BVA9505821 DOCKET NO. 93-07 709 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to basic eligibility for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from October 1960 to October 1962, and was discharged from the Reserves in September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. In March 1993, the veteran testified at a hearing before a travel section of the Board at the RO. The Board notes that in November 1992, the veteran raised the issue of entitlement to service connection for residuals of hernia surgery under 38 U.S.C.A. § 1151 (West 1991), and indicated his intent to file a claim against VA under the Federal Tort Claims Act. In a January 1993 (apparently misdated in January 1992) memorandum, the veteran's representative requested that the veteran's claim under § 1151 remain separate from the issue presently before the Board. The Board will refer this matter to the RO to be held in abeyance pending VA issuance of regulatory criteria that comport with the Supreme Court's decision in Brown v. Gardner, 115 S. Ct. 552 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his active military service and his service in the Reserves until September 1966 should be considered wartime service for purposes of establishing entitlement to nonservice-connected pension benefits. The veteran acknowledges that his period of active service does not meet the criteria set forth in 38 U.S.C.A. § 101(11) (West 1991) for wartime service, but asserts that because his unit was mobilized during the Bay of Pigs crisis, an exception to the law should be made so that his Reserve service could be considered wartime service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the veteran's claim of entitlement to basic eligibility for nonservice-connected pension benefits is legally insufficient. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran served on active duty only from October 1960 to October 1962. CONCLUSION OF LAW The veteran's claim of entitlement to basic eligibility for nonservice-connected pension benefits is legally insufficient. 38 U.S.C.A. §§ 110 (11), 1501, 1521, 5107(a) (West 1991); 38 C.F.R. §§ 3.2, 3.3, 3.17 (1994); Sabonis v. Brown, 6 Vet.App. 426 (1994). . REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the provisions of 38 U.S.C.A. § 1521(a) (West 1991), pension is payable to each veteran of a period of war who meets the service requirements of § 1521(j) and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of willful misconduct. A veteran meets the service requirements of § 1521(j) if he or she had active service: for ninety days or more during a period of war; during a period of war and was discharged or released from such service for a service-connected disability; for a period of ninety consecutive days or more and such period began or ended during a period of war; or for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. As a preliminary matter, the Board points out that nature and extent of the veteran's disabilities for which he is claiming entitlement to nonservice-connected pension benefits is not presently controlling. The question that is now before the Board concerns the veteran's basic eligibility for nonservice-connected benefits. For the reasons set forth below, the Board concludes that the veteran has not presented a legally sufficient claim. During his March 1993 hearing, the veteran testified that during his Reserve Service, he was a member of the Strategic Army Corps. He also testified that as a member of the Strategic Army Corps, he was on 24-hour alert. He further testified that his unit was mobilized to Florida for a two week period during the Bay of Pigs crisis, and that such activity should be included in the statutory definition of "period of war." In response to a question regarding whether his Reserve unit was mobilized during his Reserve service, apart from above-mentioned mobilization to Florida, the veteran responded in the affirmative. He testified, however, that he did not participate in these mobilizations. The term "period of war" has been defined as the Spanish-American War, the Mexican border period, World Wars I and 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 Congress. 38 U.S.C.A. §§ 101(11), 1501 (West 1991). The essence of the veteran's argument in support of his claim of eligibility for nonservice- connected benefits is that exceptions should be made to include, absent either Presidential proclamation or Congressional resolution, situations in which military units are mobilized for crisis intervention in the definition of "period of war" as set forth in 38 U.S.C.A. in §§ 101(11) and 1501. The veteran also argues that by virtue of his having been mobilized for approximately two weeks during the Bay of Pigs crisis, his Reserve service should be such an exception. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the United States Court of Veterans Appeals held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Id. at 430. In rendering decisions, the Board may only consider the evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. § 7104 (West 1991). In view of the veteran's not having met either the statutory or regulatory requirements necessary to establish eligibility for nonservice-connected pension benefits, the Board concludes that his claim must be denied under Sabonis, supra, and points out that Congress is the appropriate venue in which to present his arguments favoring of legislative changes concerning the statutory definition of "period of war". ORDER Evidence of a legally meritorious claim not having been submitted, the claim of basic eligibility for nonservice- connected pension benefits is denied. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a (CONTINUED ON NEXT PAGE) determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.