Citation Nr: 9816759 Decision Date: 05/29/98 Archive Date: 06/03/98 DOCKET NO. 95-35 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance policy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellants and two Department of Veterans Affairs employees ATTORNEY FOR THE BOARD Neil Reiter, Counsel INTRODUCTION The veteran, who served on active duty from May 1941 to October 1945, died on December [redacted], 1992. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a September 1993 determination by the agency of original jurisdiction (AOJ) which determined that the proceeds of the veteran's National Service Life Insurance policy were payable to [redacted], his daughter. The veteran's sister, [redacted], and his companion, [redacted], have appealed this determination. This case was remanded by the Board in August 1997 because the appellants, [redacted] and [redacted], requested an opportunity to present testimony relating to the present issue before a traveling Member of the Board of Veterans' Appeals. Subsequently, in October 1997 a video conference hearing before the Board from Washington, D.C. was held. CONTENTIONS ON APPEAL The appellant contends, in essence, that the beneficiary designation signed on November 30, 1992, designating [redacted], the veteran's daughter, as the sole principal beneficiary of his National Service Life Insurance policy contained a forged signature of the veteran. She maintains, in essence, that the veteran was angry at his daughter, [redacted], for withholding dividend checks from him, that he did not want to leave the proceeds of this policy to her, and that he did not sign the beneficiary designation on November 30, 1992. She contends that the veteran did go into the Department of Veterans Affairs (VA) Regional Office in August 1992, and again in December 1992, and executed beneficiary designations designating the appellants as coequal principal beneficiaries of the insurance policy in dispute. She contends, further, that the VA benefits counselor who helped the veteran fill out the change of beneficiary form in December 1992 indicated to the veteran that he would send the form to the AOJ. She contends that it is not the appellant’s fault that the VA lost the beneficiary change that the veteran executed in December 1992, and that the VA should pay the appellants the proceeds of the National Service Life Insurance policy. The appellee, [redacted], has made no specific contentions, and relies on the evidence of record, indicating that she is the veteran's last-named beneficiary of record for the National Service Life Insurance policy. 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 files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant is not entitled to the proceeds of the veteran's National Service Life Insurance policy. FINDINGS OF FACT 1. The veteran had a National Service Life Insurance policy in the face amount of $8,000 in force at the time of his death. 2. The veteran designated [redacted], his daughter, as the sole principal beneficiary of his insurance policy in beneficiary designation signed by him in August 1982 and November 1988. 3. A beneficiary designation dated on November 30, 1992 was received naming [redacted] as the sole principal beneficiary of his National Service Life Insurance policy. This form was purportedly signed by the veteran. 4. A VA handwriting analyst could offer no definitive opinion whether the veteran authored the signature on the beneficiary designation form dated on November 30, 1992. 5. The present record does not demonstrate that the veteran took affirmative action that would evidence his intent to change the beneficiary of his National Service Life Insurance policy from [redacted] to the appellant. CONCLUSION OF LAW The appellant is not the last-named beneficiary on the veteran's National Service Life Insurance policy, and thus, she is not entitled to the proceeds of such policy. 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. §§ 8.46, 8.47 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran had a National Service Life Insurance policy in the face amount of $8,000 in force for many years prior to his death. The veteran initially named his mother as principal beneficiary named in the policy . On a designation of beneficiary form dated in August 1982, the veteran named [redacted], his daughter, as the sole principal beneficiary of his National Service Life Insurance policy. No contingent beneficiary was named. On a beneficiary designation dated in November 1988, the veteran again named [redacted] as the sole principal beneficiary of this insurance policy. He named his wife, and his sister, [redacted], as contingent beneficiaries. On a beneficiary designation dated on November 30, 1992, it was indicated that [redacted] was the veteran's sole principal beneficiary. It was indicated that the veteran's wife, [redacted] [redacted], was the sole contingent beneficiary. This form purportedly contained the veteran's signature and was not witnessed. This beneficiary designation dated on November 30, 1992 was the only beneficiary designation received by the AOJ in 1992. After the veteran's death, claims for the proceeds of the veteran's National Service Life Insurance policy were received from [redacted], [redacted], and [redacted]. The amount of the insurance payable, with accrued dividends, was $8,327.36. The appellants provided a statement that in August 1992 the veteran, his sister, and [redacted], his companion, went to see a representative of the VA to see why his August 1992 check had been reduced. He was informed that his dividend check had been sent and cashed in February 1992, and the veteran commented that he had never received this check. He requested that his address be changed from the address of record, [redacted] to [redacted], and he requested that his designation of beneficiary for his insurance policy be changed to [redacted], his sister, and [redacted], his companion. The appellants reported that the veteran returned to the VA regional office on December 15, 1992, and spoke to a VA Veterans Benefits Counselor (hereinafter VBC). They indicated that the veteran signed a designation of beneficiary form in the presence of the representative, naming them as the sole principal beneficiaries of his National Service Life Insurance policy. They stated that the VBC filled out the form for the veteran to sign, and that the VBC placed the form in his mailing tray. They also stated that they were protesting the signature on the beneficiary form dated on November 30, 1992. In subsequent letters, they contended that the veteran could not have signed the beneficiary form on November 30, 1992, a Monday, because the veteran had dialysis treatments on Monday, Wednesday, and Friday. They stated that they brought the veteran to such dialysis treatment, and that they checked with the people who provided the treatment, who stated that the veteran did not sign any forms while he was receiving such treatment in November and December 1992. A report of contact dated in May 1993 indicates that the VBC did recall the veteran coming into his office on December 15, 1992, and filling out a beneficiary designation for his National Service Life Insurance policy. The VBC reported that he did not have a copy of the alleged designation, that he assisted the veteran in filling out the form, and that he gave the form to the veteran to mail. A misfile search by the AOJ was negative and did not find any beneficiary designations for the insurance policy dated in August 1992 or December 1992. A review of the veteran's claims file does not show any beneficiary form for the veteran's National Service Life Insurance policy. It is noted that the veteran was receiving improved disability pension benefits for many years, and that the last address of record for the veteran was [redacted], [redacted], [redacted]. The beneficiary designation form dated on November 30, 1992, was sent to the VA Forensic Laboratory of the Office of Inspector General of the VA for handwriting analysis. A forensic document analyst compared the document dated on November 30, 1992, to various writings in the veteran's files, and concluded that there appeared to be several different writers signing the name of the veteran in both the insurance and claims folders during the years. The forensic document analyst indicated that no opinion could be rendered as to who wrote the veteran's signature on the document dated on November 30, 1992. It was noted that the signature had been rewritten in portions and also appeared to have been written slowly, which prevented the examiner from identifying one of the writers as having produced the questioned signature. It did appear that the person who completed the printed material on a claim for one sum payment bearing the signature of [redacted] completed the printed material found on the beneficiary designation dated on November 30, 1992. At a hearing at the regional office in February 1995, the appellants testified that the veteran was angry with his daughter for not sending him his insurance dividend check. They stated that he decided to change the beneficiary of his National Service Life Insurance policy to name them as the sole principal beneficiaries on this policy. They testified that the veteran did sign forms in August 1992 changing the beneficiary, and definitely signed the form changing the beneficiary when he was at the regional office in December 1992. They stated that both times the forms were left in the regional office to be sent to the insurance center. The VBC testified that he remembered the veteran signing his name to a change of beneficiary form. He stated that he did not remember whom the veteran listed as beneficiary on the form. He stated that he was "pretty sure" that he kept the form in his mailbox to be sent to the insurance center. At a hearing at the regional office in March 1996, the appellants repeated that the veteran specifically went into the regional office in December 1992 to change the beneficiary of his National Service Life Insurance policy, that he was assisted by the VBC, and that the VBC kept the form to mail to the insurance center. The VBC again testified that he remembered the veteran filling out a beneficiary