UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 01-45

KENNETH MASON, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided May 24, 2002 )

Kenneth Mason, pro se.

Tim S. McClain, General Counsel; Ron Garvin, Assistant General Counsel; Darryl A. Joe,

Acting Deputy Assistant General Counsel; and Erica M. Dornburg, all of Washington, D.C., were

on the brief for the appellee.

Before FARLEY, HOLDAWAY, and GREENE, Judges.

GREENE, Judge: Veteran Kenneth Mason appeals, pro se, a November 12, 2000, Board of

Veterans' Appeals (Board) decision that denied a claim for a permanent and total disability rating

for pension purposes. The Board remanded the veteran's claims for service connection for residuals

of a neck injury and of a low-back injury and, therefore, those matters are not before this Court for

review. See Morgan v. Brown, 9 Vet.App. 161 (1996) (per curiam order). Mr. Mason filed an

informal brief and the Secretary filed a motion for summary affirmance. The Court has jurisdiction

under 38 U.S.C. § 7252(a). As explained below, the Board's decision will be affirmed. 

I. FACTS

The facts are not in dispute. See Secretary's Motion at 2-5. Mr. Mason served on active duty

in the U.S. Navy from January 1978 to July 1985. Record (R.) at 86-87. In November 1994, he filed

an original claim for VA benefits. R. at 89-92. A June 1995 Los Angeles, California, VA Regional
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Office (RO) decision denied his claims for service connection for eye and low-back conditions. R. at

142-44. The decision noted: "Qualifying service for entitlement to pension is not in evidence."

R. at 144. 

An April 1997 RO decision noted that Mr. Mason had never been formally denied

non-service-connected (NSC) pension benefits, but that his record revealed no qualifying service.

R. at 262. An October 1998 RO decision also noted that he had never been denied NSC pension

benefits. R. at 290. A November 1998 letter informed him that no decision was ever made on a

claim for pension benefits because it appeared that he did not meet one of the basic eligibility

requirements, service during a wartime period. R. at 292. Mr. Mason responded that he had served

in a wartime period: "In 1980 when Iran took those 200 Americans I was aboard the U.S.S. William

H. Standley (CG-32) home ported in San Diego, California, condition three (3)." R. at 297-99. A

February 1999 letter from the RO informed him that Congress had not designated "the Iranian

problem" a "wartime period." R. at 301-02. 

In May 1999, Mr. Mason filed a Notice of Disagreement concerning the RO's denial of the

NSC pension claim. R. at 312-13. In August 1999, the RO issued a Statement of the Case. R. at

315-20. Mr. Mason's Substantive Appeal reiterated his belief that the Iranian situation was a period

of war. R. at 322-23. The Board, on November 12, 2000, determined that Mr. Mason's active

service did not fall within any period of war as defined in 38 C.F.R. § 3.2. Thus, the Board

concluded: "[T]he veteran's claim for entitlement to a permanent and total disability rating for

pension purposes must be denied because of the absence of legal merit or lack of entitlement under

the law." R. at 4. The Board also noted that because Mr. Mason had not identified any record that

would demonstrate that he had the requisite wartime service, additional assistance under the

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9,

2000), was not required. Id. This appeal followed.

In his informal brief, Mr. Mason asserts entitlement to a full grant of all the benefits he

requests, including pension benefits, but fails to assert any specific errors of fact or law requiring

reversal or remand of the Board's decision. The Secretary argues that the absence of legal merit, or

lack of entitlement under the law, mandates that the Board decision be summarily affirmed. He

asserts that Mr. Mason's claim lacks legal merit because he clearly does not have wartime service.
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He notes, in the interest of completeness, that Congress recently enacted the VCAA, but that despite

the broad impact of the VCAA, readjudication is not required because the law and not the evidence

is dispositive in this case. 

II. ANALYSIS

To establish entitlement to VA NSC pension benefits under 38 U.S.C. § 1521, a veteran must

show (1) that he served during a period of war for 90 days or more (or was discharged or released

from service during a period of war for a service-connected disability); (2) that he is permanently and

totally disabled; and (3) that his income is below a certain standard. 38 U.S.C. § 1521(a), (j);

Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Fischer v. West, 11 Vet.App. 121, 123

(1998); see also 38 U.S.C. § 1522. The term "period of war" is defined to include the following:

[T]he Spanish-American War, the Mexican border period, World War I, World War

II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period

beginning on the date of any future declaration of war by the Congress and ending

on the date prescribed by Presidential proclamation or concurrent resolution of the

Congress.

38 U.S.C. § 101(11); see also 38 U.S.C. § 101(6)-(10), (29), (30), (33) (defining the time period for

each identified period of war); 38 C.F.R. § 3.2 (2001). Thus, there is no recognized period of war

between the end of the Vietnam era, May 7, 1975, and the beginning of the Persian Gulf War,

August 2, 1990. 

When a claim lackslegal merit or entitlement under the law, the Court will affirm the Board's

denial of that claim. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994); see also Rivers v. Gober,

10 Vet.App. 469, 471-72 (1997). Here, there is no dispute that Mr. Mason served on active duty

from January 1978 to July 1985. Further, he does not allege that he had any additional service. His

sole argument is that the Iranian hostage situation should be considered a "period of war." Congress

has clearly defined "period of war," and this Court has no authority to extend or expand that

definition. See 38 U.S.C. § 101(11). Therefore, Mr. Mason did not serve on active duty during a

"period of war" and is not eligible for NSC pension benefits. See 38 U.S.C. § 1521; Sabonis, supra.

The Court notes that on November 9, 2000, the VCAA was enacted. The VCAA, among

other things, eliminated the well-grounded-claim requirement and amended VA's duty to notify
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claimants and their representatives of any information or evidence necessary to substantiate their

claims. See generally VCAA §§ 3, 4, 7. However, during the drafting of the VCAA, Congress

observed that it is important to balance the duty to assist

against the futility of requiring VA to develop claims where there is no reasonable

possibility that the assistance would substantiate the claim. For example, wartime

service is a statutory requirement for VA [NSC] pension benefits. Therefore, if a

veteran with only peacetime service sought pension, no level of assistance would

help the veteran prove the claim; and if VA were to spend time developing such a

claim, some other veteran's claim where assistance would be helpful would be

delayed.

146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller). Thus, because

the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not

applicable. See Smith (Claudus) v. Gober, 14 Vet.App. 227 (2000) (holding that VCAA did not

affect federal statute that prohibits payment of interest on past due benefits), aff'd, 281 F.3d 1384

(Fed. Cir. 2002); Sabonis, supra.

III. CONCLUSION

Upon consideration of the pleadings and review of the record, the Court holds that the

appellant has not demonstrated that the Board committed either legal or factual error that would

warrant reversal or remand. The Court is also satisfied that the Board's decision fulfills the "reasons

or bases" requirement of 38 U.S.C. § 7104(d)(1). See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57

(1990). The Secretary's motion is granted, and the November 12, 2000, decision of the Board is

AFFIRMED.