Mason v. Principi
16 Vet. App. 129
Vet. App.
2002
Check Treatment
Docket

Kenneth MASON, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 01-45

United States Court of Appeals for Veterans Claims.

May 24, 2002.

16 Vet. App. 129

notes that 38 C.F.R. § 3.304(f) only requires, as to stressor corroboration, “credible supporting evidence” that the claimed in-service stressor occurred. The veteran‘s unit records are clearly credible evidence that the rocket attacks that the veteran alleges, did in fact, occur.

Factual findings by the Board will not be overturned by this Court unless they are “clearly erroneous.” 38 U.S.C. § 7261(a)(4); see

. Under the “clearly erroneous” standard, “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.”
. “Reversal is the appropriate remedy when ‘[t]here is absolutely no plausible basis’ for the BVA‘s decision and where that decision ‘is clearly erroneous in light of the uncontroverted evidence in appellant‘s favor.‘”
(citing
) (emphasis in original). The Court will reverse the Board‘s decision because the Board erred in interpreting the corroboration requirement too narrowly in violation of Suozzi by requiring the veteran to corroborate his actual proximity to and participation in the rocket attacks on Da Nang. Because the Board neglected to follow Suozzi, there is no plausible basis, in light of the uncontroverted evidence of the veteran‘s exposure to rocket attacks that is contained in his unit records, for the Board‘s factual determination that the veteran did not corroborate his alleged in-service stressor with independent evidence.

As noted above, the Board has conceded that the veteran has a current diagnosis of PTSD, which establishes the first element for the award of service connection for PTSD, and that, if the veteran‘s stressors were verified, they would provide the necessary nexus between the current diagnosis of PTSD in 1999 and the veteran‘s alleged stressor, which would establish the third element for service connection. R. at 4. Because the Board erred in finding that the veteran did not corroborate his in-service stressor, the second element for service connection is now established, and therefore all three elements necessary for the award of service connection for PTSD have been established. On remand the Board is instructed to grant the veteran‘s claim for service connection for PTSD and to assign the appropriate rating and effective date.

III. CONCLUSION

After consideration of the veteran‘s motion, the Secretary‘s motion, and the record on appeal, the Court holds that the Board committed error warranting reversal when it determined that the veteran did not corroborate his exposure to rocket attacks while stationed at Da Nang. Accordingly, the Court will grant the veteran‘s motion and the July 26, 2000, Board decision is REVERSED and the matter is REMANDED for proceedings consistent with this opinion.

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

(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 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. 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);

;
; 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 lacks legal merit or entitlement under the law, the Court will affirm the Board‘s denial of that claim. See

; see also
. 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 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

(holding that VCAA did not affect federal statute that prohibits payment of interest on past due benefits), aff‘d,
; 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

. The Secretary‘s motion is granted, and the November 12, 2000, decision of the Board is AFFIRMED.

KENNETH MASON

APPELLANT