designation form, and that the veteran did sign the form. He indicated that the veteran was not in good shape, and that he put the form in his "IN" box for forwarding to the insurance center. Another VA employee testified that she remembers the veteran and one of the appellants being at the regional office in December 1992, and that one of the appellants indicated that they were there because the veteran wanted to take care of some papers to ensure that [redacted] was cared for after his death. She stated that there was no mention of any insurance policy, or life insurance, specifically. A report of contact dated in September 1997 indicates that the veteran's sister, [redacted], was contacted by the AOJ. [redacted] stated that as far as she knew the veteran did not leave a will, or any other insurance policies in force at the time of his death. She stated that the veteran's mother had always been the beneficiary of the veteran's National Service Life Insurance policy until he married, when he named his daughter as the beneficiary. She indicated that when the veteran discovered that the daughter was cashing his dividend checks without giving him the money, he decided to name her and his friend, [redacted], as the beneficiaries of the policy because they had treated him honestly. In another report of contact dated in September 1997, the VBC related that the veteran and his friend, [redacted], came into the office on September 15, 1992, with the veteran in a wheelchair. The veteran indicated that he wanted to complete a beneficiary designation, and that he assisted the veteran in completing the form. He stated that he then gave the form to the veteran to mail. He reported that his normal procedure was to give any beneficiary form back to a veteran to mail, that he never kept any forms in his office, and that his first statement in May 1993 was the correct one. He further reported that he did not remember who was named as beneficiary in the beneficiary designation in December 1992. In October 1997, the appellants testified at a video conference hearing before the Board in Washington, D.C. They repeated that the veteran did sign a beneficiary form in December 1992, and that the VBC did indicate that he would mail the form to the insurance center. II. Analysis By the terms of the insurance contract and by law, the proceeds of the veteran's National Service Life Insurance policy belong to the last-named beneficiary of record. The insured has the right to designate any person as the beneficiary of the policy, or to change the beneficiary at any time without the consent or knowledge of the prior beneficiary. 38 U.S.C.A. § 1917. The perceived fairness, equity, or justice of a veteran's choice is not part of the criteria upon which to decide who may be entitled to the proceeds of the policy. The last beneficiary designation of record is a beneficiary form dated on November 30, 1992, designating [redacted] as the sole principal beneficiary of the veteran's National Service Life Insurance policy. The appellant has indicated that the veteran did not sign this form, that it was filled out by somebody else, and that the veteran's signature was forged. A forensic document analyst has indicated that no opinion can be rendered as to who wrote the veteran's signature on this form. There is certainly some question whether the veteran did sign this form. However, if the VA rejects this form dated on November 30, 1992, then the previous designation of record would control the question as to who was entitled to be considered the veteran's beneficiary of his National Service Life Insurance policy. In fact, the veteran signed beneficiary forms in August 1982 and November 1988 designating [redacted] as the sole principal beneficiary of his National Service Life Insurance policy. The appellant does not maintain that these beneficiary designations are invalid because of any problem with the veteran's signature, or other problems that would make such designations invalid. These beneficiary designations are, in fact, valid, and provide that [redacted] is the last-named beneficiary of record and entitled to the proceeds of the veteran's National Service Life Insurance policy. Without making any decision relating to the beneficiary designation of November 30, 1992, the Board finds that [redacted] is the last- named beneficiary of record on the veteran's National Service Life Insurance policy. The appellant maintains that [redacted] is not the last-named beneficiary of record on the policy in dispute, as the veteran did sign a form in August 1992, and again in December 1992, naming the appellants as the sole principal beneficiaries on the policy in dispute. However, the record does not contain any evidence of the beneficiary designations allegedly signed by the veteran in August 1992 or December 1992. The appellant has not produced any copy of such form, and a search of VA records has not produced the form naming the two appellants as beneficiaries of the veteran's National Service Life Insurance policy. Various Federal court cases indicate that the regulatory requirements that a change