UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 11-3814

PATRICIA A. MARTIN, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued December 13, 2013 Decided February 28, 2014)

 

Andrew M. Bernie and Martin V. Totaro, of Washington, D.C., for the appellant.

Thomas E. Sullivan, with whom Will A. Gunn, General Counsel; David L. Quinn, Acting

Assistant General Counsel; and Gayle E. Strommen, DeputyAssistant General Counsel, were on the

brief, all of Washington, D.C., for the appellee.

Before HAGEL, SCHOELEN, and BARTLEY, Judges.

SCHOELEN, Judge: The appellant, Patricia A. Martin, the widow of veteran John Martin,

appeals, through counsel, an October 20, 2011, Board of Veterans' Appeals (Board) decision that

denied entitlement to Supplemental Service Disabled Veterans' Insurance (Supplemental S-DVI)

under 38 U.S.C. § 1922A. See Record (R.) at 3-11. 

This panel was convened to decide an issue of first impression before this Court. 

Specifically, whether the beneficiary of a deceased veteran can be eligible for supplemental life

insurance under 38 U.S.C. § 1922A when the veteran did not file for S-DVI under 38 U.S.C. § 1922

during his lifetime. The Court holds that in accordance with the plain language of the statute, the

grant of insurance under 38 U.S.C. § 1922(b) is treated, by operation of law, as an award under

38 U.S.C. § 1922(a). However, the appellant is not entitled to an award of Supplemental S-DVI
under 38 U.S.C. § 1922A because the veteran did not qualify for a waiver of premiums under

38 U.S.C. § 1912.1

I. BACKGROUND 

The veteran, John E. Martin, served in the U.S. Marine Corps from August 1968 to August

1970 and from February 1985 to December 1986. R. at 537-38. 

In August 2005, the veteran was seen for an annual physical examination. R. at 184-89. The

examiner noted that the veteran had lost 30 pounds, had jaundice, and that diabetes was developing. 

Id. A computed tomography scan revealed a mass in the veteran's pancreas. R. at 185-86. After the

veteran underwent exploratory surgery, his doctors determined that he had inoperable pancreatic

cancer. Id. 

Laterin August 2005, the veteran applied for disability compensation for diabetes associated

with herbicide exposure, entitlement to non-service-connected pension, entitlement to special

monthly pension based on the need for aid and attendance, disability compensation for pancreatic

cancer, and disability compensation for multiple sclerosis. R. at 153. A January 2006 VA

compensation and pension examiner opined that the veteran's diabetes was "as likely as not" the

result of herbicide exposure "on the basis of presumption." R. at 162. On December 31, 2005, the

veteran entered hospice. R. at 99.

On February 10, 2006, the regional office (RO) granted the veteran disability compensation

for diabetes associated with herbicide exposure with a 20% disability rating. R. at 153-58. The

veteran was also granted a non-service-connected pension and a special monthly pension based on

the need for aid and attendance. Id. However, the RO denied disability compensation for the

veteran's pancreatic cancer. Id.

On February 15, 2006, the veteran's physician, Dr. Robert Wadleigh, explained in a letter to

the RO that the veteran's diabetes was directly related to his pancreatic cancer because "his pancreas

had to work harder to produce insulin[,] which caused a direct link to the unresectable pancreatic

"Waiver of premiums" or "total disability waiver" refers to a veteran's ability to have 1

premium payments for S-DVI waived while he or she is continuously totally disabled. 38 U.S.C.

§ 1912. 

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cancer." R. at 54. The next day, based on the letter from Dr. Wadleigh, the RO granted the veteran

100% disability compensation for his pancreatic cancer as secondary to his service-connected

diabetes. R. at 129-33. The RO mailed the letter informing the veteran of its decision, five days

later, on February 21, 2006. R. at 125. 

On February 22, 2006, the veteran died from his pancreatic cancer. R. at 53. According to

the appellant, she did not receive the rating decision in the mail until "four or five days" after the

veteran's death. R. at 19. A triage nurse at the veteran's hospice later explained that the veteran was

"unable to conduct his daily affairs in the last few days of his life due to high doses of medication."

