Citation Nr: 21023254 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-27 276 DATE: April 20, 2021 ORDER The claim of entitlement to Gratuitous Service-Disabled Veterans Insurance under 38 U.S.C. § 1922(b) is denied. FINDINGS OF FACT 1. The Veteran was awarded service-connection for posttraumatic stress disorder (PTSD) and notified of this award on February 14, 2005. 2. There is no evidence that the late Veteran was mentally incompetent at any point from February 14, 2005 to February 14, 2007. 3. The Appellant filed for Gratuitous Service-Disabled Veterans Insurance in February 2008, more than two years after any award of service connection for a disability found to be compensably disabling. CONCLUSION OF LAW The eligibility criteria for Gratuitous Service-Disabled Veterans Insurance under 38 U.S.C. § 1922(b) have not been met. 38 U.S.C. § 1922. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1946 to June 1948 and from September 1950 to January 1954. He died in February 2008 and the Appellant is his surviving spouse. Following a long procedural history, a September 2015 Board decision remanded the issue on appeal for further development. That development has been accomplished, and the appeal is returned for further action. Stegall v. West, 11 Vet. App. 268 (1998). Whether the late Veteran was entitled to Gratuitous Service-Disabled Veterans Insurance under 38 U.S.C. § 1922(b). A veteran is eligible for Service Disabled Veterans Insurance (hereafter S-DVI insurance) if he was released from active service on other than dishonorable conditions after April 25, 1951 and was found by VA to have a service-connected disability rated at 10 percent or more. The veteran must be otherwise in good health and insurable if not for the service-connected disability. The veteran must apply for the S-DVI insurance within two years from the date that service connection is determined by VA. 38 U.S.C. § 1922. The period of time for application is not dependent on the effective date of service connection. However, if an applicant is shown by the evidence to have been mentally incompetent during any part of the two-year period, an application for insurance may be filed within two years after a legal guardian is appointed, or within two years after the removal of such mental incompetency, whichever is the earlier date. 38 U.S.C. § 1922. 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. Where there is a reasonable doubt as to whether a person is competent, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353. Under 38 U.S.C. § 1922(b), a person otherwise qualified for S-DVI insurance, who did not apply for such insurance, will be deemed to have applied for and been granted such insurance if he is shown by the evidence to have been mentally incompetent from a service- connected disability: (a) during any part of the two-year period from the date of service connection, (b) remained continuously so mentally incompetent until the date of death, and (c) died before appointment of a guardian or within two years after the appointment of a guardian. The Appellant filed for S-DVI in February 2008 following the death of the Veteran. There is no dispute that this application was not timely. Instead, the Appellant asserts that she is entitled to an award of S-DVI because the Veteran was incompetent during the applicable time period following service-connection. Specifically, she contends that the Veteran was incompetent as a result of dementia, a symptom of his service-connected PTSD, and qualifies for an exception to the regulation barring benefits without timely application under 38 U.S.C. § 1922(b). Review of the Veteran’s file shows that he was first awarded service connection for a compensably rated disability in a February 2005 rating decision which granted service connection for PTSD, and assigned a 30 percent disability rating effective May 27, 2004. The Veteran was notified of the February 2005 rating decision, and his award of service connection, in a letter dated on February 14, 2005. Therefore, the evidence must reflect that the late Veteran was found incompetent at any time between February 14, 2005, and February 14, 2007, to qualify for S-DVI. After review of the evidence, the Board finds that the evidence fails to show that the late Veteran was found to be incompetent at any time between February 14, 2005, and February 14, 2007. Medical treatment records dated during the applicable time period fail to show the Veteran had impaired capacity. Notably, no medical treatment report dated during the applicable time period indicates that the Veteran did not have decision making authority, had symptoms severe enough to interfere with his decision making authority, or that the Veteran’s providers questioned his cognitive ability or decision making ability. A VA medical opinion with respect to the late Veteran’s competency was obtained in June 2020. In the opinion report, the VA psychiatric stated that after review of the Veteran’s medical treatment notes, there was no evidence which supported a finding that the Veteran had impaired decision making capacity from February 14, 2005, to February 14, 2007, and it was less likely than not that the Veteran became mentally incompetent due to his service-connected PTSD at any point during the applicable time period. As rationale, the examiner noted that medical treatment reports dated from February 2005 to September 2007 included mental health examinations without mention of impaired judgment or cognitive impairment. Specifically, treatment reports dated in that time period exhibited the Veteran’s ability to make sound decision on his own medical care, and indicated that he was not exhibiting signs of severe mental health symptoms that would interfere with reasonable decision making. Plainly, there was no evidence of cognitive impairment. The examiner further described that progressive cognitive impairment was not indicated in VA treatment reports until beginning in September 2007. The Board notes that a February 2008 consultation report submitted by the Appellant does reflect that the Veteran later had diminishing mental capacity. Specifically, the report notes the Veteran’s general bodily system measurements could not be taken because of his dementia symptoms. The Board also recognizes the many medical treatment records dated from September 2007 to January 2008, which detail a significant decline of the Veteran’s cognitive impairment and confirm the Appellant had to manage the Veteran’s finances and general care because of the Veteran’s declining cognitive ability. None of these records, however, are dated between the applicable dates of February 14, 2005, and February 14, 2007. The Board further recognizes that under applicable regulation, medical evidence used to support a finding of incompetency must be clear, convincing, and leave no doubt as to the person’s incompetency. 38 C.F.R. § 3.353(c). Under this standard, there is simply no objective medical evidence from the applicable time period which establishes incompetency. As such, the Veteran’s application for S-DVI cannot be allowed under 38 U.S.C. § 1922(b). While the Board recognizes that the Appellant, and her representative, may be competent to describe observable symptoms of incompetency, neither is competent to diagnose incompetency as defined by law, as neither have been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). While the Board is sympathetic to the Appellant’s claim, unfortunately, the facts simply do support the allowance of the claim. As the Appellant filed for S-DVI in February 2008, three years after notification of the award of service connection, the late Veteran did not meet the basic eligibility requirements for S-DVI under 38 U.S.C. § 1922(a). Further, as there is no finding of incompetency between February 14, 2005, and February 14, 2007, the late Veteran cannot be found to have met the basic eligibility requirements for S-DVI under 38 U.S.C. § 1922(b). Accordingly, entitlement to S-DVI under any theory of entitlement cannot be established, and the appeal must be denied. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden, Associate 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.