Citation Nr: 0812938	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  06-10 824A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Atlanta, 
Georgia


THE ISSUE

Entitlement to enrollment in a higher priority group for VA 
healthcare benefits.

ATTORNEY FOR THE BOARD

Kelli A. Kordich, Counsel


INTRODUCTION

The veteran served on active duty from June 1969 to March 
1973.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2005 decision of the VA 
Health Eligibility Center (HEC) in Atlanta, Georgia, that 
determined that the veteran was not eligible for treatment in 
the VA health care system without paying a co-payment for the 
period beginning December 1, 2004.  


FINDING OF FACT

The veteran's household income exceeds the income threshold 
for entitlement to treatment in the VA health care system 
without a co-payment requirement for the period beginning 
December 1, 2004.


CONCLUSION OF LAW

The criteria for treatment in the VA health care system 
without a co-payment requirement for the period beginning 
December 1, 2004, have not been met.  38 U.S.C.A. §§ 1705, 
1710, 1722, 5107 (West 2002 & Supp. 2007); 38 U.S.C.A. 
§§ 17.47, 3.271, 3.272 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to notify and assist

Under the VCAA, VA has a duty to notify a claimant of the 
information and evidence needed to substantiate and complete 
a claim, and of what part of that evidence the claimant is to 
provide and what part VA will attempt to obtain for the 
claimant.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 
C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002).  VA must also advise the claimant to 
submit any additional information in his possession that 
would support the claim.  Pelegrini v. Principi (Pelegrini 
II), 18 Vet. App. 112 (2004).  In this case, VCAA notice was 
provided to the veteran in 2006 correspondence.

Under the VCAA, VA also has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  38 
U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 
(2007).  In this case, there is no indication of any 
outstanding private evidence, nor is there any indication 
that outstanding Federal department or agency records exist 
that should be requested.  38 U.S.C.A. § 5103A(b),(c)3 (West 
2002 & Supp. 2007); 38 C.F.R. § 3.159(c)(1), (2) (2007).  
Moreover, given the nature of the issue on appeal, a VA 
medical examination is not necessary to resolve the appeal.  
See 38 U.S.C.A. § 5103(d)(1) (West 2002 & Supp. 2007); 38 
C.F.R. § 3.159(c)(4) (2007).  For the reasons set forth 
above, and given the facts of this case, the Board finds that 
no further notification or development action is necessary in 
this case.

Notwithstanding the above, as set forth in more detail below, 
the pertinent facts in this case are not in dispute.  Rather, 
resolution of this appeal hinges on the application of the 
law rather than on the weighing of the evidence.  Under such 
circumstances, any failure to meet VCAA's duty to assist and 
notify requirements is harmless error.  See Valio v. 
Principi, 17 Vet. App. 229 (2003).

II.  Pertinent Law and Regulations

Under applicable statute, VA shall furnish hospital care and 
medical services to any veteran who is unable to defray the 
expenses of necessary care as determined under 38 U.S.C.A. § 
1722(a).  38 U.S.C.A. §§ 1710(a)(2)(G).

For the purposes of 38 U.S.C.A. § 1710(a)(2)(G), a veteran 
shall be considered to be unable to defray the expenses of 
necessary care if his attributable income is not greater than 
a specified income threshold.  38 U.S.C.A. § 1722(a)(3).  
Effective January 1, 2004, the income threshold for a veteran 
with two dependents was $32,747.

Determinations with respect to attributable income shall be 
made in the same manner, including the same sources of income 
and exclusions from income, as determinations with respect to 
income are made for determining eligibility for pension under 
38 C.F.R. §§ 3.271 and 3.272 of this title.  The term 
"attributable income" means income for the calendar year 
preceding application for care, determined in the same 
manner, in which an income determination is made for pension 
purposes under 38 U.S.C.A. § 1521.  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 shall be 
counted as income during the 12-month annualization period in 
which received (emphasis added) unless specifically excluded 
under 38 C.F.R. § 3.272. 38 C.F.R. § 3.271.

Medical expenses in excess of five percent of the maximum 
income rate allowable, which have been paid, may be excluded 
from an individual's income for the same 12-month 
annualization period; to the extent they were paid.  38 
C.F.R. § 3.272(g)(1)(iii).

III.  Facts and Discussion

In the instant case, pertinent information from the veteran's 
claims file shows that he is a nonservice-connected veteran 
and has no dependents.

According to information provided by the HEC and not disputed 
by the veteran, on December 1, 2004 he applied for VA health 
care by submitting a VA Form 10-10EZ, Application for Health 
Benefits.  He was below Means Test threshold criteria which 
made him eligible for cost-free care.

An Income Verification Match process established a case 
number for verification that gross household income did not 
exceed the 2003 VA National Means Test threshold of $25,162, 
for a veteran with no dependents.  

Social Security Administration verified the veteran's earned 
income in the amount of $53,681(W-2).  The Internal Revenue 
Service verified the veteran's unearned interest income 
totaling $186 (1099-INT).  The total gross household income 
reported for 2003 was $53,867.

In September 2005, an Initial Income Verification Match (IVM) 
letter was sent to the veteran.  The letter gave the veteran 
the opportunity to verify or correct reported income.  

In October 2005 a follow-up letter was sent to the veteran 
due to non-response to the initial IVM letter.  In November 
2005, a signed VA Form 10-10EZR, "Health Benefits Renewal," 
was received verifying income in the amount of $20,000.  The 
veteran also submitted a letter stating he was terminated 
from his job, and he no longer had insurance.  The veteran 
also included in this letter the issues regarding his Agent 
Orange Registry.  A Checklist Letter was mailed to the 
veteran for proof of his verified income.

In December 2005, a signed 10-10EZR was received now 
verifying $48,941 and $161.95 for paid medical expenses.  The 
veteran also submitted a signed copy of his 2003 tax return 
verifying income in the amount of $49,963.  In December 2005, 
the veteran was notified that his household income exceeded 
the income threshold for entitlement to treatment in the VA 
health care system without a co-payment requirement for the 
period beginning December 1, 2004

As an initial matter, there is no disputing that the 
veteran's verified income for 2003 exceeded the VA Means Test 
threshold for that year.

The veteran's argument is that the denial was based on his 
income from 2003, when he had a full time job, and his income 
for 2004 and 2005 were below the thresholds listed for a 
veteran with no dependents.  While the Board has considered 
this argument, it is simply not in conformity with VA's law 
and regulations.  Just as the veteran's income was counted in 
the year he received it, 2003, for tax reporting purposes 
with the IRS, so too must it be considered income in 2003 for 
VA reporting purposes as well.  This is in compliance with 38 
C.F.R. § 3.271 set forth above stating, in general, that 
payments of any kind from any source shall be counted as 
income during the 12-month annualization period in which 
received.

While the Board is sympathetic to the veteran's argument and 
circumstances in this matter, it is bound by the statutes and 
regulations governing entitlement to VA benefits. 38 U.S.C.A. 
§ 7104(c).  In a case such as this one, where the law and not 
the evidence is dispositive of the issue before the Board, 
the claim must be denied because of the lack of entitlement 
under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).  Moreover, because the law, rather than the facts of 
this case are controlling, the provisions of 38 U.S.C.A. § 
5107(b) are not for application.


ORDER

Entitlement to VA health care without a co-payment 
requirement for a period beginning December 1, 2004, is 
denied.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs