BVA9505695 DOCKET NO. 93-11 048 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether the veteran is eligible for Service Disabled Veterans Insurance under 38 U.S.C.A. § 1922(a) (West 1991). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran had active service from September 1948 to November 1949 and from October 1950 to November 1951. This appeal arises from an April 1992 determination that the veteran was not eligible for Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) (West 1991) on the basis that his application had not been submitted within one year of the date the Department of Veterans Affairs (VA) had notified him that service connection had been granted for a disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that when he was awarded service connection in January 1955 he was not informed of his right to obtain RH insurance. He asserts that on each of the subsequent re- evaluations and re-ratings no reference was made to the availability and possible entitlement to this insurance. He further asserts that it was not until he was rated totally disabled that he was advised of the possibility of this insurance. DECISION OF THE BOARD The Board of Veterans' Appeals (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 veteran's claims files. 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 veteran is not eligible for Service Disabled Veterans Insurance. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the originating agency. 2. Service connection for a duodenal ulcer was granted by rating action in January 1955. A non-compensable disability evaluation was assigned, effective November 2, 1951, and a 10 percent disability evaluation was assigned, effective December 12, 1954. A schedular evaluation of 100 percent is currently in effect for post-gastrectomy syndrome with psychophysiological reaction. 3. An application for Service Disabled Veterans Insurance was received from the veteran in February 1992. CONCLUSION OF LAW As a grant of service connection for a qualifying disability was not established within two years prior to the date of application, the veteran does not meet the eligibility criteria required for Service Disabled Veterans Insurance. 38 U.S.C.A. § 1922(a); 38 C.F.R. § 8.0 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has applied for RH insurance under 38 U.S.C.A. § 1922(a). This statute provides, in pertinent part, that any person who is released from the service, under other than dishonorable conditions on or after April 25, 1951, and is found by the VA to be suffering from a disability or disabilities for which compensation would be payable shall, upon application in writing made within two years from the date service connection of such disability is determined, be granted insurance. The record reflects that the veteran was granted service connection for a duodenal ulcer in a January 1955 rating action. In a letter dated January 20, 1955, the veteran was notified of the award of service connection for a duodenal ulcer and of the disability rating assigned. At the bottom of the letter there was a notation indicating that an insurance form had been enclosed. The initial application for RH insurance was received from the veteran in February 1992. While the veteran contends that, when he was awarded service connection in January 1955 he was not informed of his right to obtain RH insurance, the record shows that the insurance form was to be sent to the veteran when he was initially notified of the grant of service connection. In view of the notation in the January 1955 letter, the Board concludes that the veteran received proper notification of the availability of RH insurance. Principles of administrative regularity dictate a presumption that government officials have properly discharged their official duties. See Saylock v. Derwinski, 3 Vet.App. 394 (1992). The veteran has also contended that on each of the subsequent re- evaluations and re-ratings no reference was made to the availability and possible entitlement to this insurance. This assertion is no doubt accurate as the veteran has only been granted service connection for the gastrointestinal disability. The fact that a different rating was assigned for his service- connected disability does not change the eligibility requirements. The VA General Counsel, in O.G.C. Precedent 77-90 (July 18, 1990) discusses these eligibility requirements: [T]he regulation was amended in part to provide that, retroactive to April 25, 1951, written application for SDVI must be submitted within one year (now two years) from the date of service connection for "any disability" (emphasis added) is established. 38 C.F.R. § 8.0(b)(1)(iii)...On July 9, 1963, shortly after the issuance of the revised regulations, the Deputy Director for Underwriting, Accounts and Insurance Claims, in a memorandum to the Manager of the VA's St. Paul Insurance Center, interpreted the regulation to apply only "to cases where the veteran is given more than one rating of service-connection following his last discharge from service and the ratings are for different disabilities. It does not extend the time in cases where the second or subsequent ratings are reratings of the same disability or disabilities." We understand this interpretation to mean only that a new application period is not provided where a different percentage rating is applied to the same identified disability or the same disability is given a different name (emphasis added). Having reviewed the record, the Board finds that the veteran's current application for RH insurance should be denied as the eligibility criteria have not been satisfied. 38 U.S.C.A. § 1922(a); 38 C.F.R. § 8.0. ORDER The veteran is not eligible for Service Disabled Veterans Insurance under 38 U.S.C.A. § 1922(a). WAYNE M. BRAEUER 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.