Citation Nr: A25035275 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210119-136908 DATE: April 16, 2025 REMANDED The claim of entitlement to legacy Service-Disabled Veterans Insurance (S-DVI) under 38 U.S.C. § 1922(a) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from August 1986 to November 1994. See DD Form 214. In February 2020, the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, denied the Veterans' application for Legacy S-DVI because he was not in good health according to the underwriting. See Insurance Appeal. In a January 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. See VA Form 10182 Notice of Disagreement received January 19, 2021. Therefore, the Board could only consider the evidence of record at the time of the February 19, 2019, decision on appeal, and what was submitted by the Veteran or his representative within the 90-day evidence window from receipt of the January 19, 2021 VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication. 38 C.F.R. § 3.103(c)(2)(ii). As a final preliminary matter, the Board notes that Section 2004 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. 116-315, 134 Stat. 4937 (2021), amended the VA life insurance program by ending S-DVI as it had existed, creating a new program that VA calls Veterans Affairs Life Insurance (VA Life); that section also directs that the old S-DVI program should be referred to as Legacy S-DVI. Notably, VA stopped taking new applications for Legacy S-DVI after December 31, 2022, and started taking applications for VA Life on January 1, 2023. The Board observes that the Veteran was awarded VA Life insurance on January 22, 2023. See Insurance Appeal. Entitlement to Legacy Service-Disabled Veterans Insurance (S-DVI) under 38 U.S.C. § 1922(a) A veteran may be entitled to Legacy S-DVI when it is determined that he has a compensable service-connected disability, and he applies in writing for such insurance within two years of the date service connection was granted. 38 U.S.C. § 1922(a). Specifically, the law provides that any person who is released from active military, naval, air or space service, under other than dishonorable conditions on or after April 25, 1951, and is found by the Secretary to be suffering from a disability or disabilities for which compensation would be payable if 10 per centum or more in degree and except for which such person would be insurable according to the standards of good health established by the Secretary, shall, upon application in writing made within two years from the date service connection of such disability is determined by the Secretary and payment of premiums as provided in this subchapter be granted insurance by the United States against the death of such person occurring while such insurance is in force. Id. Applications for Legacy S-DVI under 38 U.S.C. § 1922 must be received no later than December 31, 2022. 38 U.S.C. § 1922(d)(1). In order to be eligible for Legacy S-DVI, the veteran not only must file a timely application and have a compensable service-connected disability, but he must also be considered in "good health," except for service-connected disabilities. 38 U.S.C. § 1922(a). The term "good health" means that a veteran is, from clinical or other evidence, free from any condition that would tend to weaken normal physical or mental functions or shorten life. 38 C.F.R. § 8.0(a). The Secretary has established standards to determine whether a person is in good health, which are contained in the Veterans Benefits Manual, M29-1, Part V, Insurance Operations Underwriting Procedures. 38 C.F.R. § 8.0 (b); https://www.benefits.va.gov/WARMS/M29_1.asp. As explained in the M29-1, numeric ratings are used to classify applicants according to their state of health and determine each individual's mortality ratio. Mortality debits for existing impairments are added and credits for favorable features are subtracted. The total of these numerically expressed debits and credits is the mortality ratio of the risk. Applications for RH insurance will be acceptable if nonservice-connected disabilities do not exceed 300 percent mortality. See M29-1, Part V, Chapter 1, Paragraph 1.07(b)(1); 38 C.F.R. § 8.0(b). An application will be rejected if an applicant is totally disabled because of a nonservice-connected disability. See M29-1, Part V, Chapter 1, Paragraph 1.07(d). At the time of the decision on appeal, the Veteran's obstructive sleep apnea (OSA) and allergic rhinitis were service connected, evaluated as 50 percent and 0 percent disabling, respectively. See December 2019 Rating Decision-Codesheet. In denying entitlement to S-DVI, the AOJ stated that the evidence of record also showed the Veteran had HIV, Addison's disease, and Hepatitis B that were not service connected, and therefore he did not meet the good health requirement for S-DVI eligibility. See February 1, 2020, Insurance Appeal. A corresponding underwriter's numerical rating sheet showed that he was HIV positive with Addison's disease and assigned an "R" for the debit; and also listed Hepatitis B, assigning 55 as the debit. Unfortunately, an Attending Physician's Statement is not of record, and is necessary when underwriting HIV. Accordingly, the procedural requirements set forth in the M29-1 have not been complied with, and remand is required for correction for the pre-decisional error. See 38 C.F.R. § 20.802(a). The Board notes that in October 2024, following a December 2023 Board remand, the Veteran was awarded service connection for Addison's disease. See Rating Decision-Narrative. The matters are REMANDED for the following action: Ensure that the underwriting requirements of the M29-1, are complied with, to include obtaining all necessary Attending Physician's Statements (VA Form 29-8158); after all necessary APSs has been completed, obtain a new underwriting numerical rating. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.