Citation Nr: 1621369	
Decision Date: 05/26/16    Archive Date: 06/08/16

DOCKET NO.  08-03 331A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania

THE ISSUE

1.  Entitlement to Gratuitous Service Disabled Veterans' Insurance (ARH) under the provisions of 38 U.S.C.A. § 1922(b).  

2.  Eligibility for Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a). 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from October 1963 to October 1983.  He died in March 2005.  The Appellant is the Veteran's surviving spouse. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In October 2008, the Veteran testified at a Board hearing before the undersigned via video conference.  

In January 2010, the Board remanded this case.  At that time, the Board noted that the December 2005 rating decision on appeal addressed only whether the Appellant was eligible for Gratuitous Insurance (ARH) under 38 U.S.C.A. § 1922(b).  However, the Appellant asserted that she alternatively was seeking Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a).  Accordingly, the RO was informed that in readjudicating the appeal, both RH and ARH insurance should be addressed in any supplemental statement of the case.  The subsequent supplemental statement of the case dated in March 2016 did not address this matter.  Therefore, it is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In June 1990, the Veteran suffered a fractured skull and brain trauma which resulted in cognitive defects causing mental incompetence.

2.  In March 1991, the Appellant was appointed as the Veteran's guardian by a State of California Workers' Compensation Appeals Board, Workers' Compensation Judge.

3.  An April 2002 rating decision granted service connection for diabetes mellitus (DM), Type II, effective July 9, 2001, the original date of legislation adding DM as a presumptive disorder for service connection due to herbicide exposure; the effective date was not appealed.

4.  Service connection was not granted at any time for skull fracture/brain trauma.


CONCLUSION OF LAW

The criteria for Gratuitous Service Disabled Veterans' Insurance (ARH) under the provisions of 38 U.S.C.A. § 1922(b) are not met.  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to Veterans in certain cases.  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.  There are some claims, however, to which VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).

Specifically, the VCAA has been held not to apply to claims that, as in this case, turned on statutory interpretation.  Smith v. Gober, 14 Vet. App. 227, 231-2 (2000).  Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.).  As such, no further action is required pursuant to the VCAA, although the Appellant was provided VCAA notice in September 2006.

Gratuitous Service Disabled Veterans' Insurance (ARH)

Under 38 U.S.C. 1922(b), any person who, on or after April 25, 1951, was otherwise qualified for insurance under the provisions of section 620 of the National Service Life Insurance Act of 1940, or under subsection (a) of this section, but who did not apply for such insurance and who is shown by evidence satisfactory to the Secretary to:

(A) have been mentally incompetent from a service-connected disability,
(i) at the time of release from active service, or 
(ii) during any part of the two-year period from the date the service connection of a disability is first determined by the Secretary, or 
(iii) after release from active service but is not rated service-connected disabled by the Secretary until after death; and 
(B) to have remained continuously so mentally incompetent until date of death; and 
(C) to have died before the appointment of a guardian, or within two years after the appointment of a guardian; 

shall be deemed to have applied for and to have been granted such insurance, as of the date of death, in an amount which, together with any other United States Government or National Service life insurance in force, shall aggregate $10,000.  

No application for insurance payments under this subsection shall be valid unless filed with the Secretary within two years after the date of death of the insured or before January 1, 1961, whichever is the later, and the relationship of the applicant shall be proved as of the date of death of the insured by evidence satisfactory to the Secretary.  Persons shown by evidence satisfactory to the Secretary to have been mentally or legally incompetent at the time the right to apply for death benefits expires, may make such application at any time within one year after the removal of such disability.  

A mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his or her own affairs, including entering into contracts.  38 C.F.R. § 3.353. 

The Appellant contends that as early as 1973, the Veteran began experiencing dizziness, fainting spells, and other symptoms due to DM.  In June 1990, she maintains that the Veteran fell from a roof, landed on his skull, and suffered a skull fracture.  She contends that this fall was due to uncontrolled DM.  After the accident, she states that the Veteran had residuals of the head injury and was totally disabled and she was appointed by a California State court as the Veteran's legal guardian.  After the accident, she related that the Veteran was briefly in a coma.  After coming out of the coma, the Veteran had cognitive issues including with his memory and he never was able to work again.  She asserts that he was mentally incompetent.  She basically contends that since the DM caused the fall which caused the incompetence, the award of insurance should be made.

A review of the record confirms the events as described by the Appellant.  The Veteran suffered a fall in June 1990 and he suffered brain trauma.  The subsequent medical records document the skull fracture, coma, and resultant cognitive issues.  Although some records indicated that the Veteran was competent at various times after the accident to negotiate checks, the Board accepts that he was essentially unable to manage his affairs.  A May 1991 State of California Workers' Compensation Appeals Board, Workers' Compensation Judge signed an Order appointing the Appellant Guardian Ad Litem and Trustee for the Veteran.  

Subsequent to the matters regarding the June 1990 head trauma, DM was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under § 3.309(e) which was made effective by VA as of July 9, 2001.  The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001.  See Liesegang v. Sec.'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002).  An April 2001 rating decision granted service connection for DM based on presumed inservice herbicide exposure, effective from July 9, 2001.  There was no appeal of the effective date.  At no time was service connection for brain trauma granted.  The evidence shows that the cognitive defects were the result of the brain trauma, as also indicated by the Appellant.  It is her contention that the DM resulted in the fall that resulted in the brain trauma.  However, service connection for DM was not in effect at that time of the accident.  Moreover, DM was granted pursuant to liberalizing legislation which was enacted over a decade later.  38 C.F.R. § 3.114(a).  The record does not show that the DM itself and on its own resulted in mental incompetence.

In applying the criteria for ARH insurance, the Veteran did not meet criterion (A) because he was not incompetent from a service-connected disability at the time he was released from service, during any part of a two-year period from the date the service connection of a disability was first determined by the Secretary, or after release from active service, but is not rated service-connected disabled by the Secretary until after death.  As noted, the Veteran, in pertinent part, was service-connected for DM, but not until more than 10 years after the Veteran suffered skull fracture/brain trauma.  At no time was service connection established for skull fracture/brain trauma on a direct basis or as secondary to DM, although, as noted, the brain trauma pre-dated the effective date of service connection for DM and the brain trauma caused the incompetence.  Moreover, the law requires that the Veteran have died before the appointment of a guardian, or within two years after the appointment of a guardian.  In this case, the Appellant was appointed as his guardian during his lifetime which she admits, and about 14 years prior to his death.  Accordingly, the criteria for Gratuitous Service Disabled Veterans' Insurance (ARH) under the provisions of 38 U.S.C.A. § 1922(b) are not met.   


ORDER

Gratuitous Service Disabled Veterans' Insurance (ARH) under the provisions of 38 U.S.C.A. § 1922(b) is denied.


REMAND

As noted, the January 2010 Board remand indicated that the RO should consider eligibility for Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) and address that matter in a supplemental statement of the case, but the supplemental statement of the case did not address it.  In light of the foregoing, further action is necessary in this case, in accordance with the previous Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders).

Accordingly, the case is REMANDED for the following action:

Consider the issue of eligibility for Service-Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) in light of all of the evidence of record.  If this benefit is denied, issue the Appellant a supplemental statement of the case. After the Appellant has been given an opportunity to respond, the record should be returned to this Board for further appellate review.

The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals