Citation Nr: 1422256	
Decision Date: 05/16/14    Archive Date: 05/29/14

DOCKET NO.  12-03 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The Veteran served on active duty from December 1963 to December 1965. 

This matter is before the Board of Veterans' Appeals  (Board) on appeal of an administrative decision in July 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC) that denied eligibility for RH insurance under 38 U.S.C.A. § 1922. 

In November 2012, the Veteran and his spouse appeared at a Board videoconference hearing before the undersigned.  A transcript of the hearing is in the Veteran's Virtual claims file. 


FINDINGS OF FACT

1.  The Veteran was granted service connection for an eye disability in April 2008 and he was so notified in April 2008; this grant represents the Veteran's most recent award. 

2.  In July 2011, the Veteran filed an application for Service Disabled Veterans' (RH) Insurance under 38 U.S.C.A. § 1922(a). 

3.  The preponderance of the evidence indicates that the Veteran has been competent at all times since April 2008.


CONCLUSION OF LAW

The criteria for eligibility for Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922  have not been met.  38 U.S.C.A. § 1922  (West 2002); 38 C.F.R. § 3.353 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

Because the claim at issue is limited to statutory interpretation, statutory notice provisions do not apply in this case.  Dela Cruz v. Principi, 15 Vet. App. 143   (2001); VAOPGCPREC 5-2004.  Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim.


Regulations and Analysis

A Veteran is eligible for S-DVI (hereafter RH 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 RH insurance within two years from the date that service connection is determined by VA.  38 U.S.C.A. § 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.A. § 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. 

Should an eligible veteran desire this benefit, he or she bears the obligation to file a timely application thereto.  The law does not require the VA to provide notice of eligibility for this benefit, and such lack of notice does not toll the statutory application period.  See 38 U.S.C.A. § 1922; Hill v. Derwinski, 2 Vet. App. 451   (1991).

There is no allegation in this case that the Veteran never received notice of the April 2008 rating decision.  Moreover, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties."  See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1 (1926).  In Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992), the Court found that the presumption of regularity applied to VA.  The Court found that the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.  See also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). 

In July 2011, the Veteran filed an application for Service-Disabled Veterans Insurance benefits (VA Form 29-4364).  By a July 2011 letter from the RO, the Veteran was informed that his claim for insurance benefits was denied as untimely filed.

The record does not contain any application for RH insurance benefits prior to July 2011; well outside the two-year period in which a timely application could be accepted. 

The Veteran argues that he called the information number on the cover letter to the April 2008 rating decision to request the paperwork to file for insurance benefits but that he was informed by a VA employee that he was not eligible because it had been more than two years since he was discharged from active service. 

The Veteran's sole contention is that he was misinformed by a VA employee and was not provided the necessary paperwork to apply for RH insurance.  Accepting this assertion as true, such a failure by the VA does not toll the statutory application period.  As is noted above, the VA has no statutory duty to inform the Veteran of his possible eligibility for this benefit, and therefore a lack of notice does not exempt him from 38 U.S.C.A. § 1922.  See Hill, supra.

Additionally, the United States Court of Appeals for Veterans Claims, has repeatedly held that "erroneous advice given by a government employee cannot be used to estop the government from denying benefits."  Johnson  v. Brown, 9 Vet. App. 369 (1996); Bone v. Brown, 9 Vet. App. 446  (1996).  As such, even assuming the Veteran was indeed mislead by VA, his claim still fails as the legal deadline for filing a claim for RH insurance benefits was not met. 

The Board additionally notes that the Veteran was represented by a Veterans Service Organization since 2001; although he indicated during hearing testimony that he was not represented at the time of the 2008 phone call which provided him misinformation.  The Board additionally notes that the notice letters of rating decisions in July 2007 and April 2008 specifically state that the Veteran must apply for RH insurance, "within two years of this notice of your disability rating."  The letters also supplied him with the telephone number, which he ostensibly called, as well as an internet site for more specific information concerning the RH insurance program.

While not specifically argued, it is noteworthy that an exception for the filing requirements of RH insurance benefits exists in cases where the veteran is found to be incompetent during any part of the two year period following a grant of service connection.  In such cases, the veteran has two years from the date that a guardian is appointed or, he can file within one year of removal of the disability.  38 C.F.R. § 1922(a).  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.  This exception does not, however, apply to the Veteran's case.  Despite being service-connected for PTSD, there is no evidence that the Veteran was found to be incompetent or was appointed a guardian at any time.

The Veteran's failure to timely apply for RH insurance rendered him ineligible for RH insurance.  Accordingly, although the Board is sympathetic to the Veteran in this matter, he is ineligible for Service Disabled Veterans Insurance (RH insurance) under 38 U.S.C.A. § 1922.  Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426   (1994).


ORDER

Eligibility for Service-Disabled Veterans Insurance (RH) under 38 U.S.C. § 1922(a)  is denied.



____________________________________________
THOMAS H. O'SHAY	
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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