Citation Nr: 1441503 Decision Date: 09/17/14 Archive Date: 09/23/14 DOCKET NO. 11-09 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Health Eligibility Center in Atlanta, Georgia THE ISSUE Whether the change of the Veteran's means test eligibility category from exempt to required, and possible copay billing for VA healthcare and prescriptions received for the period of March 24, 2008 through March 23 2009, was proper. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1970 to August 1971, according to VA records. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 administrative decision of the Department of Veterans Affairs (VA) Health Eligibility Center (HEC) in Atlanta, Georgia, which arose out of the Veteran's eligibility application filed at the West Palm Beach, Florida VA Medical Center in March 2008. The Veteran was scheduled for a Travel Board hearing, as he requested, in June 2013; however, he did not appear for the hearing. He indicated in a July 2014 statement that he was unable to appear for a hearing due to work-related obligations. Therefore, his hearing request is considered withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND According to the statement of the case in February 2011, the Veteran filed a VA Form 10-10EZR on March 24, 2008, wherein he reported that his income was below the Means Test Threshold (MTT) criteria, making him eligible for cost-free VA healthcare. Thereafter, VA conducted an Income Verification Match (IVM) in December 2009, which showed that the Veteran's gross household income for calendar year 2007 exceeded the applicable income thresholds. VA law provides that hospital care and medical services shall be furnished by VA to any veteran who is unable to defray the expenses of necessary care, meaning that his attributable income is not greater than a specified income threshold. 38 U.S.C.A. §1710(a)(2)(G), 1722(a)(3). For 2007, the VA National Means Test threshold for a nonservice-connected veteran with zero dependents (as here in this case) to obtain free VA healthcare was $28,429; and according to the HEC for 2007 the VA Geographic Means Test threshold for the Veteran's residency location was $34,350. Moreover, with certain exceptions, VA requires a veteran to pay a copayment for treatment of a nonservice-connected disability; one exception is for veterans whose annual income does not exceed the maximum annual rate of pension which would be payable if such veteran were eligible for pension. 38 U.S.C.A. § 1722A(a). As applicable in this case, the maximum income level for cost-free prescriptions/travel benefits for the Veteran was $11,181. The Veteran's attributable income in 2007 (the prior calendar year) must be used to determine his copay status as of his March 24, 2008 application. 38 U.S.C.A. § 1722(f)(1); 38 C.F.R. § 17.47(d)(4). In general, payments of any kind from any source will be counted as income in the 12-month annualization period they were received, unless specifically excluded under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271. In a March 2020 statement, the Veteran maintained that he has submitted evidence to include an individual income tax return to show that his adjusted gross income for 2007 did not exceed $10,267. He asked that VA refer to "line 43" of his tax return to resolve the dispute. The Veteran's tax return is not contained in the VA Health Administration (VHA) copay folder before the Board, nor is his VA Form 10-10EZR that was filed on March 24, 2008. Within the copay folder, there is a section entitled "IVM Case History" which provides comments throughout the development of the claim. On February 12, 2010, it was written that the Veteran's Form 1040 tax return was received, along with additional evidence (e.g., a statement), which showed his total household income for 2007. The HEC had requested the Veteran in the previous month to submit complete tax information for 2007, because he had furnished an incomplete tax return along with HEC Form 200-1A, Income Verification Response, which also is not of record. The HEC should associate all missing evidence in the copay folder. On his substantive appeal form received in March 2011, the Veteran asserted that in considering his household income for 2007, VA failed to deduct his business expenses for 2007, which put him over the means test threshold. He explained that as a small business owner he had to pay expenses for materials before earning an income. Under VA law when computing income, gross income from business, as reduced by the necessary operating expenses such as the cost of goods sold, or expenditures for rent, taxes, and upkeep, or costs of repairs or replacements, is counted as income for VA purposes. 38 C.F.R. § 3.271(c). The Veteran should have an opportunity to submit evidence of his business expenses that may reduce his gross business income. Lastly, there appears to be a discrepancy in the HEC's decisions regarding the Veteran's eligibility status for VA healthcare and copay requirements from March 24, 2008 through March 23 2009. In its February 2010 decisional letter, the HEC notified the Veteran that his eligibility status had not been changed based on his household income for 2007 but that he would be charged for copays for medications supplied by VA. This letter mirrors the case comments dated on February 12, 2010, which reflect that the Veteran's total household income was below the means test threshold for cost-free VA healthcare but not below the threshold for cost-free prescriptions provided by VA. Then, the statement of the case issued to the Veteran in February 2011, the HEC cited to numerical figures in its decision rationale to show how the Veteran's income was in excess of the means test threshold for cost-free VA healthcare, reflecting a change in his healthcare eligibility status such that copays were required. In other words, in changing the Veteran's means test eligibility category from exempt to required, the HEC has not clearly articulated the threshold that was exceeded, or indicated whether copayments may be required of the Veteran for all healthcare or just prescription medications. Accordingly, the case is REMANDED for the following action: 1. Associate the following documents with the Veteran's VHA copay folder: (a). VA Form 10-10EZR, received on March 24, 2008; (b). HEC Form 200-1A, received in January 2010; and (c). the documents received from the Veteran in February 2010 (as noted in the "IVM Case History" comments) to include his complete 2007 Individual Income Tax Return and associated documents as well as other statements pertaining to his 2007 income/losses. If the records are unavailable because they have been lost or destroyed, notify the Veteran and request that he furnish any copies of the missing documents in his possession. 2. Request the Veteran to provide further information as to his attributable income for calendar year 2007, to include evidence of any allowable deductions or exclusions under 38 C.F.R. §§ 3.271 and 3.272, such as allowable business expenses that may reduce gross business income. 3. After completion of the foregoing development, the HEC should readjudicate the claim, providing clear reasons and bases for any findings as to what, if any, means test threshold was exceeded, and what VA healthcare services (all healthcare or just prescription medications) may require a copayment of the Veteran for the period of March 24, 2008 through March 23, 2009. If any benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the matter to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Nathaniel J. Doan Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).