R. at 96. 

During his lifetime, the veteran did not apply for S-DVI. R. at 315. On February 27, 2006,

the appellant submitted an application seeking both S-DVI and Supplemental S-DVI on behalf of

her husband. R. at 51-52, 104-05. In March 2006, the RO sent the appellant a letter explaining that

they were unable to accept her application for S-DVI because it had to be "signed by the veteran and

received by the VA Insurance Service before the veteran's death." R. at 315. In April 2006, the RO

determined that the veteran's cause of death was service connected. R. at 112-15. On June 30, 2006,

the RO awarded the appellant gratuitous S-DVI under 38 U.S.C. § 1922(b). R. at 92-95. In its 2

decision, the RO found that the veteran had been mentally incompetent at death as a result of his

service-connected disability and that this prevented him from applying for S-DVI. Id. 

After receiving the June 2006 decision, the appellant contacted VA on multiple occasions

to express her belief that she was also entitled to Supplemental S-DVI. R. at 84, 304. VA

acknowledged the appellant's disagreement; however,it confirmed its decision to denySupplemental

S-DVI because the veteran had never applied for S-DVI during his lifetime. R. at 40-42, 46-47, 302-

03. 

In January 2011, the appellant testified before the Board that she believed she should be

entitled to supplemental life insurance because the veteran was 100% disabled when he died. R. at

 "Gratuitous S-DVI" is a term used by VA to reference insurance awarded to veterans' 2

beneficiaries in the event that the veteran is unable to apply for S-DVI as a result of mental

incapacity. 38 U.S.C. § 1922(a). 

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22. Her representative argued that VA failed to follow the language of the statute by failing to

determine whetherthe veteran was entitled to a waiver of premiums under section 1912. R. at 27-31.

On October 20, 2011, the Board issued the decision here on appeal. R. at 3-11. The Board

found that the RO granted the appellant a gratuitous S-DVI payment under 38 U.S.C. § 1922(b), but

that she was not entitled to a Supplemental S-DVI payment because

the [v]eteran never had a[n] [] insurance policy in effect under 38 U.S.C.A.

§ 1922(a). As is noted above, the [v]eteran must have had a[n] [] insurance policy

in effect under 38 U.S.C.A. § 1922(a) for an award of [supplemental] insurance [to]

be granted. 38 U.S.C.A. § 1922A(a). The Board further points out that, as a[n]

[insurance] policywas not in effect at the time of the [v]eteran's death, the criteria for

a waiver of premiums could not possibly have been met under 38 U.S.C.A. § 1912. 

Id. Accordingly, the Board finds the criteria for eligibility for [supplemental]

insurance have not been met, and that the claim must be denied. Id. 

R. at 7. 

The Board explained that an award of gratuitous insurance under 38 U.S.C. § 1922(b) did

not satisfy the criteria that insurance be in effect under 38 U.S.C. § 1922A. Then, the Board stated

that there may be "some confusion in this case" because of the language in section 1922(b) that "a

person otherwise qualified for [life] insurance who did not apply for such insurance will be deemed

to have applied for and been granted such insurance." R. at 8. The Board concluded that even

though the notification of the veteran's right to apply for life insurance was not received until after

his death, according to the statutes VA was unable to award Supplemental S-DVI. R. at 10. 

II. ANALYSIS

The primary issue in this case is the properinterpretation of interlocking statutory provisions

that govern the award of S-DVI and supplemental S-DVI for totally disabled veterans. S-DVI is a

life insurance benefit for veterans who have service-connected disabilities, but who are otherwise

in good health. Under section 1922(a), S-DVI is provided to veterans "suffering from a disability 3

or disabilities for which compensation would be payable if 10 per centum or more in degree" upon

"application in writing made within two years from the date service-connection of such disability is

determined by the Secretary and payment of premiums as provided in this subchapter." Section

See http://benefits.va.gov/insurance/s-dvi.asp (last visited Feb. 11, 2014). 3

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1922(b) provides that "[a]ny person who . . . was otherwise qualified for insurance under . . .

subsection (a) of this section," but who is found to have been mentally incompetent from a serviceconnected disability at the time of his or her death, "shall be deemed to have applied for and to have

been granted such insurance, as of the date of death." 

A veteran who is insured under S-DVI and has been granted a waiver of premiums for being

totallydisabled is eligible for supplemental insurance. See 38 U.S.C. § 1922A. Supplemental S-DVI

for totally disabled veterans is governed by 38 U.S.C. § 1922A, which states that Supplemental SDVI "shall be granted upon the same terms and conditions as insurance granted under section

1922(a) of this title," provided "the application is made for such insurance before the person attains

65 years of age." 38 U.S.C. § 1922A(c). Further, section 1922A also states that "supplemental

insurance in an amount not to exceed $30,000" is available for "[a]ny person insured under section

1922(a) of this title who qualifies for a waiver of premiums under section 1912 of this title." 

38 U.S.C. § 1922A(a).

Finally, section 1912, entitled "total disability waiver," states that payment of S-DVI

premiums may be waived during the continuous total disability of the insured. 38 U.S.C. § 1912(a). 

If an insured veteran dies without filing an application for waiver, the insured veteran's beneficiary

may do so within one year of the veteran's death. 38 U.S.C. § 1912(c). 

Ultimately, the appellant argues that she is entitled to an award of Supplemental S-DVI as

the beneficiary of her totally disabled veteran husband. However, the Court disagrees. 

A. Service Disabled Veterans' Insurance under 38 U.S.C. § 1922(b)

The Court must begin by determining the proper statutory interpretation of 38 U.S.C.

§ 1922(b). Section 1922(b) states:

Any person who . . . was otherwise qualified for insurance under . . . subsection (a)

of this section, but who did not apply for such insurance and who is shown by

evidence satisfactory to the Secretary (A) to have been mentally incompetent from

a service-connected disability, (i) at the time of release from active service, or (ii)

during any part of the two-year period from the date the service connection of a

disability is first determined by the Secretary . . . and (B) to have remained

continuously so mentally incompetent until date of death; and (C) to have died before

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the appointment of a guardian . . . shall be deemed to have applied for and to have

been granted such insurance, as of the date of death.

(emphasis added).

In reviewing an agency's "construction of the statute which it administers" the Court must

first ask whether "Congress has directly spoken to the precise question at issue." Chevron U.S.A.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If congressional intent is clear, the

agency and this Court must give effect to "the unambiguously expressed intent of Congress." Id.

However, if the Court determines that Congress has not addressed the question then "the question

for the court is whether the agency's answer is based on a permissible construction of the statute."

Id. According to this Court in Trafter v. Shinseki, 26 Vet.App. 267, 272 (2013):

Within the complex veterans benefit scheme, if VA's interpretation of the statute is

reasonable, the courts are precluded from substituting their judgment for that of VA,

unless the Secretary has exceeded his authority; the Secretary's action was clearly

wrong; or the Secretary's interpretation is unfavorable, such that it conflicts with the

beneficence underpinning VA's veterans benefits scheme, and a more liberal

construction is available that affords a harmonious interplay between provisions. 

Both the appellant and the Secretary argue that the language of the statute is plain and that

their interpretations are supported by congressional intent. Both parties agree that the veteran met

the requirements to be granted S-DVI insurance under section 1922(b). However, the controversy

is over the proper interpretation of the phrase "shall be deemed to have applied for and to have been

granted such insurance, as of the date of death" in section 1922(b)(1). 

The appellant asserts that under the plain meaning of section 1922(b) "the grant of insurance

under [s]ection 1922(b) is treated, by operation of law, as an award under [s]ection 1922(a)" because

the statute states that where the requirements are met, a veteran "shall be deemed to have applied for

and to have been granted" insurance under section 1922(a). Appellant's Brief (Br.) at 12. The

Secretary disagrees and responds that "the language does not expressly state that the terms or criteria

in § 1922(a) have been deemed to have been satisfied as [the a]ppellant suggests," but instead the

plain language states only that if someone was "otherwise qualified for S-DVI but who did not apply

for various listed reasons and who was shown to be mentally incompetent from a service-connected

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disability shall be deemed to have applied for and granted S-DVI as of the date of death." Secretary's

Br. at 12. 

The Court finds the Secretary's interpretation of the plain language unpersuasive. "Statutory

interpretation begins with the language of the statute, the plain meaning of which we derive from its

text and structure." McEntee v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir. 2005); see Sharp v.

Shinseki, 23 Vet.App. 267, 271 (2009); see also McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir.

2008); Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ( "Determining a statute's plain meaning

requires examining the specific language at issue and the overall structure of the statute." (citing

Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 403-05, (1988))), aff'd sub nom. Gardner v. Brown,

5 F.3d 1456 (Fed. Cir.1993), aff'd, 513 U.S. 115 (1994). A fundamental canon of statutory

construction is that the words of a statute are given "their 'ordinary, contemporary, common

meaning,' absent an indication Congress intended them to bear some different import." Williams v.

Taylor, 529 U.S. 420, 431 (2000) (quoting Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S.

202, 207 (1997)); see also Smith v. United States, 508 U.S. 223 (1993) (citing Perrin v. United

States, 444 U.S. 37, 42, 100 (1979) (stating that "unless otherwise defined, words [in a statute] will

be interpreted as taking their ordinary, contemporary, common meaning")); McGee, 511 F.3d at

1356; Trafter, 26 Vet.App. at 284. It is commonplace to consult dictionaries to ascertain a term's

ordinary meaning. See United States v. Rodgers, 466 U.S. 475, 479 (1984); McGee, 511 F.3d at

1356; Telecare Corp. v. Leavitt, 409 F.3d 1345, 1353 (Fed. Cir. 2005). According to Black's Law

Dictionary (8th ed. 2005), "deem" is defined as "[t]o treat (something) as if (1) it were really

something else, or (2) it had qualities that it does not have." 

The U.S. Court of Appeals for the First Circuit in P.R. Tel. Co., Inc. v. SprintCom, Inc. noted

that the word "deem" is "of common legal usage." 662 F.3d 74, 95 (1st Cir. 2011). It further

explained that the word "deem" "has been traditionally considered to be a useful word when it is

necessary to establish a legal fiction . . . by 'deeming' something to be what it is not." Id.

Likewise, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) in Cunningham v.

United States, 67 F.2d 714, 714-15 (5th Cir. 1933) noted that a grant of gratuitous insurance under

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the War Risk Insurance Act of 1917, a predecessor to S-DVI, was only a "gratuity in the sense that 4

no premium is exacted of the soldier whose case it fits," and that the holder of the insurance was

entitled

to the same rights and remedies, and governed by the same rules as contracts of

insurance issued on applications with the payment of premiums. The place where the

language is found, the fact that it is an integral part of the act granting war risk

insurance, the language itself "any person shall be deemed to have applied for and to

have been granted insurance," under the plainest principles of statutory construction

compels this conclusion. Any other would do the greatest violence to the act. 

Here, the language of the statute is clear. It states that a veteran who qualifies for insurance

under section 1922(a), but who did not apply for such insurance and who is shown to have been

mentally incompetent from a service-connected disability and to have remained mentally

incompetent until the date of death "shall be deemed to have applied for and to have been granted

such insurance, as of the date of death." The statute says nothing about "gratuitous insurance" or that

the insurance granted under section 1922(b) is to be treated differently than the insurance granted

under section 1922(a). Instead, it provides that if a veteran meets the requirements outlined in

sections 1922(a) and 1922(b) then that grant of insurance under section 1922(b) is treated, by

operation of law, as an award under section 1922(a). Consequently, under the facts of the case here,

legally the veteran applied for and was granted S-DVI under section 1922(a). 

However, the grant of insurance under section 1922(a) is not the end of the inquiry. Next,

the Court must analyze the language of sections 1922A and 1912 to determine whether the veteran

or the appellant is entitled to Supplemental S-DVI. 

B. Supplemental S-DVI under 38 U.S.C. § 1922A

Section 1922A states that "[a]ny person insured under section 1922(a) . . . who qualifies for

a waiver of premiums under section 1912 of this title is eligible, as provided in this section, for

supplemental insurance in an amount not to exceed $30,000." 

In pertinent part the War Risk Insurance Act of 1917 stated that "[a]ny person in the active 4

service on or after the sixth day of April 1917, who, while in such service . . . becomes or has

become totally and permanently disabled or dies or has died, without having applied for insurance,

shall be deemed to have applied for and to have been granted insurance." 

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Here, the language of the statute is also plain. Section 1922A outlines the requirements a

person has to meet to be entitled to Supplemental S-DVI. In accordance with the Court's holding

in Part A, the veteran is a person insured under section 1922(a). However, section 1922A also

requires a person to qualify for a waiver of premiums under section 1912. Of note, the language of

the statute requires only that the veteran qualify for a waiver of premiums, not that he apply for or

be in receipt of the waiver. See 38 U.S.C. §1922A(a). 

Section 1912(a) states that upon application by the insured, the payment of premiums on

insurance may be waived during the continuous total disability of the insured, which continues or

has continued for six consecutive months, if such a disability began "(1) after the date of the

insured's application for insurance, (2) while the insurance was in force under premium-paying

conditions, and (3) before the insured's sixty-fifth birthday." 

The appellant argues that her husband met the "substantive requirements" for a waiver of

premiums. See Appellant's Br. at 19. In her brief, she states that because the veteran qualified as

a matter of law for S-DVI under section1922(a) and his "pancreatic cancer rendered him totally

disabled[,] . . . he met the substantive requirements for [a] total disability waiver under [s]ection

1912" and consequently she should be awarded Supplemental S-DVI under section 1922A. Id. 

Despite the appellant's argument that the veteran met the substantive requirements for a total

disability waiver under section 1912, the Court holds that she is not entitled to an award of

Supplemental S-DVI because her husband did not meet all requirements for a total disability waiver

outlined in section 1912(a). First, the veteran's total disability began before the date of the 

application for insurance. The veteran was awarded 100% disability compensation in February2006

with an effective date of August 23, 2005. R. at 49-50. In accordance with the language of section

1922(b), the veteran was deemed to have applied for S-DVI on February 22, 2006, the date of his

death. R. at 53; see also 38 U.S.C. § 1922(b). Therefore, the veteran's total disability did not begin

"after the date of the insured's application for insurance" as the statute requires. See 38 U.S.C.

§ 1912. Second, the veteran's total disability did not begin "while the insurance was in force under

premium-paying conditions." Id. Here, the veteran's insurance was never in force under premiumpaying conditions because he was not awarded S-DVI until the date of his death. The veteran would

not have been required to pay premiums. Consequently, the veteran does not qualify for a total

9
disability waiver under section 1912; therefore, the veteran is not eligible for Supplemental S-DVI

and the Board's decision is affirmed. See 38 U.S.C. §§ 1912, 1922A. 5

Additionally, the Court notes that the last sentence of section 1922(a)states that in regard to

insurance issued under this section, "waivers of premiums pursuant to . . . section 1912 . . . shall not

be denied on the ground that the service-connected disability became total before the effective date

of such insurance." However, this does not change the Court's analysis. As discussed previously,

the veteran was ineligibile for a waiver under section 1912, not only because the veteran's total

disability did not begin after the date of his application for insurance, but also because his total

disability did not begin while the insurance was in force under premium-paying conditions. See 38

U.S.C. § 1912. The veteran did not meet the eligibility requirements for a waiver established in

section 1912. Consequently, the veteran would not have been denied a waiver of premiums because

his "service-connected disability became total before the effective date of" his S-DVI, but instead

because he was not eligible for one according to section 1912. 

6

The Court recognizes that it is generally not permitted to affirm the Board's decision on a

5

ground other than that relied on by the Board to support its decision. See Newhouse v. Nicholson,

497 F.3d 1298, 1301 (Fed. Cir. 2007) (citing Sec. & Exchange Comm'n v. Chenery Corp., 332 U.S.

194 (1947) and referring to the "Chenery doctrine"). To the extent that the Court's holding may be

construed as such, the Court notes that the Chenery doctrine is not implicated when "it is clear that

'the agency would have reached the same ultimate result' had it considered the new ground."

Fleshman v. West,138 F.3d 1429, 1433 (Fed. Cir. 1998) (quoting Ward v. Merit Sys. Prot. Bd.,

981 F.2d 521, 528 (Fed. Cir. 1992)). Courts of appeals are not required to remand a case to an

agency where remand would be futile: "To remand would be an idle and useless formality. Chenery

does not require that we convert judicial review of agency action into a ping-pong game." NLRB v.

Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion). In its decision, the Board

stated that "the criteria for a waiver of premiums could not possibly have been met under 38 U.S.C.

§ 1912" because an S-DVI policy was not in effect. R. at 7. Consequently, it is clear from this

language that the Board would have reached the same ultimate result had it fully considered whether

the veteran was entitled to a waiver of premiums under section 1912. 

The Court suggests that Congress may want to reconsider the language of 38 U.S.C. 6

§ 1922A because it excludes beneficiaries, such as the appellant, from receiving Supplemental SDVI because of a lack of a premium payment.

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III. CONCLUSION

The Board's October 20, 2011, decision AFFIRMED.

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