Friday, February 28, 2014

Martin v. Shinseki

Martin v. Shinseki, docket no. 11-3814 (Vet.App. Feb. 28, 2014)
The grant of S-DVI under 38 U.S.C. § 1922(b) is treated, by operation of law, as an award under § 1922(a). However, in order to be eligible for Supplemental S-DVI under 38 U.S.C. § 1922A, a veteran must qualify for a waiver of premiums under 38 U.S.C. § 1912.

S-DVI is life insurance for service-connected veterans who are otherwise in good health. Veterans with service-connected conditions payable at 10% or more are eligible for S-DVI if they apply for the insurance within two years of the date of service connection and pay the required premiums. 38 U.S.C. § 1922(a). Under § 1922(b), veterans who would be qualified for insurance under subsection (a), but who were found to be mentally incompetent at the time of death, “shall be deemed to have applied for and to have been granted such insurance, as of the date of death.” 38 U.S.C. § 1922(b). 

A veteran who is granted S-DVI, and qualifies for a waiver of premiums based on being totally disabled, is eligible for Supplemental S-DVI. 38 U.S.C. § 1922A. Supplemental S-DVI is granted under the same terms and conditions as S-DVI, as long as the veteran applies before age 65. Premium payments may be waived during the continuous total disability of the insured. 38 U.S.C. § 1912(a). If the veteran dies before applying for a waiver, the insured veteran’s beneficiary may file an application within a year of the veteran’s death. 38 U.S.C. § 1912(c).

The veteran in this case did not apply for S-DVI. He was awarded 100% disability for pancreatic cancer right before he passed away. A hospice nurse stated that the veteran was unable to manage his affairs at the end of his life due to high doses of medication. *3.  After the veteran died, his wife applied for S-DVI and Supplemental S-DVI. The RO awarded gratuitous S-DVI under 38 U.S.C. § 1922(b) (awarded where the veteran is unable to apply as a result of mental incapacity). The RO denied Supplemental S-DVI because the veteran never applied for S-DVI while he was alive. Id. The wife appealed, arguing that she should be entitled to Supplemental S-DVI as the beneficiary of her totally disabled husband. The Court disagreed, finding that while an award of S-DVI under § 1922(b) is treated, as a matter of law, as an award under § 1922(a), eligibility for Supplemental S-DVI requires the veteran to qualify for a waiver of premiums under § 1912. *8-10; 38 U.S.C. § 1922A. Since the veteran in this case did not meet all the requirements for a waiver under § 1912, his wife was not entitled to Supplemental S-DVI. *9-10.

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