Citation Nr: 1327064 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-23 446A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Eligibility for Service-Disabled Veterans Insurance (RH) under the provisions of 38 U.S.C.A. § 1922. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. The case was subsequently transferred to the RO in Boston, Massachusetts. The Veteran testified from the RO at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ) in January 2013. The Virtual VA and VBMS folders have been reviewed. FINDINGS OF FACT 1. The RO granted service connection for chronic lymphocytic leukemia (CLL) in December 2003 and the Veteran was notified of this decision by letter dated on December 17, 2003; service connection has not been established for any additional disability since that time. 2. The Veteran submitted an application for Service-Disabled Veterans Insurance (RH) in September 2007. CONCLUSION OF LAW The claim for eligibility for Service-Disabled Veterans Insurance (RH) must be denied by operation of law. 38 U.S.C.A. § 1922 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to VCAA, VA has a duty to notify and to assist the claimant. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than evaluation of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In this case, the appeal involves the application of the provisions of 38 U.S.C.A. § 1922 regarding the time period for submitting an application for the claimed insurance benefits. VA does not have a duty, therefore, to notify the Veteran of the evidence needed to substantiate his claim, or to assist him in obtaining that evidence, because no reasonable possibility exists that any assistance would aid him in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Regardless, the Board notes that in a June 2009 letter, the Veteran was advised of the evidentiary requirements for substantiating a claim for Service-Disabled Veterans Insurance (RH). The Veteran was provided the pertinent law in the July 2009 Statement of the Case and throughout the course of the appeal, was notified of the basis for denial. Specifically, that his application was not timely received. The Veteran submitted evidence in support of his claim and provided testimony at a videoconference hearing. The VLJ's actions at the hearing supplement VCAA and any additional hearing-related duties. Factual Background In December 2003, the RO granted service connection for CLL and assigned a 30 percent evaluation, effective on February 12, 2003. The Veteran was notified of this decision by VA in a letter dated on December 17, 2003. The letter stated that "[w]e enclosed a VA Form 21-8764, 'Disability Compensation Award Attachment - Important Information,' which explained certain factors concerning your benefits." VA Form 21-8764 (October 2002) would have contained information related to VA benefits and addressed how a veteran could receive government life insurance. In July 2006, the Veteran submitted a claim for increase. In June 2007, the RO assigned a 100 percent rating for the service-connected CLL beginning on February 12, 2003. In September 2007, the Veteran submitted VA Form 29-4364, Application for Service-Disabled Veterans Insurance. In a September 2007 letter, the Veteran explained that the June 2007 notification letter stated that he might be eligible for life insurance and that the premiums might be waived. He stated that he called the 1-800 number and was told that the application had to be received two years from the date of being notified of a service-connected disability. The Veteran submitted a copy of a December 2003 letter from his service organization that stated that if he was eligible for VA life insurance benefits, he would receive a separate letter from VA's insurance division. The Veteran stated that, because he never received any letter, he did not think he was eligible for the insurance benefit. In October 2007, the ROIC denied the Veteran's claim for Service-Disabled Veterans Insurance (RH) on the basis that his application was received after the two-year limit. In his October 2008 Notice of Disagreement, the Veteran argued that the RO failed to provide the appropriate forms when he was notified of the initial grant of service connection. In June 2009, VA advised the Veteran that he was misinformed by his service organization and that the Insurance Center did not send out a letter and application. Rather, the current procedure was noted to be that a letter was sent from the RO having jurisdiction of his claims folder informing him of his eligibility for life insurance. Because the letter was computer-generated no file copy was placed in the claims folder. It was further noted that VA has used electronic media and print media to inform Veterans of this program. At the January 2013 hearing, the Veteran testified that his official VA notification letter never stated anything about insurance and that no forms were attached. He further testified that he never received any letter from the insurance division and that he did not think he was eligible. The Veteran's spouse testified that they would have applied for life insurance in 2003 if they would have known that he was eligible. Analysis A veteran is eligible for Service-Disabled Veterans Insurance (RH) if he was released from active service on other than dishonorable conditions on or after April 25, 1951 and was found by VA to have a service-connected disability rated at 10 percent or more. The Veteran must be otherwise in good health and insurable if not for the service-connected disability. The Veteran must apply for the insurance within two years from the date that service connection is determined by VA. 38 U.S.C.A. § 1922. If the Veteran is shown by satisfactory evidence to have been mentally incompetent during any part of the two-year period, the application for insurance may be filed within two years after a guardian is appointed or within two years after the removal of such disability, whichever is the earlier date. Id. On review, the Veteran's only service-connected disability is CLL, for which the RO granted service connection in December 2003. Although the Veteran submitted a claim for increase, which was subsequently granted in June 2007, this decision did not result in the grant of service connection for any additional disabilities. The facts are clear in that the Veteran did not submit his application until September 2007. However, he asserts that he was not informed of any potential eligibility until the June 2007 rating. He essentially contends that his two-year eligibility period should not start until he received the appropriate notice. In discussing whether notice of potential eligibility (computer-generated or otherwise) was received, the Board notes that VA is not responsible for the information or assistance provided to the Veteran by a service organization. In Harvey v. Gober, 14 Vet. App. 137 (2000) (vacated for VCAA consideration), the Court found that the presumption of regularity applied to find that VA had properly notified the Veteran of his eligibility for Service-Disabled Veterans Insurance after the grant of service connection and, as such, had done so in the normal course of business and that his assertion of not having received such notice did not rise to the level of the "clear evidence" necessary to rebut the presumption. The Board further notes that VA Form 21-8764, which addressed government life insurance benefits, was clearly referenced in the December 2003 notification letter and listed as an enclosure. The Board has considered the Veteran's statements that the December 2003 notification letter did not contain any insurance-related information or forms, but does not find this assertion to be probative in that VA would have routinely provided notice as to his eligibility to receive additional benefits based on the initial grant of service connection in the course of business. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) ("The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their duties.") Thus, to the extent that he now asserts receiving no timely notice of his eligibility to receive insurance benefits, the Board finds that his statements alone are not sufficient to override the statutory mandate that an application for Service-Disabled Veterans Insurance be filed within two years of the grant of service connection in this case. In summary, service connection was established for CLL in December 2003. The Veteran had two years from that date to submit an application for Service-Disabled Veterans Insurance (RH), but did not submit an application until September 2007. The evidence of record does not indicate that he was mentally incompetent between December 2003 and September 2007, nor does he contend as such. The Board sympathizes with the Veteran. Given these facts, however, the application for Service-Disabled Veterans Insurance (RH) was not timely filed and eligibility for this benefit must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim for eligibility for Service-Disabled Veterans Insurance (RH) under the provisions of 38 U.S.C.A. § 1922 is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs