Citation Nr: 1328986 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 95-24 286A ) 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 (RH insurance) under 38 U.S.C.A. § 1922. REPRESENTATION Appellant represented by: [redacted] WITNESS AT HEARING ON APPEAL The Appellant's Representative ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1967 to June 1969. The appellant seeks benefits as his surviving son. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision in March 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC) that denied eligibility for RH insurance under 38 U.S.C.A. § 1922. In January 2009, the appellant's representative appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claim file. In February 2012, the Board remanded this appeal for further development. FINDINGS OF FACT 1. The Veteran was last awarded service-connection for coronary artery disease and diabetic nephropathy in a March 2010 rating decision. 2. The Veteran died in December 2010. 3. During his lifetime, the Veteran did not apply for RH insurance. 4. The Veteran was not mentally incompetent from a service-connected disability, or otherwise, at any time during his lifetime. CONCLUSION OF LAW The criteria for eligibility for Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922 have not been met. 38 U.S.C.A. § 1922 (West 2002); 38 C.F.R. § 3.353 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify Because the claim at issue is limited to statutory interpretation, statutory notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. Analysis Under 38 U.S.C.A. § 1922(a), an application for RH Insurance is considered timely if filed within two years from the date service connection for a disability is awarded and the disability is at least 10 percent disabling. The appellant does not claim, and the record does not indicate, that the Veteran applied for RH insurance during his lifetime. However, under 38 U.S.C.A. § 1922(b), a person otherwise qualified for RH insurance who did not apply for such insurance will be deemed to have applied for and been granted such insurance if he is shown by the evidence to have been mentally incompetent from a service-connected disability: (a) during any part of the two-year period from the date of service connection, (b) remained continuously so mentally incompetent until the date of death, and (c) died before appointment of a guardian or within two years after the appointment of a guardian. 38 C.F.R. § 3.353(a) defines a mentally incompetent person as one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. Moreover, rating agencies have the sole authority to make official determinations of competency and incompetency for purposes of insurance. A rating agency cannot make a determination of incompetency without a definite expression regarding the question by the responsible medical authorities, and where a reasonable doubt arises as to the Veteran's competency or incompetency, it is resolved in favor of competency. 38 C.F.R. § 3.353(b)(1),(c),(d) (2012). The appellant contends that he is entitled to RH insurance under 38 U.S.C.A. § 1922 on the basis that the Veteran was entitled to service connection for ischemic heart disease due to Agent Orange exposure, as such disorder was added to the list of presumptive conditions for Agent Orange exposed Veterans effective August 31, 2010, and that, therefore, there would have been a rating decision granting service connection within two years of his death which would have opened a window of opportunity for the Veteran to apply for RH insurance. The appellant also contends that the Veteran was mentally incompetent during the period from which service connection should have been granted for ischemic heart disease until the date of his death. The appellant specifically maintains that the Veteran's daughter was handling all of financial affairs because he was not mentally competent, and that the Veteran obtained a number of accidental insurance policies that he thought were life insurance policies that further shows that he was mentally incompetent. As a preliminary matter, the appellant has claimed that service connection should have been granted for ischemic heart disease due to Agent Orange exposure, effective August 31, 2010, and that, therefore, there would have been a rating decision granting service connection within two years of his death. However, service connection was actually granted for coronary artery disease pursuant to a March 2010 rating decision, which is within two years of his death. In September 2009, the Veteran filed a claim for entitlement to service connection for a heart disorder, to include as due to service-connected post-traumatic stress disorder (PTSD) and diabetes mellitus, as well as a claim for entitlement to service-connection for a kidney disorder, to include as due to service-connected diabetes mellitus. The RO never independently adjudicated those claims. Instead, in a March 2010 rating decision, the RO recharacterized the Veteran's service-connected diabetes mellitus as diabetes mellitus with coronary artery disease and stage IV chronic diabetic nephropathy. The RO also assigned a 100 percent rating for diabetes mellitus with coronary artery disease and stage IV chronic diabetic nephropathy at that time. The Veteran's coronary artery disease and diabetic nephropathy were not previously compensated, and the recharacterization and grant of an increased rating based on those disorders represented a new grant of service connection. The March 2010 rating decision, therefore, triggered a two year period in which the Veteran was eligible to apply for RH insurance. 