinent law, and what the evidence must show in order to substantiate his claims. We, therefore, believe that appropriate notice has been given in this case. The Board notes, in addition, that a substantial body of lay and medical evidence was developed with respect to the appellant's claim, and the SOC issued by the RO clarified what evidence would be required to establish service connection and basic eligibility for non-service- connection pension. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), infra; VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Further, in December 2002, the Board sent a letter to the appellant at his last known address of record regarding the VCAA and its effect on his claims. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (noting that VA must communicate with claimants as to the evidentiary development requirements of the VCAA). See also Charles v. Principi, 16 Vet. App. 370, 373-74 (2002) (holding that the Board must also adequately address the notice requirements of the VCAA). The Board observes that the December 2002 letter was returned, as there was no updated address. In that regard, we must emphasize, as has the Court, that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, a claimant is under a duty to keep the RO (and, when necessary, the Board) apprised of a means of communicating with him, whether he has a regular residence or not. See 38 C.F.R. § 1.710. The Court has declared that there is no burden on the part of VA to turn up heaven and earth to locate a veteran. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Thus, in light of the appellant's failure to advise VA of his current address, and considering VA's efforts to contact him, the Board believes that the notice and assistance requirements of due process of law are satisfied and the issues on appeal are now ready for appellate consideration. Accordingly, the Board believes that VA has no outstanding duty to inform the appellant or his representative that any additional information or evidence is needed to substantiate his claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended at 38 U.S.C.A. § 5103). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claims has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. While in a November 2001 telephone conversation, according to a note in the claims file, the appellant advised the RO that he had additional medical evidence to submit and the RO sent him a letter and requested that he submit a completed medical authorization to enable it to obtain the records he identified, he did not return the signed form or submit the medical evidence. Thus, the Board is satisfied that all relevant facts have been properly and sufficiently developed, and that the appellant will not be prejudiced by our proceeding to a decision on the basis of the evidence currently of record regarding his claims for service connection for a bleeding stomach and duodenal ulcers and a permanent and total rating for pension purposes. As discussed in detail above, the Board has reviewed the evidence of record and determined that all notification and development actions required by the new legislation appear to have been completed to the extent necessary under the circumstances. Accordingly, we find that VA has satisfied its duty to assist the appellant in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claims, under both former law and the new VCAA, to the extent it is applicable. The Board, therefore, finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court has stated, "The VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims." Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc); see Stephens v. Principi, supra. B. Discussion 1. Service connection for bleeding stomach and duodenal ulcers Pursuant to 38 U.S.C.A. §§ 1100, 1131 (West 2002), a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. Service connection may also be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ADT) or injury incurred or aggravated while performing inactive duty training (IADT). 38 U.S.C.A. §§ 101(24), 106; 38 C.F.R. § 3.6. Service-connected disability compensation may be paid only to a "veteran." The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who is discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(24) defines the term "active military, naval, or air service" as including "active duty" and "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." The term "active duty" is defined in 38 U.S.C.A. § 101(21) to include "full-time duty in the Armed Forces, other than active duty for training." Further, "active duty for training" includes full-time duty performed by Reservists for training purposes. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c). Annual training is an example of active duty for training, while weekend drills are inactive duty training. As noted above, the appellant performed ADT from May 19 to August 15, 1963, in the Air National Guard. Then, after transferring to the Air Force Reserve, he evidently had 12 days of ADT or IADT early 1965, and was discharged in August 1966. Thus, with respect to the appellant's Air National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ADT or injury incurred or aggravated while performing IADT. 38 U.S.C.A. §§ 101(24), 106, 1131; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is not legally merited when the disability results from a disease process. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The Court of Appeals for Veterans Claims has recognized these important distinctions between different types of military service in the context of service connection. See generally Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); see also Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995). Even if there is no record of a gastric or duodenal ulcer in service, its incurrence in service will be presumed if it was manifest to a compensable degree within one year after service, if the claimant had 90 days of continuous active service and served in a period of war. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). In this case, however, the service department records do not show any active service extending for 90 days during wartime. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). It is clear that "[t]he regulations regarding service connection do not require that a veteran must establish service connection through medical records alone." Triplette v. Principi, 4 Vet. App. 45, 49 (1993), citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is equally clear, however, that the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). The appellant has contended that service connection should be granted for a bleeding stomach and duodenal ulcers. Although the evidence shows that the veteran experienced gastrointestinal bleeding in 1996 and has been diagnosed with gastric ulcers, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof. On the other hand, the record reflects that his gastrointestinal system and stomach were normal when examined for separation from ADT in July 1963. The first post-service mention in the record of gastrointestinal disability or ulcer was the May 1966 service record that made reference to a physician's statement regarding November 1964 treatment for superficial ulcers, more than one year after the appellant's separation from active duty for training and during the veteran's period of Air Force Reserve inactive duty service. In short, no medical opinion or other medical evidence relating the appellant's gastrointestinal bleeding or gastric ulcers to active service or any incident of active service has been presented. The appellant is certainly capable of providing evidence of symptomatology, but, as noted above, a layperson is generally not capable of opining on matters requiring medical knowledge. Here, the appellant has not submitted any medical opinion or other medical evidence that supports his claim. The evidence now of record fails to show that the appellant has a bleeding stomach or duodenal ulcers related to his active duty for training or any incident thereof. The preponderance of the competent and probative medical evidence of record is against the appellant's claim of entitlement to service connection for a bleeding stomach and duodenal ulcers. Thus, this claim must be denied. 2. Basic eligibility for pension The appellant contends that he is eligible for a permanent and total rating for pension purposes. Non-service-connected pension benefits are provided to veterans who are permanently and totally disabled from non-service-connected disability that is not the result of willful misconduct, but such pension may only be granted where the veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b) (2002). Service requirements are met if the veteran 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 days or more and such a period began or ended during a period of war; (4) or 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(a), (j); 38 C.F.R. § 3.3. As noted above, "active military, naval, and 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 for training during which the individual concerned was disabled or died from an injury or aggravated in line of duty. 38 C.F.R. § 3.6(a). The designated periods of war, for the Vietnam era, include from February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. For individuals who did not serve in Vietnam, the Vietnam era began on August 5, 1964, and ended on May 7, 1975, inclusive. See 38 U.S.C.A. § 101; 38 C.F.R. § 3.2(f). The Board must determine whether the appellant has established threshold eligibility for a non-service-connected pension. In applying the applicable legal criteria to the facts in this case, the Board observes that the appellant's DD Form 214 reflects that he had active duty for training in 1963. There is no indication, nor has the appellant maintained, that he served in the Republic of Vietnam at any time from February 28, 1961, to May 7, 1975. The appellant's ADT from May to August 1963 fell before the Vietnam era, as defined by law for those without service in the Republic of Vietnam. Moreover, in any event, there is no evidence that the veteran ever served on full-time active duty, only ADT and IADT. VA's determination of whether a claimant's service meets these threshold requirements usually is dependent upon service department records verifying the character of a claimant's service. See 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). As noted above, the appellant's DD Form 214 reflects that he had orders for ADT, entered service on May 19, 1963, and was released from that training service on August 15, 1963. The record indicates that he served for 2 months and 27 days. Clinical records for this period are consistent with the information provided on the DD Form 214. The appellant's terminal date of reserve obligation was February 24, 1969, as reflected on the DD Form 214. His DD Form 44 reflects that, in August 1966, he was discharged from the Air Force reserve by reason of physical disability. The Board notes that, by statute, active duty for training does not constitute active military service, unless the individual on active duty for training was disabled or died from a disease or injury incurred or aggravated during that training. In this case, the appellant has argued that a bleeding stomach disabled him and duodenal ulcers were incurred or aggravated during his ADT, but the Board has determined that the preponderance of the evidence is against that assertion. The appellant's claim that he incurred or aggravated a disability during ADT has been denied, and his 1963 ADT may not be counted as active military service for the purposes of whether he served the required 90 days so as to meet the threshold eligibility requirement for non- service-connected disability pension. The appellant maintains that he has the requisite 90 days of service to give him basic eligibility for pension on the basis that he continuously served in the Air National Guard on ADT from May 19 to August 15, 1963, a period of 88 days, plus one day for travel, and he also had 12 days of training duty in January or February 1965, for a possible total of 101 days. Nevertheless, there is simply no evidence of any type which establishes that the appellant's service meets the threshold eligibility requirement of 90 consecutive days, part of which fell during wartime, so as to meet the first criterion specified in 38 U.S.C.A. § 1521. Even assuming, arguendo, that the Board were to concede that the veteran served for an aggregate period of 90 days, he does not meet the requirement of a period of 90 consecutive days or more beginning or ending during a period of war, or an aggregate of at least 90 days in two or more separate periods of service during more than one period of war. Thus the appellant does not meet the eligibility thresholds of criterion three or four under 38 U.S.C.A. § 1521. However, the appellant could still qualify for basic eligibility for pension if he had ed during a period of war and was discharged or released there from f a service- connected disability. In this case, however, according to the appellant's DD Form 44, the evidence establishes that he was discharged from the Air Force Reserve in August 1966 due to physical disability,and records dated in May 1966 indicate that he had had superficial ulcers treated in November 1954. As concluded by the Board earlier in this decision, service connection has been denied for a bleeding stomach and duodenal ulcers. Thus, the Board finds that the appellant's release from Air Force Reserve service does not meet the second threshold requirement for basic pension eligibility. A claim for non-service connection pension by a claimant whose service department records failt to show threshold eligibility lacks legal merit or legal entitlement, and such a claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As noted above, 38 U.S.C.A. § 1521 specifies four alternative threshold criteria for eligibility for non-service-connected pension. The appellant does not meet any of the threshold criteria. As such, his claim must be denied. ORDER Entitlement to service connection for a bleeding stomach and duodenal ulcers is denied. Basic eligibility for VA non-service-connected pension benefits is not established, and the appeal is denied. _____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.