Citation Nr: 0003689 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-10 569A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance (NSLI) policy. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services Appellee represented by: None WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, which determined that the appellant, Vivian, was not entitled to the proceeds of the veteran's NSLI policy. The veteran had active service, reportedly from October 1945 to May 1946, and he died in October 1996. Vivian is the veteran's surviving spouse, and the appellee, Mary, is the veteran's former spouse. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. A beneficiary designation signed by the veteran dated May 23, 1964, was received by the RO on June 9, 1964; Mary was designated as the principal beneficiary of all of the proceeds of the veteran's NSLI policy. 3. A beneficiary designation dated December 19, 1985, was not signed by the veteran or forwarded to VA. CONCLUSION OF LAW Vivian has not met the requirements for entitlement to the proceeds of the veteran's NSLI policy. 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. § 8.22 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Essentially, Vivian contends that she should be entitled to the proceeds of the veteran's NSLI policy because it was not the veteran's intention to have the proceeds go to his former wife, Mary. Rather, he wanted the proceeds to go to Vivian for his burial, or in the alternative to MIT. In support of her claim, Vivian has submitted an uncompleted VA beneficiary designation form dated in December 1985 and indicated that a completed one was possibly mailed to the VA at the wrong address or was lost. She has also submitted various documents in support of her claim including a retirement beneficiary designation change, a copy of a revoked will, and Mary has not advanced any contentions in the matter. An NSLI policy is a contract between the Government and the insured. Under this contract, the veteran has the absolute right to determine the beneficiary or beneficiaries of his insurance, and he has a right to change the beneficiary designation. See 38 U.S.C.A. § 1917(a); 38 C.F.R. § 8.22. A change of beneficiary or optional settlement to be effective must be made by notice in writing signed by the insured and forwarded to the Department of Veterans Affairs by the insured or designated agent, and must contain sufficient information to identify the insured. 38 C.F.R. § 8.22. See also Curtis v. West, 11 Vet. App. 129, 132 (1998). Courts have also held that where the intent of the insured is manifest, legal technicalities to effectuate that intent will be brushed aside. See United States v. Pahmer, 238 F.2nd, 431 (2nd Cir. 1956); Collins v. United States, 161 F.2nd, 64 (10th Cir. 1947). However, there must be evidence of this intent, coupled with an affirmative act by the insured to effectuate that intent. Curtis v. West, 11 Vet. App. at 133 (citing Jones v. Brown, 6 Vet. App. 388, 390 (1994) and Young v. Derwinski, 2 Vet. App. 59, 61 (1992)). In this case, there is no evidence that the veteran intended to change the beneficiary designation of his NSLI policy from Mary to the appellant. As to the February 1985 VA beneficiary designation form, it was not signed by the veteran, and if signed by the veteran, was never received by VA. The VA Insurance Service contacted the veteran's benefits counselor office where the beneficiary designation was purportedly completed. It was related that they did not keep any records beyond one year and that, while the handwriting on the form was that of a former benefits counselor, he did not remember the veteran. In any event, it was indicated that they would normally complete and mail the form for the veteran and that only when the veteran requested to do so himself, would the form be given to the veteran. Assuming that the form was provided to the veteran following its completion, without a signature, there is no evidence that he signed the form and forwarded the document to VA. Vivian testified that she found the document in Hawaii after the veteran died. As such, the unsigned December 1985 beneficiary designation does not evidence the veteran's intent to change the beneficiary designation. Similarly, other documents submitted by the appellant do not express any intent of the veteran to change his NSLI beneficiary designation or otherwise provide evidence of his intent sufficient to brush aside the legal requirements for changing beneficiaries. From all indications, for example, the veteran was fond of MIT and as an alumni received solicitations for contributions to the chemistry department, but that is as much as can be inferred from this evidence. The Board concludes that the May 1964 beneficiary designation signed by the veteran is the last expression of his intent concerning the proceeds of his NSLI policy. Therefore, the appellant is not entitled to the proceeds of the veteran's NSLI policy and her appeal is denied. Since this is a contested claim, the VA has certain procedures to ensure due process of both parties. However, it is not clear that all of these procedures have been followed with respect to Mary's rights. In this regard, Mary was informed that the appellant had requested a hearing and that she would be afforded an opportunity to be present, but not participate in the hearing or would be advised of the substance of the arguments or contentions advanced. It does not appear that Mary was informed of the date and location of the hearing. Nevertheless, given the Board's determination in this case, the Board conceives of no prejudice to the appellee based on deficiencies in contested claim procedures. ORDER The appellant is not entitled to the proceeds of the veteran's NSLI policy, and the benefit sought on appeal is denied. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals