Citation Nr: 18145871 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-06 592A DATE: October 30, 2018 ORDER Eligibility for Supplemental Service-Disabled Veterans Insurance (“SRH” insurance) under 38 U.S.C. § 1922A is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May to December 1970. He died in September 2013. The appellant is his surviving spouse. 2. In May 2014, the RO granted the Veteran’s claim for Service-Disabled Veterans Insurance (“RH” insurance) under 38 U.S.C. § 1922(a). 3. During his lifetime, the Veteran did not apply for SRH insurance under 38 U.S.C. § 1922A. CONCLUSION OF LAW The eligibility criteria for SRH insurance under 38 U.S.C. § 1922A have not been met. 38 U.S.C. §§ 1912, 1922, 1922A (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In May 2018, the appellant and her sister testified at a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. A veteran may be entitled to Service-Disabled Veterans Insurance (S-DVI or “RH” insurance) when it is determined that he/she has a compensable service-connected disability and he/she applies in writing for such insurance within two years of the date service connection was granted. 38 U.S.C. § 1922(a). Under 38 U.S.C. § 1922A, veterans insured under 38 U.S.C. § 1922(a), who also qualify for a waiver of premiums paid on that policy, are also eligible for SRH insurance, in an amount up to $30,000. Applications for SRH insurance must be filed by an eligible veteran not later than October 31, 1993, or within one year of the date on which he/she is granted a waiver of premiums paid for the underlying RH insurance policy, and prior to his/her 65th birthday. 38 U.S.C. § 1922A(b), (c). Regarding waiver of premiums, the law provides that upon application by the insured and under such regulations as the Secretary may promulgate, payment of premiums on insurance may be waived during the continuous total disability of the insured, which continues or has continued for six or more consecutive months, if such disability began (1) after the date of the insured’s application for insurance, (2) while the insurance was in force under premium-paying conditions, and (3) before the insured’s sixty-fifth birthday. 38 U.S.C. § 1912(a). There does, however, exist an exception for cases in which the total disability began prior to the effective date on an RH insurance policy, if such total disability is due to a service-connected disability; in such cases, a waiver of premiums may be made. See https://www.benefits.gov/benefit/4759. Further, notwithstanding any other provision of this chapter, in any case in which the total disability of the insured commenced on or after the insured’s sixtieth birthday but before the insured’s sixty-fifth birthday, the Secretary shall not grant waiver of any premium becoming due prior to January 1, 1965. 38 U.S.C. § 1912(a). A review of the record shows that the Veteran was originally granted service connection for schizophrenia in June 1971 and a 50 percent rating was assigned. The rating was subsequently increased to 100 percent effective September 1980. In August 2013, the RO granted service connection for amyotrophic lateral sclerosis (ALS) with loss of use of both lower extremities. The RO also granted special monthly compensation (SMC) based on loss of use of both lower extremities and established entitlement to automobile and adaptive equipment and to specially adapted housing. That decision also proposed a finding of incompetency. The Veteran was notified of this decision by way of letter dated August 29, 2013, which also notified him that he might be eligible for S-DVI government life insurance and that he would be sent an S-DVI package within two weeks. In September 2013, the Veteran submitted an application for RH insurance, which was dated September 5, 2013, signed on his behalf by the appellant, who indicated that she was acting as his power of attorney. The Veteran ultimately signed a “Special Power of Attorney” appointing the appellant as his “Agent” on September 10, 2013. On September [redacted], 2013, the Veteran died. The death certificate states that the immediate cause of death was ALS. In October 2013, the RO granted service connection for the cause of the Veteran’s death. Also in October 2013, the RO informed the appellant that the Veteran had been approved for RH insurance in the amount of $10,000, and that a waiver of premiums had been granted. It was indicated that because he was unable to sign the application, by law, the estate would be the beneficiary of record. In January 2014, the appellant submitted an application for SRH Insurance, which application she signed on behalf of the deceased Veteran on January 18, 2014. In March 2014, the appellant requested that the Veteran be rated as incompetent during his lifetime. In an April 2014 rating decision, the RO established incompetency for insurance purposes. In April 2014, the appellant again requested SRH insurance in the amount of $30,000. In May 2014, the RO granted Gratuitous S-DVI under 38 U.S.C. § 1922(b) (“ARH” insurance) based on medical evidence to the effect that the Veteran was mentally incompetent at the time of his death due to his ALS. She was notified of that decision by letter dated May 8, 2014. The record contains a letter dated June 26, 2014, which was issued in reference to the May 2014 rating decision granting entitlement to ARH insurance. In that letter, the RO informed the appellant that the Veteran’s application for RH insurance had been approved and thus, there was no entitlement to ARH insurance under 38 U.S.C. § 1922(b) because a $10,000, 20-Payment Life policy was issued. Also of record is VA’s response to a February 2014 Congressional Inquiry concerning eligibility for SRH insurance. In that response, the Director of the RO’s Insurance Center noted that the Veteran’s had been approved for RH insurance and was granted a waiver of premiums. The Director went on to state, however, that because the waiver was approved after the Veteran’s death, an eligibility period for SRH insurance was never established. It was further noted that without a signed application from the Veteran, there could be no entitlement to SRH insurance. Although the Veteran had an RH insurance policy in effect under 38 U.S.C. § 1922(a), an award of SRH insurance may not be granted because the Veteran himself did not apply for SRH insurance during his lifetime. Notably, while the law provides that RH insurance may be awarded posthumously in accordance with the provisions of 38 U.S.C. § 1922(b), no similar provision exists for the award of SRH insurance. Compare 38 U.S.C. § 1922(b) (providing posthumous life insurance coverage for certain veterans) with 38 U.S.C. § 1922A (providing for supplemental insurance upon the same terms and conditions as insurance granted under 38 U.S.C. § 1922(a)). In other words, because, in the instant case, the application for SRH insurance was not filed by, or behalf of, the Veteran during his lifetime, there is simply no basis in law upon which to award SRH insurance in this case. In this regard, the Board has considered the actions of the agency of original jurisdiction (AOJ) and the frustration of the appellant. Indeed, the AOJ issued multiple decisions regarding the Veteran’s application for RH insurance and the appellant’s application for ARH insurance, which contain conflicting outcomes with regard to the benefits sought and regarding whether he in fact qualified for a waiver of premiums of RH insurance, such that he would potentially be entitled to SRH insurance. Regardless of the confusion surrounding the actions taken on this claim, the law does not provide for posthumous applications for SRH insurance in the same way as it does for RH insurance. Where, as here, the law is dispositive of the claim, the Board is bound by the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Nothing in the language of 38 U.S.C. § 1922A affords VA the authority to accept an application for SRH insurance filed posthumously on behalf of the Veteran. Further, to the extent that the appellant maintains that SRH insurance should be awarded because she was unaware of the existence of such benefit during the Veteran’s lifetime, that argument is essentially one that is couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 710; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Consequently, because the Veteran did not apply for SRH insurance during his lifetime, the appeal is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel