Citation Nr: 1330681	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO. 11-120 10A	)	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 under 38 U.S.C.A § 1922(a), to include whether the application was timely received.


REPRESENTATION

Appellant-guardian represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Finn, S., Counsel



INTRODUCTION

The Veteran served on active duty from November 1952 to January 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision of a Regional Office and Insurance Center (IC) of the Department of Veterans Affairs (VA), which denied the guardian's claim, made on behalf of the Veteran. The appellant-guardian filed a timely notice of disagreement, commencing this appeal.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. In January 1954, the Veteran was granted service connection for schizophrenia.

2. An April 1956 rating decision found the Veteran incompetent from January 18, 1956.

3. A November 1956 rating decision found the Veteran incompetent from January 18, 1956 to September 6, 1956 and competent from September 7, 1956.

4. In a March 1957 rating decision, the Veteran was found to be mentally incompetent to handle his financial affairs.


5. The Veteran's brother, [redacted], was appointed guardian of the Veteran in June 1959.

6. In April 1965, the Veteran's guardian was notified that the Veteran may be eligible for National Service Life Insurance and that application must be received by the Veterans Administration no later than May 2, 1966.

7. The Veteran's application for RH insurance was received in June 2010, and not within the one year of the VA award of service connection or within one year of the legislative limited reopening for RH insurance applications in 1964.

8.  No relevant notices to the Veteran or his guardian were returned as undelivered.

9.  An equitable basis for tolling of the time limit for applying for RH insurance has not been presented.


CONCLUSION OF LAW

The Veteran's application having been submitted untimely, he is ineligible for Service Disabled Veterans' Insurance under 38 U.S.C.A § 1922(a). 38 U.S.C.A. § 1922 (West 2002 & Supp. 2013); 38 C.F.R. § 8.0 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

The VCAA is not applicable in the instant case. The provisions of 38 U.S.C.A. § 1922 and 38 C.F.R. § 8.0 dictate the outcome of this case. Where the law is dispositive and where there is no reasonable possibility that any assistance would aid in substantiating a claim on appeal, the VCAA is not for application. See Wensch v. Principi, 15 Vet. App. 362 (2001); Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc); Sabonis v. Brown, 6 Vet. App. 426 (1994). See also Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), (holding that the VCAA was inapplicable to a matter of pure statutory interpretation).

Here, the Veteran contends either that he was not notified of the filing requirements for Service Disabled Veterans' Insurance at the time of the grant of service connection or that equitable tolling is in order due to mental impairment at that time. There is no statutory or regulatory requirement to notify the Veteran of eligibility to file a claim for RH insurance with the notice of grant of service connection for a disability. 38 U.S.C.A. § 1922(a) (West 2002 & Supp. 2013); 38 C.F.R. § 8.0 (2013). In addition, as addressed in the merits-based discussion, below, the Veteran is presumed to have received, upon the grant of service connection for schizophrenia with a compensable rating assigned, appropriate notice of his eligibility for RH insurance, and the time limits for filing. VA Benefits Procedures Manual, M29-1, Part I, 14.13 (procedures governing notice of RH entitlement); Ashley v. Derwinski, 2 Vet. App. 307 (1992) (presumption of regularity in government discharge of administrative duties).

Merits of the Claim

A Veteran may be entitled to RH insurance under 38 U.S.C.A. § 1922(a) when it is determined that he has a compensable service-connected disability and he applies in writing for such insurance within the applicable statutory period.

In order to be eligible for RH insurance, the Veteran must be in "good health," excepting any service-connected disabilities. The law requires that VA establish standards of good health. 38 U.S.C.A. § 1922(a). The term "good health" means that the applicant 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(a) (2013).

VA has promulgated Veterans Benefits Manual M29-1, Part V, Insurance Operations Underwriting Procedures (M29-1), which contain guidelines for evaluating applications for the various insurance programs administered by VA. "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. Applications for RH insurance will be acceptable if nonservice-connected disabilities do not exceed 300 percent mortality. See M29-1, Part V, Chapter 1, Advanced Change 1-77, Paragraph 1.12(d)(1); 38 C.F.R. § 8.0(b).

