Citation Nr: 0007824 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-05 442 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance policy. REPRESENTATION Appellant represented by: James Watterson, Attorney ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran had active service from November 1943 to July 1946. The veteran died in January 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC) in Philadelphia, Pennsylvania, that the appellant was not the last validly designated beneficiary of the veteran's National Service Life Insurance policy and was not entitled to the proceeds of the policy. Another person, namely [redacted], was named the beneficiary, and the originating agency held that she was entitled to the life insurance proceeds. However, her whereabouts are unknown. Consequently, the proceeds have not been distributed to her, and she has not received notification of the appeal. FINDINGS OF FACT 1. The veteran lacked testamentary capacity in July 1976 and in January 1978, when he designated [redacted] as the principal beneficiary of government life insurance proceeds. 2. The appellant remains the properly designated principal beneficiary. CONCLUSION OF LAW The criteria for entitlement to the proceeds of the veteran's National Service Life Insurance policy have been met. 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. § 3.355 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 1976, the veteran designated [redacted], described as a friend, as the principal beneficiary of government life insurance proceeds and listed his daughter, the appellant, as a contingent beneficiary. A January 1978 designation also lists [redacted] as the principal beneficiary and lists the daughter as the contingent beneficiary. Prior to July 1976, the appellant was listed as the principal beneficiary, the contingent beneficiary consisting of the estate of the insured. The appellant contends that the veteran was lacked testamentary capacity at the time that he changed the principal beneficiary in July 1976 and at the time that he submitted the January 1978 designation. The appellant asks, therefore, that she be recognized as veteran's designated beneficiary. At issue, therefore, is the testamentary capacity of the veteran at the time of the designations in question. VA regulations provide, pertinent part: When cases are referred to a rating agency involving the testamentary capacity of the insured to execute designations or changes of beneficiary, or designations or changes of option, the following considerations will apply: (a) Testamentary capacity is that degree of mental capacity necessary to enable a person to perform a testamentary act. This, in general, requires that the testator reasonably comprehend the nature and significance of his act, that is, the subject and extent of his disposition, recognition of the object of his bounty, and appreciation of the consequence of his act, uninfluenced by any material delusion as to the property or persons involved. (b) Due consideration should be given to all facts of record, with emphasis being placed on those facts bearing upon the mental condition of the testator (insured) at the time or nearest the time he executed the designation or change. In this connection, consideration should be given to lay as well as medical evidence. (c) Lack of testamentary capacity should not be confused with insanity or mental incompetence. An insane person might have a lucid interval during which he would possess testamentary capacity. On the other hand, a sane person might suffer a temporary mental aberration during which he would not possess testamentary capacity. There is a general but rebuttable presumption that every testator possesses testamentary capacity. Therefore, reasonable doubts should be resolved in favor of testamentary capacity. 38 C.F.R. § 3.555; see also 38 U.S.C.A. § 1917. Medical records associated with the claims file reflect that the veteran, who was under conservatorship of the Public Guardian of San Mateo County from 1976 until his death in 1995, was treated at various points in connection with psychiatric diagnoses that include manic depressive psychosis. The veteran's multiple periods of hospitalization include a hospitalization in July 1976 in connection with various diagnoses, among which were depressive reaction. A September 1976 hospitalization report reflects that the veteran was admitted in July 1976 for a partial gastrectomy and discharged in August 1976, three days after which he was re-admitted in an extremely toxic and confused state. According to the September 1976 report, the veteran had been overdosing himself with lithium carbonate and possibly other medications. The impression was manic depressive reaction, bipolar, toxic confused state related to over-medication. As pointed out by the appellant's attorney in his submissions to the VA, these periods of hospitalization, in particular, were close in time to the designations at issue in this case. A November 1998 letter from a private physician addresses the veteran's mental state from 1976 to 1978. The author of that letter, who reviewed available records of treatment and who had treated the veteran himself, indicated that the veteran's diagnoses included bipolar disorder. The author observed also that the veteran tended to call massage parlors or call- girls during his manic states and that this is how, in the author's estimation, the veteran came in contact with the principal beneficiary, with respect to the relationship with whom the veteran had deluded himself. The author indicated that the veteran's change of beneficiary on his insurance policy was "an irrational act proceeding from his bipolar disorder." Evidence of the veteran's irrationality included the fact that the veteran attempted to change the beneficiary again in January 1978, apparently unaware that he had already done so previously. The author of that letter added that the fact that the veteran did not re-designated his daughter as the principal beneficiary during more lucid moments was consistent with bipolar disorder because the veteran, "once in a more normal state, . . . would tend to deny and ignore the things he had done during periods of mental illness." Evidence in the claims file establishes that the veteran lacked testamentary capacity in July 1976 and in January 1978, when he designated [redacted] as the principal beneficiary of government life insurance proceeds. Those designations are invalid, and the appellant, therefore, remains the properly designated principal beneficiary. ORDER The appeal is granted. BRUCE KANNEE Member, Board of Veterans' Appeals