Citation Nr: 22013154 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-04 661A DATE: March 8, 2022 ORDER Eligibility for Supplemental Service-Disabled Veterans Insurance ("SRH") under 38 U.S.C. § 1922A is denied. FINDING OF FACT 1. In April 2004, the Veteran was informed that he had been approved for a waiver of premiums for the underlying insurance policy. 2. The Veteran filed an application for SRH in 2016, which application was dated September 28, 2016. 3. The Veteran was born in November 1945. 4. The Veteran's application was SRH was received more than one year after he was notified that he had been approved for a waiver of premiums in April 2004. 5. At the time the Veteran filed his application for SRH, he was over 65 years of age. CONCLUSION OF LAW 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 CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1965 to November 1967. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2016 decision by the VA Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania, in which it was determined that the Veteran was not eligible for SRH. The Veteran disagreed with that decision and subsequently perfected an appeal to the Board. Notably, on his January 2017 VA Form 9, the Veteran had requested a Board hearing before a Veterans Law Judge. The Veteran was scheduled for a hearing to be held on February 24, 2022. However, prior to the hearing, the Veteran, through his representative, withdrew the request for a hearing. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900 (c). Entitlement to SRH A veteran may be entitled to Service-Disabled Veterans Insurance (S-DVI or "RH") 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, in an amount up to $30,000. Applications for SRH 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, whichever is later. 38 U.S.C. § 1922A(b). Additional, SRH may not be granted to any person unless the application is made prior to an eligible person's 65th birthday. 38 U.S.C. § 1922A(c). In the instant case, the Veteran was informed that his application for S-DVI had been approved via letter dated April 4, 2003. Via letter dated April 2, 2004, the Veteran was informed that he had been approved for a waiver of premiums. The letter also informed the Veteran that he was eligible for SRH and that if he desired to apply for such insurance, he had to apply within one year from the date of that letter, or before his 65th birthday, whichever occurred first. In 2016, the Veteran submitted an application for SRH, dated September 28, 2016. On his application, the Veteran stated that his date of birth was November 26, 1945. This date of birth is also confirmed by documents contained in his service personnel records, to include the Veteran's DD Form 214. In the present case, the Veteran was found ineligible for SRH because his application was received more than a year after he was granted a waiver of premiums and at the time that he was over 65 years of age. Specifically, as of the date of his application for SRH, the Veteran was 70 years old. Under the laws and regulations governing SRH, the Veteran was required to submit his application within one year of April 2, 2004, the date on which he was granted a waiver of premiums paid for the underlying RH insurance policy. 38 U.S.C. § 1922A(b). In this case, it is undisputed that the Veteran's application for SRH was not received by VA until 2016, well more than one year after the date on which he was granted a waiver of premiums paid for the underlying RH insurance policy. Additionally, the Veteran's application was not submitted prior to his 65th birthday. Accordingly, because the Veteran's application was not received within the allotted time period and before his 65th birthday, there is no basis upon which to grant the claim on appeal. (Continued on the next page) In so concluding, the Board has considered the Veteran's argument that he was informed by a VA employee that he would be eligible for SRH if he applied for such by October 2016. To the extent the Veteran was misinformed or given erroneous advice, regrettably such misinformation cannot provide a basis for awarding SRH. This is so because the statutory authority is clear regarding the timeframe within which one must apply for such insurance. The Board is bound by statute and, even if a VA official makes a misrepresentation that gives rise to a theory of equitable estoppel, such a misrepresentation cannot provide a basis to grant a monetary payment where Congress has not authorized such a payment or the recipient does not qualify for such a payment under applicable law. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff'd 86 F.3d 1178 (Fed. Cir. 1996) (table). (Continued on the next page) While sympathetic to the Veteran's claim in this case, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104. This is so because the laws governing entitlement to SRH are clear in that they require an application for SRH be filed not later than October 31, 1993, or within one year of the date on which an eligible person is granted a waiver of premiums paid for the underlying RH insurance policy, whichever is later, and also prior to a veteran turning age 65. 38 U.S.C. § 1922A(b), (c). 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 establish eligibility for SRH based on applications for such received after October 21, 1993, and more than one year after the date on which an eligible person is granted a waiver of premiums paid for the underlying RH insurance policy, and/or after a veteran's 65th birthday. K. Conner 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.