of beneficiary, to be effective, must be made in writing, signed by the insured, and forwarded to the VA by the insured or his agent are regulatory requirements adopted for the benefit of the United States and are not adapted for the protection of the beneficiary. The Federal courts have held that, with respect to the regulations pertaining to a change of beneficiary, the courts will brush aside all legal technicalities in an effort to effectuate the manifest intent of the insured. United States v. Pahmer, 238 F. 2d 431 (2nd. Cir. 1956). The Courts have held that an intent to change the beneficiary must be followed by positive action on the part of the insured evidencing an exercise of the right to change the beneficiary. Collins v. United States, 161 F. 2d 64 (10th Cir. 1947). It is the generally accepted rule that the burden of proof is upon the one who asserts the change of beneficiary to sustain such change by a preponderance of the evidence. Berk v. United States, 294 F. Supp. 578 (E.D.N.Y. 1969). In this case, there is evidence that the veteran did go into the regional office in December 1992, some days before his death, and sign a beneficiary designation relating to his National Service Life Insurance policy. This form is missing, and the appellant has not found any copy of it, and no form has been found in the VA files. The appellant has maintained that the VBC helped fill out this form, kept the form, and sent it to the VA insurance center. However, the VBC has indicated that it is his policy to give the form back to a veteran to mail. He testified at a hearing that he did keep the form, but on his initial statement, and on his last statement, the report of contact in September 1997, he indicated that his initial statement was correct, that he handed the form back to the veteran to mail. Thus, the form was not delivered to the VA. In addition, the VBC stated that he did not know who the beneficiary was on this form. While the veteran may have expressed an intent to name the appellants as his beneficiary, there is no direct witness, and no form, indicating that he, in fact, did name the appellants as sole principal beneficiaries of his insurance policy. The present question then becomes whether the veteran took some action to further his alleged intention to change the beneficiary from his daughter to the appellants. The courts have held that a change of beneficiary can be accepted even though the change is not received by the VA during the lifetime of the insured as long as the manifest intent of the insured to change the beneficiary is clear. The change of beneficiary form can be delivered after the veteran's death provided the insured, before his death, set in motion steps for its delivery, which would manifest his intent that it would be so delivered. Widney v. United States, 178 F. 2d. 880 (1949). In this case, the VA employee stated that he gave the form back to the veteran in December 1992. It was therefore incumbent upon the veteran to send the form to the AOJ, or to ensure its delivery. The question then remains why the veteran did not send the form to the AOJ to change the beneficiary, or provide for it to be sent to the AOJ. There is no readily available answer to this question, and, therefore, there must be a question whether the veteran, in fact, truly intended to change the beneficiary from his daughter to the appellants. The fact that the beneficiary designation form was not found in his effects, and was not found by the VA, could indicate that the veteran did not intend to change the beneficiary, and may have changed his mind. In any event, it serves no purpose to speculate about the reason that the veteran did not send the change of beneficiary form to the VA. In fact, the specific form signed by the veteran in front of the VBC is not of record. There is no witness to indicate that the veteran, in fact, designated the appellant as the beneficiary of his National Service Life Insurance policy. Without the beneficiary designation, and no reason why the veteran failed to provide for its delivery to the VA, there is no evidence from independent sources of the veteran's intention to name the appellant as the beneficiary of the insurance policy, and no evidence that he took the necessary affirmative action to effectuate his intent. See Berk v. United States, supra. The last-named beneficiary of the veteran's National Service Life Insurance policy is the veteran's daughter, [redacted]. She is entitled to the proceeds of the veteran's policy. The present record does not demonstrate that the veteran took affirmative action that would evidence his intent to change the beneficiary of his National Service Life Insurance policy from [redacted] to the appellant. ORDER As the appellant is not the last-named principal beneficiary on the veteran's National Service Life Insurance policy, she is not entitled to the proceeds of the policy. Accordingly, the appeal is denied. HILARY L. GOODMAN Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 which 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, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -