Citation Nr: 1623498 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 14-22 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether appellant has the right to file a claim challenging the alleged improper payment of the proceeds of the Veteran's National Service Life Insurance (NSLI) policy. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from March 1935 to September 1960. He died in June 1967 and appellant is his daughter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from administrative determinations made in August 2013 and October 2013 by the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran died on June [redacted], 1967; rights to his NSLI policy accrued on this date. 2. Payment of the proceeds of the Veteran's NSLI policy was made to A.E.B. as the guardian of the Veteran's daughters, in October 1967. 3. Appellant did not bring suit within six years after the right to payment of the Veteran's NSLI policy accrued. CONCLUSION OF LAW Appellant does not have the right to file a claim challenging the alleged improper payment of the proceeds of the Veteran's NSLI policy. 38 U.S.C.A. § 1984(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The historical facts and procedural history involving appellant's claim are important to discuss in explaining its denial. The Veteran was married to M.R.B. until her death on January [redacted], 1965. A review of the record indicates that the Veteran and M.R.B. had two daughters, D.R.B. (born July [redacted], 1948) and T.G.B. (born September [redacted], 1951), and that M.R.B. had another daughter, B., who was older than the Veteran's two daughters. Prior to M.R.B.'s death, the Veteran had a life insurance policy in the amount of $8,000. The effective date was July 9, 1942. The policy initially listed M.R.B. as the sole beneficiary. See March 1949 VA Form 9-1616. The Veteran subsequently amended the policy to list M.R.B. as the principal beneficiary and B.A.B. (his first wife's daughter/listed as his daughter) and appellant (D.R.B.) as contingent beneficiaries. See July 1950 VA Form 9-358. The day following his wife's death, the Veteran amended the life insurance policy again to reflect appellant (D.R.B.) and her sister (T.G.B.) as principal beneficiaries (in equal shares) and B.A.H. (his first wife's daughter/listed as his daughter) as a contingent beneficiary. See January 1965 VA Form 9-358. The Veteran married A.E.M. on February [redacted], 1966. He died on June [redacted], 1967. In a letter dated July 17, 1967, from the Chief of Personal Affairs for the Department of the Air Force to the Veterans Insurance Center in Philadelphia, it was reported that the Personal Affairs Office was assisting the Veteran's widow and his two children in filing for proceeds from the Veteran's life insurance policy. It was noted that the children, ages 18 and 15, were minors. This letter was received by VA on July 21, 1967. Prior to receipt of the July 17, 1967, letter, VA sent individual letters to appellant (D.R.B.) and her sister (T.G.B.) dated July 18, 1967. Both were informed that they were named beneficiaries of a government life insurance policy and unpaid loan and both were asked to submit necessary documents to permit settlement of the insurance. It was noted that if a minor, a custodian would need to complete the forms on their behalf. In a response to the July 17, 1967, letter dated July 28, 1967, VA informed the Chief that prior to receipt of his letter, claims and options forms were sent to the beneficiaries of the policy (appellant (D.R.B.) and T.G.B.) and that since both were minors, VA needed to ask permission of the chief attorney in St. Louis to appoint a fiduciary before making final settlement. The Veteran's second wife submitted separate applications for the proceeds for the life insurance policy on appellant's and T.G.B.'s behalf, which were received at VA on August 14, 1967. See VA Forms 21-4125. VA requested the appointment of a fiduciary, custodian or guardian on August 16, 1967. See VA Form 21-592. It was noted that a copy of a letter of guardianship and bond were attached, but these are not of record. The Veteran's second wife submitted separate applications for the proceeds for the life insurance policy on appellant's and T.G.B.'s behalf a second time, which were received at VA on September 25, 1967. See VA Forms 21-4125. A Certificate of Legal Capacity to Receive and Disburse Benefits was received from the Chief Attorney in St. Louis on September 25, 1967. See VA Form 27-555. It listed the Veteran's second wife as payee. The relationship to the beneficiaries was "guardian of the person and estate." The name and address of the court of appointment was listed as the Probate Court in Jefferson County in Hillsboro, Missouri. Payment was approved on September 28, 1967. See VA Forms 21-444. Both of these forms list the age minority ends, for both appellant (D.R.B.) and her sister (T.G.B.), as 21. Payment was made to the guardian on behalf of D.R.B. on October 1, 1967, and on behalf of T.G.B. on October 5, 1967. VA received a letter from appellant dated in December 2012, which indicated that she had come across documents related to her father's life insurance policy and that she had called VA to get information and to see if there were any proceeds payable. She reported she had been told there was no record of the policy and that she was having a hard time coming to terms with the idea that her father would have let the policy lapse before he died. She asked VA to research what became of the policy, specifically asking whether the policy lapsed and whether the proceeds were paid to someone else. Claims for one sum payment of government life insurance were subsequently submitted by appellant (D.R.H.) and her sister (T.G.T) in August 2013. See VA Forms 29-4125. In a VA Form 21-4138 attached to the claims, appellant asserted that she was submitting the claims to allow VA the opportunity to right a huge wrong done many years ago. She asserted that she and her sister never knew of her father's insurance policy until their older sister found a copy of the policy in some old records. She further asserted that unfortunately for them, their stepmother did know about it since she applied as their guardian and VA paid the proceeds, evidently without even basic consideration to make sure she was the proper payee. Appellant indicated that neither she nor her sister saw any of the insurance proceeds and she asserted that her stepmother was never their guardian. The appellant asserted that she was seeking VA payment to the proper beneficiaries based on the fact that she was not a minor when her father died; that she was almost 19 years old and should have been paid directly; and that payment of the proceeds due to her were wrongfully made to a guardian. Appellant specifically reported that her stepmother never was their guardian; that she was their stepmother briefly before their father's death and never assumed any parental relationship before or after his death; and that her sister went to live with an older sister after their father's death and appellant had already reached the age of majority and did not need a guardian. Appellant asserted that the combination of their stepmother's fraudulent application and VA's careless processing resulted in unjust enrichment of a non-entitled beneficiary and denial of payment to the proper persons. VA denied the claims in an August 20, 2013 letter, which indicated that payments to appellant and her sister could not be reissued as their stepmother was appointed as their guardian by the Probate Court and payments were authorized to her in October 1967. As for being considered a minor beneficiary, VA informed appellant that each state considers the age of which an individual has reached the age of majority and that VA had to follow the laws governing the age of majority by which each state operates. Appellant submitted a notice of disagreement in September 2013. She asserted that VA was wrong in its determination that it had to follow the state laws governing the age of majority and that since she was over the age of 18 at the time of her father's death, there was no basis to request the appointment of a custodian for her and that VA should have simply denied the claim from an improper payee and paid her directly. In an October 3, 2013 letter, VA informed appellant that her claim for the proceeds of insurance had been disallowed. VA noted that she was prohibited from making any claims against VA for insurance money because the six year statute of limitations created by federal law had expired. VA specifically determined that a claim could have been filed for improper payment of NSLI to her court appointed guardian until June [redacted], 1973, but that Section 1984(b) of Title 38 of the United States Code stipulated that "no suit on yearly renewable term insurance, United States Government Life Insurance (USGLI) or NSLI shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made." VA also noted that the age of majority in the state of Missouri was 21, citing a provision of the 1977 VA Manual. Appellant submitted another notice of disagreement in October 2013. She noted that the Board had jurisdiction of the matter and requested a statement of the case. She also noted that she had not indicated (at that time) that she was filing suit in federal district court for policy proceeds, but was merely disagreeing with VA's decision to not pay her as a proper claimant for her father's insurance policy. In a November 2013 VA Form 21-4138, appellant asserted that she did apply (though her stepmother) for her father's insurance proceeds within the six year time limit and it was her contention that VA incorrectly paid her stepmother as her custodian when she was over the age of 18 and should have been paid directly. She requested that VA correct the error and pay her the proceeds that should have been paid to her in 1967 as the designated beneficiary. In a November 2013 letter, appellant was notified that her share of the government life insurance policy was authorized for payment to Mrs. A.E.B. in October 1967, on appellant's behalf, as her court appointed guardian. A statement of the case with detailed information regarding the specifics of this case was sent to appellant. In a May 2014 VA Form 9, appellant reiterated that she felt VA wrongfully paid her father's life insurance proceeds. She again asserted that she was over the age of majority at the time of his death and should have been paid directly (with speculation as to how VA could cite a 1977 manual reference to support a decision made in 1967). She also asserted that she had not, and did not intend, to file a suit against VA, but just wanted VA to hear her case and make right a wrongful act that was done many years ago since the Veteran did not change the beneficiary to his new wife after he remarried and intended for her and her sister to get the proceeds. The law governing suits on insurance is 38 U.S.C.A. § 1984. It provides that in the event of disagreement as to a claim, including yearly renewable term insurance between the Secretary and any person or persons claiming thereunder, an action on the claim may be brought against the United States either in the United States District Court for the District of Columbia or in the district court of the United States in and for the district in which such person or any one of them resides, and jurisdiction is conferred upon such courts to hear and determine all such controversies. See 38 U.S.C.A. § 1984 (a). It further provides in pertinent part that no suit on NSLI shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made. 38 U.S.C.A. § 1984(b). Based on the assertions raised by appellant, the Board acknowledges that it appears she was not aware of her father's life insurance policy until approximately 2012, and that she was not aware her stepmother had received the proceeds on her and her sister's behalf as guardian until informed by VA in August 2013. The Board also acknowledges appellant's assertions that she was not a minor at the time the proceeds were disbursed in October 1967 and that her stepmother was never her guardian. The crux of this case, however, hinges entirely on 38 U.S.C.A. § 1984, which was discussed in the preceding paragraph. In this case, the Veteran died on June [redacted], 1967, and rights to his NSLI policy accrued on this date. Payment of the proceeds of the Veteran's NSLI policy was made to A.E.B., determined by VA's chief attorney in St. Louis to be the guardian of the Veteran's daughters for life insurance payment purposes in October 1967. The appellant had until June [redacted], 1973, six years after rights to the Veteran's NSLI policy accrued, to file a claim challenging the alleged improper payment of the proceeds of the Veteran's NSLI policy. While the Board acknowledges her assertion that that she did apply (though her stepmother) for her father's insurance proceeds within the six year time limit, this assertion relates to her stepmother's application (as guardian) for proceeds from the NSLI policy in 1967, which appellant was not aware of, not a claim filed by the appellant challenging the October 1967 payment of the NSLI policy's proceeds. There is no indication or assertion that appellant filed a claim challenging the alleged improper payment of the proceeds of the Veteran's NSLI policy during the period from June [redacted], 1967 to June [redacted], 1973. In sum, because the Appellant did not bring suit within six years after the right to payment of the Veteran's NSLI policy accrued, she does not have the right to file a claim challenging the alleged improper payment of the proceeds of the Veteran's NSLI policy and this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The notice and duty to assist provisions of 38 C.F.R. § 3.159 have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, VA is not required to meet the duty to assist a claimant. See Sabonis, 6 Vet. App. at 430 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002). ORDER The time period for Appellant to challenge the alleged improper payment of the proceeds of the Veteran's NSLI policy has expired, and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs