Citation Nr: 19167275 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 16-40 810A DATE: August 29, 2019 ORDER The claim of entitlement to a waiver of Service-Disabled Veterans Insurance (S-DVI) premiums under 38 U.S.C. § 1912 is denied. The claim of entitlement to Supplemental S-DVI (“SRH” insurance) under 38 U.S.C. § 1922A is denied. FINDINGS OF FACT 1. The Veteran is shown to have been totally disabled prior to applying for S-DVI in June 2014; a service-connected disability is not the sole cause of his total disability. 2. The Veteran is not eligible for a waiver of premiums paid on S-DVI policy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a waiver of premiums for S-DVI are not met. 38 U.S.C. § § 1912, 1922. 2. The eligibility criteria for SRH insurance under 38 U.S.C. § 1922A are not met. 38 U.S.C. §§ 1912, 1922, 1922A. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1957 to January 1958. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2015 decision by the VA Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. The Veteran timely disagreed with that decision, and this appeal ensued. On May 1, 2019, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that during the hearing, the Veteran also wished to discuss the issue of entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss. However, that issue is not on appeal. Waiver of S-DVI Premiums Relevant to this case, the Board notes that the United States, through VA, provides life insurance for those who have other than dishonorable active duty military service and a resulting compensable disability, if they would otherwise be insurable but for the disability. 38 U.S.C. § 1922(a). This insurance is granted under the same terms and conditions as are contained in the standard policies of National Service Life Insurance with the exception of calculation of premiums and benefits. Id. 38 U.S.C. § 1922(a). For insurance issued under 38 U.S.C. § 1922(a), payment of premiums on insurance may, upon application by the insured, 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 review of the record shows that via rating decision dated in June 2014, the Veteran was awarded service connection for bilateral hearing loss, evaluated as 60 percent disabling, effective from June 6, 2012. That same month, the Veteran applied for S-DVI, indicating that he was working full time, but that he was self-employed, doing yard work. He also reported that he had stopped working full time in 2009. Regarding his own health, the Veteran reported that he had a heart condition for which he had had a stent implanted, and that he had skin cancer. In August 2014, the Veteran was approved for S-DVI and was issued a $10,000 Ordinary Life policy, effective July 14, 2014. Also, in August 2014, the Veteran applied for a waiver of S-DVI premiums and requested a $30,000 life insurance policy. He was informed that additional information was necessary to process his request for waiver of premiums. Thereafter, the Veteran submitted additional information and evidence in support of his claim, to include stating his belief that his hearing problems had a negative impact on employment, noting that he had stopped working due to disability in 1990, and reporting that he was receiving disability benefits from the Social Security Administration (SSA) as he was unable to work due to chronic fatigue and immune dysfunction syndrome. In a March 2015 report, his treating physician confirmed that the Veteran was disabled due to his chronic fatigue syndrome, which had begun in 1990. A progress note dated that same month indicated a history of reoccurring basal cell adenocarcinoma, pain in the right lower extremity, coronary artery disease, sleep apnea, elevated blood sugar, and hyperglycemia. The Veteran also submitted a letter from R.M.M., M.D., dated in 1967, wherein it was reported that the Veteran had nerve deafness due to noise exposure from gunfire. Additionally, the Veteran submitted a neuropsychological report dated in July 1991 wherein it was reported that the Veteran slept 10 to 14 hours per day and suffered from headaches, fatigue, depression, panic attacks, pain, and cognitive function problems. The evaluating clinician opined that the Veteran met the Social Security guidelines for Organic Mental Disorder. In August 2015, the Veteran’s hearing loss rating was increased to 100 percent, effective from April 13, 2015. In a separate decision dated that same month, the Veteran was also denied a waiver of S-DVI premiums. Specifically, it was determined that the Veteran was not totally disabled for insurance purposes because his nonservice-connected disabilities were the primary reason he was not working. Upon review of the evidence of record, the Board concludes that the Veteran is in fact “totally disabled” for insurance purposes. In this regard, the Board notes that unlike claims for total disability for pension or compensation purposes, the insured need not show total and permanent disability to prove he is “totally disabled” for insurance purposes. Rather, he/she must submit evidence establishing that, due to disability, he/she is unable to pursue continuously for six or more consecutive months a substantially gainful occupation without material injury to his health. Evidence of such is present in this case. Notably, however, the law provides that a waiver of premiums is available only in cases in which the total disability began “after the date of the insured’s application for insurance.” 38 U.S.C. § 1912. Here, the Veteran himself has reported being unable to work due to disability since approximately 1990 and the evidence suggests that he has been receiving SSA disability benefits from approximately that timeframe. The Veteran’s physician has also reported that the Veteran is disabled due to his chronic fatigue, which began in 1990. Accordingly, the Board finds that the competent and probative evidence of record demonstrates that the Veteran was totally disabled for insurance purposes prior to applying for S-DVI in June 2014. Although the Veteran reported on his application for such that he was then working fulltime, he also indicated that it was self-employment doing yard work. Further, there is no evidence to suggest that the Veteran’s self-employment was substantially gainful. The Board also points out that although there does not exist a statutory or regulatory exception to the standard set for in the 38 U.S.C. § 1912, the Veterans Benefits Manual M29-1, Part I, Insurance Operations Underwriting Procedures (M29-1) provides that a waiver of premiums “may not be denied on the ground that the service-connected disability became total prior to the effective date of the insurance.” See https://www.benefits.va.gov/WARMS/M29_1.asp. VA has interpreted this as providing 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. Here, although the Veteran contends that his service-connected hearing loss impacted his ability to work, there is no evidence to suggest that he was totally disabled due solely to his hearing loss prior to applying for S-DVI. Indeed, the medical evidence of record suggests heavily that the Veteran is primarily unable to work due to his nonservice-connected chronic fatigue syndrome. Unfortunately, this precludes the exception set forth above from applying in this case. In light of the foregoing, the Board finds that the Veteran’s total disability did not begin after the date of the Veteran’s application for insurance or while the insurance was in force under premium-paying conditions; thus, the claim must be denied. 38 U.S.C. § 1912(a). Entitlement to SRH In the instant case, the agency of original jurisdiction (AOJ) considered the Veteran’s request for insurance in the amount of $30,000 as a request for SRH. In this regard, the Board notes that 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. As it has been determined that the Veteran does not qualify for a waiver of premiums of his S-DVI policy, he is not entitled to SRH insurance as a matter of law and the claim must be denied. 38 U.S.C. § 1922A; Sabonis v. Brown, 6 Vet. App. 426 (1994). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.