Citation Nr: 21021489 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-26 259 DATE: April 13, 2021 ORDER Entitlement to a waiver of Service-Disabled Veterans Insurance (S-DVI) premiums under 38 U.S.C. § 1912 is denied. FINDING OF FACT To the extent that the Veteran is shown to be totally disabled, total disability arose prior to applying for S-DVI in October 2012; a service-connected disability is not the sole cause of total disability. CONCLUSION OF LAW The criteria for entitlement to a waiver of premiums for S-DVI are not met. 38 U.S.C. §§ 1912, 1922. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from July 1963 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 determination by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, which found that the Veteran could not be approved for a waiver of premiums on his S-DVI because he was not totally disabled due to a service-connected disability. The Veteran disagreed with that determination and this appeal ensued. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2014. A transcript of that hearing is of record. The Board notes that the instant matter was most recently before it in March 2020, at which time the matter was remanded to ensure compliance with the Board’s December 2014 remand action. Specifically, the Board directed that the agency of original jurisdiction (AOJ) was to issue a supplemental statement of case (SSOC) addressing the issue of entitlement to waiver of premiums for S-DVI under 38 U.S.C. § 1922(a). A review of the record shows that an SSOC was issued in September 2020 in which the AOJ continued to deny the Veteran’s claim. The matter was thereafter returned to the Board for further appellant review. Waiver of 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. 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 November 2010, the Veteran was awarded VA disability compensation or “service connection” for a left ankle strain, evaluated as 10 percent disabling, effective from August 31, 2010. Thereafter, the Veteran applied for S-DVI. Notably, the application itself is not of record. In the March 2014 statement of case (SOC), however, the AOJ indicated that the Veteran’s application for S-DVI was received in October 2012, at which time he also requested a waiver or premiums, stating that he had not worked in the past year (although on his insurance application, the Veteran reported that he last worked in 1979) and that he was found disabled on account of his bipolar disorder by the Social Security Administration in 1976. (Parenthetically, the Board notes that in a December 2013 letter, the AOJ indicated that the Veteran had stopped working in 1979 and had begun receiving SSA disability benefits due to a psychiatric disorder in 1989; this discrepancy is not material to the outcome of this case, however, as both dates indicate that the Veteran became too disabled to work prior to applying for S-DVI, the significance of which will be discussed below.) The SOC stated that the Veteran was awarded S-DVI in December 2012 and was issued a $5,000 Ordinary Life policy. Of record, then, is a January 2013 letter to the Veteran in which the Veteran was informed that he could not be approved for a waiver of premiums. Specifically, it was noted that the Veteran had asserted he was totally disabled due to bipolar disorder, which condition was not service connected. Regarding whether the Veteran is totally disabled for insurance purposes, 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. 38 U.S.C. § 1912(a). Here, the Veteran has asserted that he has been awarded SSA disability benefits due to a psychiatric disability. Although previous attempts were made to obtain the Veteran’s SSA records, in April 2015, SSA responded that after exhaustive and comprehensive searches, the Veteran’s records could not be located. Assuming, however, that the Veteran’s report is accurate, the Veteran has indicated that he was awarded SSA disability benefits in 1976 or 1989. Thus, to the extent that his receipt of SSA disability benefits shows that he is “totally disabled” for insurance purposes, his total disability began prior to his applying for S-DVI in 2012. In this regard, the Board points out that 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 1979 and the evidence suggests that he has been receiving SSA disability benefits since at least 1989, if not earlier. Accordingly, the evidence suggests that the Veteran was totally disabled for insurance purposes prior to applying for S-DVI in June 2014. 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, VA has interpreted this as providing an exception for cases in which the total disability began prior to the effective date on an S-DVI 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. (Continued on the next page)   Here, the Veteran’s only service-connected disability is left ankle strain. The Veteran has not alleged, nor does that evidence otherwise so suggest, that he is totally disabled due to his left ankle strain. Indeed, the Veteran has maintained that he is totally disabled due to his nonservice-connected psychiatric disability. Although the Veteran had previously sought service connection for an acquired psychiatric disorder, in a June 2016 Board decision it denied service connection for an acquired psychiatric disorder. Unfortunately, this precludes the exception set forth above from applying in this case. In light of the foregoing, the Board finds that, to the extent the Veteran is considered totally disabled for insurance purposes, 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). M. Tenner 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.