BVA9507272 DOCKET NO. 93-08 805 ) DATE ) ) THE ISSUE Entitlement to the proceeds of the veteran's National Service Life Insurance (NSLI) Policy, FV [redacted]. WITNESSES AT HEARING ON APPEAL The appellant and his brother 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 May 1991 administrative determination of the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO), which denied the benefit sought on appeal. The appellant appealed that determination to the BVA, and the case was received at the Board in April 1993. The veteran, who had active service from April 1943 to November 1963, died in May 1990. The appellant is the veteran's son and represents the interests of a trust created by the veteran, and the appellee is the veteran's daughter. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that the RO was incorrect in not granting the benefit sought on appeal. The appellant maintains, in substance, that the veteran created a trust for his assets and that the NSLI policy was included as one of the assets of the trust. As such, the proceeds of the NSLI policy should be paid to the trust. The appellant also contends that the veteran did not sign the last beneficiary designation of record dated in August 1979, that the veteran's signature on that beneficiary designation was procured through coercion, and that a subsequent application for insurance evidenced the veteran's intent to change the beneficiary designation. The appellant also points out that the appellee assigned all interest in the veteran's estate, and therefore, should not be entitled to the proceeds of the NSLI policy. The appellant also questioned the interest of a Congressman in this case and wondered what kind of "conspiracy" there may be between the VA and the Congressman. Transcript at 4. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim to the proceeds of the veteran's NSLI policy, FV [redacted]. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The last beneficiary designation of record for the veteran's NSLI policy was dated in August 1979 and was signed by the veteran. 3. The August 1979 beneficiary designation does not name the appellant or any trust as the beneficiary for the NSLI policy. CONCLUSION OF LAW The requirements for the appellant's entitlement to the proceeds of the veteran's NSLI Policy, FV [redacted], have not been met. 38 U.S.C.A. §§ 1917, 5107 (West 1991); 38 C.F.R. §§ 8.46, 8.47 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the time of the veteran's death in May 1990, he had in force a $10,000 NSLI policy, with a total amount payable on that policy of $10,205.90. The last recorded beneficiary designation is dated in August 1979 and names the appellee as the principal beneficiary of the proceeds for the insurance policy. The RO has determined that as the last-named beneficiary of the veteran's NSLI policy, the appellee, is entitled to the proceeds. The appellant has appealed that decision. The Board affirms the RO's decision. The appellant, on behalf of a trust created by the veteran in October 1985, has raised several contentions in support of his contention that the proceeds of the NSLI policy are payable to the trust in the veteran's estate. It has been contended that: (1) the veteran did not sign the August 1979 beneficiary designation; (2) the appellee coerced the veteran into signing the August 1979 beneficiary designation; (3) a beneficiary designation on an application for Service Disabled Veterans' Insurance (RH) evidenced the veteran's intent to change the beneficiary designation for his NSLI policy; and (4) the appellee has assigned all interest in the veteran's estate to the beneficiaries of the trust. The appellant has also suggested that an unspecified conspiracy exists between the VA and a Member of the Congress of the United States, specifically, a Member of the House of Representatives, apparently on behalf of the appellee. Suffice it to point out that the appellant has not produced any evidence whatsoever of such a conspiracy, and the Board would note that the Congressman merely expressed interest in the case on behalf of a constituent who was experiencing difficulty with a Government agency, in this case, the VA. No doubt the appellant's Congressional representatives would have expressed similar interest in the case to the VA had the appellant chosen to contact them. With respect to the more specific contentions and allegations, the appellant reported that he had obtained an independent handwriting analysis of the signature on the August 1979 beneficiary designation which had concluded that the veteran did not sign that document. In response to this contention, the RO, in a February 1992 letter, requested that the appellant submit the handwriting analysis report, and submitted the August 1979 beneficiary designation to the Office of the VA Inspector General for an analysis. The appellant has not submitted the report of the independent handwriting analysis report, despite being provided sufficient time to do so, and the laboratory report from the Office of the Inspector General concluded that the veteran was the author of the signature on the August 1979 beneficiary designation. In the absence of evidence to refute the April 1991 laboratory report from the Office of the Inspector General, the Board concludes that there is no merit to the appellant's contention that the veteran did not sign the beneficiary designation in question. Similarly, the appellant has submitted no evidence to substantiate the contention that the veteran's signature on the August 1979 beneficiary designation was procured through coercion of the veteran by the appellee. In the absence of such evidence, this contention also has no merit. The record reflects that in January 1982, the veteran filed an application for Service Disabled Veteran's (RH) Insurance. On that application, the veteran designated his five children, who were also the beneficiaries of the later-created trust. It is contended that this application, with the beneficiary designation, was evidence of the veteran's intent to change the beneficiary designation on his NSLI policy. The application for RH insurance was disapproved because the veteran already had in force the maximum amount of Government life insurance. Nevertheless, even had the application been approved, the beneficiary designation on the application for RH insurance would have had no effect on the NSLI policy because the two were separate and distinct insurance policies. Simply put, it cannot be assumed that because a change of beneficiary designation was received for one policy, that it would pertain to a second insurance policy. As for the assignment of the appellee's interest in the veteran's estate, such an assignment has no bearing on the entitlement to the proceeds of the veteran's NSLI policy because those proceeds are not part of the veteran's estate. The veteran specified a beneficiary for the proceeds of his NSLI policy, and as such, the proceeds are not payable to the estate. Lastly, it is primarily contended that the trust the veteran created was sufficient to change the beneficiary designation on the veteran's NSLI policy because the policy was included as an asset of the trust. The veteran does have the absolute right to change the beneficiary designation on his NSLI policy, 38 U.S.C.A. § 1917(a) (West 1991); 38 C.F.R. § 8.46(a), 8.47 (1994), including designating a trust or his estate as the beneficiary. However, "[a] change of 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 insured." 38 C.F.R. § 8.47 (1994). In this case, the trust instrument, which included the veteran's NSLI policy in Item 5 of Exhibit A of the trust instrument, was in writing and signed by the veteran in October 1985. However, a copy of that trust, or any information referring to the trust, was not forwarded to the VA until June 1990, following the veteran's death. While the veteran may have intended that the NSLI policy be included in the trust, the VA must pay the proceeds of that policy to the last effective beneficiary designation of record. To determine whether a change in beneficiary has occurred, "[f]irst, there must be evidence of an intention on the part of the veteran to change the beneficiary,and second, there must be some overt act done to effectuate that intent." Jones v. Brown, 6 Vet.App. 388, 390 (1994) citing Young v. Derwinski, 2 Vet.App. 59, 61 (1992). What is missing in the instant case is an overt act by the veteran effectuating his intention. Simply put, the veteran failed to notify the VA of his intention to change the beneficiary designation for his NSLI policy. It has been contended that the veteran did notify the VA of his intention to change the beneficiary designation. At a hearing, the appellant submitted a letter dated in October 1985 signed by his brother which indicates that the insurance policy was included as an asset of a recently created trust and requested that any necessary changes be made. The appellant testified that: "We're not sure who it was mailed to, I'm pretty sure it went down to the local VA office down on Broadway in Sacramento which is across from the fairgrounds...." However, this unaddressed letter of October 22, 1985, was not signed by the veteran and was never received by the VA. Furthermore, had the veteran desired to change his beneficiary designation by means of the October 1985 letter, the veteran was aware from previous changes of beneficiary designations that acknowledgment of the change was returned to him after the change was made. The Board would also note that the October 1985 letter does not indicate that any signed trust was included with the letter. Accordingly, the Board finds no evidence of intention and action on the veteran's part so as to effectuate a change of beneficiary for the veteran's NSLI insurance proceeds. Based on the discussion above, the Board finds that the appellant is not entitled to the proceeds of the veteran's NSLI policy and that the RO correctly determined that the appellee, the last-named beneficiary of record, was entitled to those proceeds. ORDER The appellant's entitlement to the proceeds of the veteran's NSLI Policy, FV [redacted] is denied. JACQUELINE E. MONROE 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, } 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.