However, should an eligible Veteran desire this benefit, he or she bears the obligation to file a timely application for the insurance.

An exception to the statutory deadline exists in cases where the Veteran is found to be incompetent during the application period.
If such person is shown by evidence to have been mentally incompetent during any part of the period, application for insurance may be filed within a year after a guardian is appointed or within one year after the removal of such disability. 38 U.S.C.A. 1922(a). (The period of eligibility was increased from 1 to 2 years by Public Law 102-86, but was effective as to persons who, on or after September 1, 1991, are found by the VA to be eligible for RH insurance).
The Veteran was granted service connection for schizophrenic reaction, effective January 13, 1954, qualifying him to apply for RH insurance under 38 U.S.C.A. § 1922. He was notified of the decision by a letter dated October 8, 1954. The Veteran had one year, until October 8, 1955, to submit a timely RH application. In this case, the Veteran did not apply for RH insurance within the one year time period. He was not declared incompetent during this statutory period. 
He was declared incompetent to handle his financial affairs since January 18, 1956 and his brother was appointed as his guardian in June 1959. (See April 1956 rating decision).
The Veteran's guardian was notified on April 28, 1965 that the Veteran may be eligible under Public Law 88-664 for National Service Life Insurance up to and including $10,000. The letter stated, in part, that the insurance could be granted to the Veteran only upon application of a court-appointed fiduciary and his estate must be designated beneficiary. It also stated that the application must be received by the Veteran's Administration not later than May 2, 1966. It stated that the date was important [redacted] from VA Chief Attorney dated April 28, 1965). 
Thus, he is not eligible for RH insurance because the application was not received in a timely manner, within one year of the period of notice to him with a deadline of May 2, 1966.
Thus, the impetus fell on the appellant, as the Veteran's guardian, to make a timely application for RH insurance with one year of appointment or when the legislation in 1964 allowed for a limited reopening for application for RH insurance; this was not accomplished prior to the enacted legislation providing for a limited reopening of National Service Life Insurance with a statutory deadline of May 2, 1966.
The guardian has argued that he was not informed that the Veteran was eligible to apply for RH insurance and that the VA had a duty to inform the Veteran, or the Veteran's guardian, of his eligibility for this benefit. The guardian was informed of the Veteran's eligibility on April 28, 1965 and given a deadline of May 2, 1966 to apply. However, the guardian asserts he never received this letter. (See January 2011 Written Statement from John J. Fish, Jr.). 
The law does not require the VA to provide notice of eligibility for insurance benefits, and such lack of notice does not toll the statutory application period. 38 U.S.C.A. § 1922; see Hill v. Derwinski, 2 Vet. App. 451 (1991). 
The VA makes every effort to advise Veterans of their potential eligibility for benefits. However, the vast array of benefits makes it impossible for the VA to inform every Veteran or person of every possible potential benefit for which he or she might be entitled. Ultimately, it is the responsibility of the Veteran and/or guardian to contact the VA and request specific information about specific types of benefits, and to apply for specific benefits in a timely manner. 

In any event, the record indicates that throughout the period since the Veteran was discharged from active service and continuing, VA contacted the Veteran and his guardian at addresses they provided to notify of rating decisions, upcoming VA examinations, compensation rate changes, and other information. The addresses used by VA throughout the relevant time periods were also stated in various civil court submissions filed by the appellant, essentially reiterating the Veteran's history of domicile and residence. No VA letters were returned as undelivered or undeliverable.

There is a presumption of regularity under which it is assumed that government officials "have properly discharged their official duties."  United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).  The presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994).  The mere allegation of non-receipt is not such "clear evidence" to the contrary. 

In conclusion, the Veteran or his guardian did not apply for RH insurance within the applicable time period as prescribed by law, and he is not entitled to such insurance. 38 U.S.C.A. § 1922(a). Where the law is dispositive of the claim, the Board is bound by the law, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

The appeal is denied.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs