BVA9500011 DOCKET NO. 93-06 038 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance policy. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from December 1942 to December 1945. He died in December 1991. The appellant is the veteran's surviving spouse. This matter came before the Board of Veterans Appeals (Board) on appeal from an administrative decision of April 1992 by the Department of Veterans Affairs (VA) Regional Office and Insurance Center in St. Paul, Minnesota (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO made a mistake by denying her claim for the proceeds of the veteran's National Service Life Insurance policy. She asserts that the veteran intended that she receive all of the insurance proceeds upon his death. She argues that the veteran's intent is evidenced by his will, in which he named her as the beneficiary, and by a note dated in September 1982 in which the veteran stated that he had submitted a change of beneficiary form to the VA. The appellant argues that the veteran would not have wanted the proceeds to go to his former wife Janice. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is against the appellant's claim for the proceeds of the veteran's insurance policy. FINDINGS OF FACT 1. The veteran executed and forwarded a change of beneficiary in February 1976 designating Janice as the beneficiary of his National Service Life Insurance Policy. 2. The veteran did not execute another change of beneficiary after February 1976. 3. The veteran died in December 1991. CONCLUSIONS OF LAW 1. The last validly designated beneficiary under the veteran's National Service Life Insurance policy was Janice. 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. §§ 8.46(b), 8.47 (1993). 2. The appellant is not entitled to the proceeds of the veteran's National Service Life Insurance Policy. 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. §§ 8.46(b), 8.47 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Many of the basic facts in this case are not in dispute. An application for National Service Life Insurance dated in January 1943 show that the veteran designated his mother as the principal beneficiary. A change of beneficiary form dated in January 1948 shows that the veteran designated his wife (at that time) Sara as the principal beneficiary with his mother designated as the contingent beneficiary. A designation of beneficiary form dated in February 1973 shows that the veteran designated his mother as the beneficiary of his National Service Life Insurance policy. In April 1976, the veteran executed and forwarded a change of beneficiary form designating his wife (at that time) Janice as the beneficiary of his National Service Life Insurance policy. The veteran and Janice were divorced in July 1982. The veteran married the appellant in August 1982. The veteran died in December 1991. The veteran's claims file and his insurance file do not contain any more recent designation of beneficiary forms. A search by the RO also failed to turn up a more recent designation of beneficiary form. Under the terms of the insurance policy and the law and regulations applicable thereto, the insured may name any person as the beneficiary of his National Service Life Insurance Policy. See 38 U.S.C.A. § 1917 (West 1991); 38 C.F.R. § 8.46(a) (1993). The insured also has the right at any time, without knowledge or consent of the beneficiary, to cancel the designation or to change the beneficiary. See 38 C.F.R. § 8.47 (1993). That regulation further provides that, "A change in beneficiary 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 his agent, and must contain sufficient information to identify the veteran. Whenever practicable, such notices shall be given on blanks prescribed by the Department of Veterans Affairs." In Young v. Derwinski, 2 Vet.App. 59 (1992), the United States Court of Veterans Appeals (Court) held that attempts by a veteran to change beneficiaries are to be liberally construed so as to effectuate the veteran's intent, with a two prong test being used to determine if an actual change of beneficiaries has taken place. First, there must be some evidence of an intention the part of the veteran to change beneficiary, and second, there must be some overt act done to effectuate that intent. Also see Jones v. Brown, 6 Vet.App. 388 (1994). Nevertheless, after considering all of the evidence of record under the standards set forth above, the Board is of the opinion that the appellant is not entitled to the proceeds of the veteran's National Service Life Insurance policy. In reaching this conclusion, the Board has considered a photocopy of a note submitted by the appellant which she alleges was written by the veteran. The note reads as follows: 9-12-82 Sent change of beneficiary to V.A. Ins. The Board finds that this note is insufficient to show that the veteran had an intention to name the appellant as the beneficiary of his National Service Life Insurance Policy, and did an overt act to effectuate such an intention. The note is unsigned and there is no proof that the note was in fact written by the veteran. Furthermore, even if actually written by the veteran, the note does not contain any references to the appellant. It is possible that if the veteran intended to change his beneficiary, he could have intended to designate someone other than the appellant, such as his mother who had previously been the designated beneficiary. Therefore, the note provides little support for the appellant's claim. The Board also notes that the copy of the veteran's will which is of record also fails to provide support for the appellant's claim. The will does not contain any references to insurance policies. Furthermore, a change of beneficiary by last will and testament is specifically prohibited by VA regulations. See 38 C.F.R. § 8.46(b) (1993), which provides that a beneficiary designation, but not a change of beneficiary, may be made by last will and testament duly probated. The Board also notes that the property settlement agreement from the veteran's divorce from Janice includes a provision that provides that "each party renounces and relinquishes all claims...including without limitation the right to take as a beneficiary of any insurance policy or policies of insurance..." It appears that the provision was simply inserted into the property settlement agreement to make it clear that the veteran had a right to make a beneficiary change in his insurance policies and that Janice would have no right to contest such a change. This provision, however, does not act to change the veteran's beneficiary under his National Service Life Insurance Policy. Furthermore, the Board notes that the property settlement agreement does not contain any references to the appellant, and cannot, therefore, be considered to be a document in which the veteran designated the appellant as his beneficiary. Finally, the Board notes that the absence of a change of beneficiary form in the veteran's claims file or insurance file is very strong, objective evidence that the veteran did not forward such a form to the VA. The Board notes that there is a presumption of regularity that leads to the conclusion that if the veteran had forwarded such a form, the form would have been delivered by the postal service and added to the veteran's claims file in the regular course of business. In summary, there is insufficient evidence to show that the veteran had an intention or made any overt act to effectuate an intent to designate the appellant as his beneficiary under his National Service Life Insurance Policy. The last validly designated beneficiary under the veteran's National Service Life Insurance policy was Janice. The veteran did not execute another change of beneficiary after February 1976. Accordingly, the Board concludes that the appellant is not entitled to the proceeds of the veteran's National Service Life Insurance Policy. ORDER Entitlement of the appellant to the proceeds of the veteran's National Service Life Insurance Policy is denied. This constitutes the final administrative denial of this claim. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board.