38 U.S.C.A. § 1922(a). Consequently, the Board need not address the appellant's argument that service connection should have been granted for ischemic heart disease, effective August 31, 2010. It is not disputed that the Veteran did not file a claim for RH insurance during his lifetime. The appellant maintains, however, that the two year window was tolled, and extended beyond his death, because he was not competent due to his service connected disorders. 38 U.S.C.A. § 1922(b). An application for RH benefits was filed in March 2011, well within the two year window. The Veteran died in December 2010. The death certificate lists the immediate cause of death as cardiomyopathy. At the time of his death, the Veteran was service-connected for diabetes mellitus with coronary artery disease and stage IV chronic diabetic nephropathy (rated 100 percent), and for PTSD (rated 100 percent). Private and VA treatment reports of record indicate that the Veteran was treated for numerous disorders, including his service-connected diabetes mellitus with coronary artery disease and stage IV chronic diabetic nephropathy, and his service-connected PTSD, and that he was also hospitalized on multiple occasions. However, such records do not specifically indicate that the Veteran was mentally incompetent between March 2010 and the time of his death. In January 2012 lay statements, the Veteran's two sons and two daughters all indicated that one of the Veteran's daughters was in charge of paying his bills. The Veteran's children also all reported that the Veteran took out a number of accidental insurance policies that he apparently thought were life insurance policies. An April 2013 statement from the a VA physician noted that he reviewed the available pertinent evidence in all eleven volumes of the Veteran's claim file, as well as all available electronic records in the Computerized Patient Record System (CPRS). The physician discussed the Veteran's medical history, as well as the statements submitted by the Veteran's children, in detail. As to a conclusion, the physician commented that based on the evidence of record, the record reviewed, the January 2012 letters of the Veteran's children, and the medical records of his multiple hospitalizations from March 2010 to the time of his death, it was his opinion that to a reasonable degree of psychiatric certainty that the Veteran was indeed competent for VA purposes from March 2010 to the time of his death. The physician stated that the VA considered a Veteran competent for handling his financial affairs unless there was substantial evidence that showed otherwise. The physician indicated that the evidence brought forth from the appellant was that the Veteran's daughter helped him with his finances, and that the Veteran took out the incorrect life insurance policies. The physician reported that, on closer examination of the letters of the Veteran's four children, the letters indicated that the daughter primarily acted to mediate the Veteran's poor eyesight and was not making financial decisions on her own. The physician indicated that, in fact, the Veteran continued to make financial decisions. The physician stated that regarding the Veteran obtaining accidental death policies, he began taking those out following the death of his wife in 1999, and, thus, began the process of acquiring those policies during the time he had been deemed competent during a face-to-face evaluation in 2001. The physician maintained the overwhelming evidence from the medical record indicated that on numerous occasions the Veteran was judged to have the capacity to make medical decisions that directly impacted negatively on his health. It was noted that the Veteran was of sound mind to appreciate and understand those decisions. The physician stated that there was no evidence for active mental illness such as PTSD or depression at the time of his death. The physician reported that the Veteran was not taking psychiatric medications and that there was not any evidence of dementia, uremia, or other sequelae from his diabetes, coronary artery disease, and kidney disease. The physician indicated that it was more likely than not to a reasonable degree of psychiatric certainty that the Veteran was competent for VA purposes from March 2010 to the time of his death. The Veteran did not file a claim for RH insurance during his lifetime. Therefore, there is no basis to establish entitlement to RH insurance under 38 U.S.C.A. § 1922(a). Additionally, the Board notes that medical evidence fails to indicate that the Veteran was mentally incompetent at any point during the period from March 2010 (when service connection was, in effect, granted for coronary artery disease and stage IV chronic diabetic nephropathy) until he died in December 2010. A VA physician, after a review of the Veteran's claim file, specifically found that it was more likely than not to a reasonable degree of psychiatric certainty that the Veteran was competent for VA purposes from March 2010 to the time of his death. The evidence reflects that the Veteran was not mentally incompetent from a service-connected disability or otherwise. Accordingly, the Veteran may not be deemed to have applied for and been granted RH insurance. Consequently, his failure to apply for RH insurance rendered him, and renders the appellant, ineligible for RH insurance. Accordingly, although the Board is sympathetic to the appellant in this matter, he is ineligible for Service Disabled Veterans Insurance (RH insurance) under 38 U.S.C.A. § 1922. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Eligibility for Service Disabled Veterans Insurance (RH insurance) under 38 U.S.C.A. § 1922, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs