Citation Nr: 0414424 Decision Date: 06/04/04 Archive Date: 06/10/04 DOCKET NO. 02-15 092A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Eligibility for Service Disabled Veterans' Insurance (SDVI). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Crowley, Counsel INTRODUCTION The veteran served on active duty from March 1964 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) from an April 2002 decision by the Department of Veterans Affairs Regional Office and Insurance Center (ROIC). In that decision the ROIC determined that the veteran was not eligible for SDVI because he did not meet the "good health" standard. The veteran perfected an appeal of that decision. A hearing was held before the undersigned, sitting at the VA Regional Office in Des Moines, Iowa, in March 2003. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran's service-connected disabilities consist of post-traumatic stress disorder (PTSD), rated as 70 percent disabling; diabetes mellitus, rated at 40 percent; scar, residual of a gunshot wound, rated at 10 percent; peripheral neuropathy of the right and left lower extremities, each rated at 10 percent; and scars from a skin infection, rated as non-compensable. In addition, the veteran has been found to be totally disabled based on individual unemployability. 2. In addition to his service-connected disabilities, the veteran is morbidly obese, being six feet, one inch in height and weighing from 320 to 346 pounds. He was born in March 1947. 3. The veteran also suffers from a chronic low back disorder, described in the medical records as productive of severe disability. 4. The veteran's non-service connected disabilities preclude a finding of good health, as defined by the applicable VA criteria. CONCLUSION OF LAW The criteria for eligibility for SDVI are not met. 38 U.S.C.A. § 1922(a) (West 2002); 38 C.F.R. § 8.0 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is eligible for SDVI because his non-service connected disabilities do not render him unemployable, he cannot obtain insurance in the private sector, and he would be in good health except for his service-connected disabilities. Development of the Claim The Board has considered the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) (codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. In August 2001 VA issued regulations to implement the provisions of the VCAA, which are now codified at 38 C.F.R. §3.159 (2003). The duty to notify and to assist provisions of the VCAA are generally applicable to all claims filed on or after November 9, 2000, the date of enactment. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The statute specifically excludes, however, claims for government life insurance from the requirement that VA inform the claimant of the evidence necessary to substantiate a claim. See 38 U.S.C.A. § 5103(b)(2) (West 2002). VA does, however, have a duty to assist the veteran in developing the evidence in support of his claim for SDVI. The statutes and regulation provide that VA will make reasonable efforts to help the veteran obtain evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VA's duty includes making efforts to obtain his service medical records, if relevant to the claim; other relevant records pertaining to service; VA medical records; and any other relevant records held by any other source. The veteran is also required to provide the information necessary to obtain this evidence, including authorizations for the release of medical records. 38 C.F.R. § 3.159(c) (2003). The ROIC has obtained the VA and private treatment records that are relevant to the issue being considered. The veteran provided testimony before the undersigned in March 2003. The veteran and his representative have been accorded the opportunity to present evidence and argument, and have done so. The veteran has not indicated the existence of any other evidence that is relevant to his appeal. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim and that no reasonable possibility exists that any further assistance would aid him in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Relevant Laws and Regulations An individual is eligible for SDVI if (a) he was released from military service under honorable conditions after April 25, 1951; (b) he is found by the Secretary to be suffering from a disability for which compensation would be payable if 10 percent or more disabling; (c) except for the service- connected disability, he would be insurable according to the standards of good health established by the Secretary; and (d) he makes application for SDVI in writing within two years from the date service connection is granted. 38 U.S.C.A. § 1922(a) (West 2002). In order to be eligible for SDVI, the veteran must be in "good health," except for any service-connected disabilities. The term "good health" means that the veteran is, from clinical or other evidence, free from any condition that would tend to weaken normal physical or mental functions, or shorten life. 38 C.F.R. § 8.0 (2003). The Secretary has promulgated Veterans Benefits Manual M29-1, Part V, Insurance Operations Underwriting Procedures (M29-1), which contains the standards for evaluating applications for the insurance programs administered by VA. Analysis The documents in the claims file show that the veteran has the following service-connected disabilities: PTSD, rated as 70 percent disabling; diabetes mellitus, rated at 40 percent; scar, residual of a gunshot wound, rated at 10 percent; peripheral neuropathy of the right and left lower extremities, each rated at 10 percent; and scars from a skin infection, rated as non-compensable. In addition, the veteran has been found to be totally disabled based on individual unemployability. He does, therefore, have multiple disabilities for which compensation is payable, and he timely applied for SDVI. The issue under consideration is whether, except for the service-connected disabilities, he is in "good health" as defined in the VA underwriting standards. The Board notes that the ROIC initially denied eligibility for SDVI by determining that the veteran was totally disabled due to his non-service connected disabilities (primarily a low back disorder). According to the underwriting standards, even if the veteran has been determined to be totally disabled due to his service-connected disabilities, he is not eligible for SDVI if his non-service connected disabilities would also render him totally disabled. M29-1, Part V, Chapter 1, Paragraph 1.12(i). The veteran has argued that his non-service connected disabilities are not totally disabling, in that he would be able to maintain employment if not for his service-connected disabilities. Regardless of whether his non-service connected disabilities are totally disabling, however, analysis of those disabilities in light of the appropriate underwriting criteria show that they are of sufficient severity to make him ineligible for SDVI. "Good health" is determined by a system of numerical ratings used as a means of classifying or grouping applicants according to their state of health. Mortality debits for existing impairments are added and credits for favorable features are subtracted. The total of these numerically expressed debits and credits is the mortality ratio of the risk. This process is called "underwriting," and it is done by the ROIC in a manner similar to that used in the commercial insurance industry, using their underwriting charts. An individual is eligible for SDVI if the non- service connected disability does not exceed a 300 percent mortality ratio. M29-1, Part V, Chapter 1, Paragraph 1.12(d)(1). The evidence shows that the veteran was born in March 1947 (thus his "age for insurance purposes" at the time of the November 2001 application was 54 and 8/12, or 55 years). The evidence also shows that he is six feet, one inch tall and, since his claim was initiated, his weight fluctuated between a low of 320 pounds and a high of 346 pounds. The underwriting criteria includes charts with assignable debits for a variety of disabilities and characteristics, including body build. According to the chart for body build, debits are assigned based on the individuals age, height, and weight. An individual over age 50, who is six feet, one inch tall and weighs 328 pounds, is assigned 250 debits. If the veteran weighed closer to 349 pounds, he would be assigned 300 debits. If he was closer to 307 pounds, he would be assigned 200 debits. Because his average weight (333 pounds) is closer to the 328 pound cut-off, the Board finds that his age and body build warrant the 250 debits. M29-1, Part V. In addition to the debits assigned for age and body build, the medical evidence shows that the veteran has a long history of a low back disorder. He underwent a lumbar laminectomy in December 1990. Although he returned to work after that surgery, his back condition began to deteriorate in 1998. The evidence shows that he stopped working in April 1999 due to back pain. He was found to be eligible for disability benefits from the Social Security Administration with an onset date in April 1999 due, at least in part, to his low back disability. He re-injured his back in July 1999, which resulted in a compression fracture of the L2 vertebral body and a disc herniation at L1-L2. He continued to receive treatment for chronic low back pain which, following the July 1999 injury, was referred to has mechanical low back pain or a residual of the compression fracture. In August 1999 his treating physician characterized the back pain as severe. He underwent a VA physical therapy evaluation in June 2000, at which time he reported being in constant pain that prevented him from doing any exercise. He received treatment through a pain clinic, but no treatment was successful in alleviating his pain. He walked with an antalgic gait, and constantly changed his weight-bearing position. The physical therapist was unable to conduct a physical examination due to his back pain. A VA neurological evaluation in August 2001 resulted in the conclusion that he had moderate to severe pain, to the extent that he was unable to walk without leaning on something, and he had difficulty rising from a seated position. Examination revealed bilateral absent ankle jerks. A VA psychiatric assessment in March 2002 shows that he was in chronic pain from his back problems. According to the underwriting criteria, a severe lumbosacral sprain is assigned 100 debits. The symptomatic residuals of a spine injury, with muscular weakness, marked restriction of activity is also assigned 100 debits. In addition, severe symptoms of an unoperated intervertebral disc rupture (he has had no surgery on the disc herniation at L1-L2) are assigned 100 debits. Although the veteran has additional non-service connected disabilities, which have not yet been considered in determining his eligibility for SDVI, the debits assignable for his body build (250) and his low back disorder (100, for a total of 350) exceed the 300 limit allowed for eligibility to be found. The veteran argues that he should be eligible for SDVI because his service-connected disabilities render him uninsurable in the private sector. He has apparently not considered whether his non-service connected disabilities would also preclude him from finding insurance in the private sector. Regardless, whether he can obtain insurance in the private sector is not a criterion to be considered in determining his eligibility of SDVI; that determination is made based on the stated regulatory criteria, which the veteran does not meet. The veteran has also asserted that, but for his service- connected disabilities, he would be in good health. That assertion is refuted by the medical evidence, which clearly documents the severity of his non-service connected disabilities. For the reasons shown above the Board finds that the veteran is not in "good health," except for any service-connected disabilities, and that the criteria for eligibility for SDVI are not met. The preponderance of the evidence shows, therefore, that the veteran is not eligible for SDVI. ORDER The claim of entitlement to SDVI is denied. ____________________________________________ N. W. FABIAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2