Citation Nr: 0908013 Decision Date: 03/04/09 Archive Date: 03/12/09 DOCKET NO. 06-37 244A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether or not all medical expenses reported for the year 2004 can be counted to reduce the amount of the Veteran's income for non-service-connected pension purposes, and to resolve the issue of an overpayment. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The appellant had active duty from March 1952 to March 1955. This case comes to the Board of Veterans' Appeals (Board) from a June 2005 decision of the Department of Veterans Affairs (VA), St. Paul, Minnesota Regional Office (RO) Pension Maintenance Center (PMC). In August 2008, the Board remanded the claim for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In 2003, the RO granted VA improved pension benefits. 2. In the Veteran's "improved pension eligibility verification report" (VA Form 21-0516-1) for the year 2004, he claimed medical expenses that included $161.95 for "repair of door," $392.76 for "fire & alarm ambulance call," $2,073.35 for "control environment," $272.16 for "assorted clothing," and $1,080 for "food on wheels." 3. The Veteran's expense of $2,073.35 for "controlled environment" may be classified as a medical expense. 4. The Veteran's expenses of $161.95 for "repair of door," $392.76 for "fire & alarm ambulance call," $272.16 for "assorted clothing," and $1,080 for "food on wheels," may not be classified as medical expenses. CONCLUSION OF LAW 1. The Veteran's claimed expense of $2,073.35 for "controlled environment" is an unreimbursed medical expense which must be excluded in determining the Veteran's countable annual income for improved pension purposes in 2004. 38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a), 3.272 (2008). 2. The Veteran's claimed expenses of $161.95 for "repair of door," $392.76 for "fire & alarm ambulance call," $272.16 for "assorted clothing," and $1,080 for "food on wheels," are not unreimbursed medical expenses; they need not be excluded in determining the Veteran's countable annual income for improved pension purposes in 2004. 38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a), 3.272 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board first notes that although the issue is stated as one involving "medical expenses reported for the year 2004," the use of the term "the year 2004" is a linguistic convenience. In fact, the effective date for the RO's grant of pension benefits is November 21, 2003, and the actual reporting dates for the time period in issue are from November 21, 2003 to November 21, 2004. See e.g., October 2008 statement of the case. The aspect of the Board's August 2008 Remand, which directed that a statement of the case be issued as to whether all claimed medical expenses "for the year 2003" could be counted to reduce the amount of the Veteran's income, therefore, appears to have been in error. In addition, as a statement of the case was issued in October 2008, and as there is no record of receipt of a timely substantive appeal, any "issue" of medical expenses for "the year 2003" is not otherwise before the Board at this time. See 38 C.F.R. §§ 20.200, 20.201, 20.202 (2008). The Veteran asserts, in essence, that the RO improperly refused to allow certain medical expenses reported for the year 2004 to be counted to reduce the amount of his income for non-service-connected pension purposes. The Veteran has not advanced any specific arguments explaining why he believes that the claimed expenses should by considered "medical expenses" under 38 C.F.R. § 3.272(g)(1)(i). Pension benefits are paid at the maximum annual rate reduced by the amount of annual income received by the veteran. 38 U.S.C.A. § 1521(b); 38 C.F.R. §§ 3.3(a)(3)(vi), 3.23(a), (b), (d)(4). Basic entitlement to such pension exists if, among other things, the appellant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 (2008). 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21. In a rating decision, dated in March 2004, the RO granted non-service-connected pension, as well as special monthly pension based on the need for aid and attendance, with a start date of December 1, 2003. In early 2005, the RO received the Veteran's "improved pension eligibility verification report" (VA Form 21-0516-1) ("EVR"), in which the Veteran listed his income, and that of his spouse, for the years 2004 and 2005. He indicated that he did not have any dependent children. For both years, he reported receiving (or expecting to receive) $1,258.00 per month from the Social Security Administration (SSA), and $939.87 per month from a pension, and that his spouse received $791 per month from the SSA. It appears that this form was submitted together with the Veteran's "medical expense report" ("MER") (VA Form 21-8416), and associated documentation, to include receipts and billing statements dated in 2004. In April 2005, the St. Paul PMC advised the appellant that it had retroactively adjusted (decreased) his pension benefits for the periods beginning January 1, 2004, and beginning January 1, 2005. With regard to pension payments for 2004, the notice indicated that they were based on an allowance of a total of $30,367 in medical expenses (this amount was taken from the Veteran's MER's for the years 2003 and 2004, received in March 2005). In June 2005, the St. Paul PMC advised the appellant that it had retroactively adjusted (increased) his pension benefits (when compared to the figure stated in its April 2005 notice) for the period beginning January 1, 2004, and December 1, 2004). The notice indicates that the RO had allowed of a total of $33,602.00 in medical expenses for 2004. In September 2005, the St. Paul, Minnesota Committee on Waivers and Compromises (COWC) denied a waiver of recovery of an overpayment of pension benefits in the aggregate amount of $9,527.00. There was no appeal. In determining "countable annual income" for improved pension purposes, all payments of any kind or from any source shall be included except for listed exclusions. 38 U.S.C.A. § 1503(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.260, 3.261, 3.262, 3.271(a) (2008). Unreimbursed medical expenses will be excluded when all of the following requirements are met: (i) They were or will be paid by a veteran or spouse for medical expenses of the veteran, spouse, children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) They were or will be incurred on behalf of a person who is a member or a constructive member of the veteran's or spouse's household; and (iii) They were or will be in excess of 5 percent of the applicable maximum annual pension rate or rates for the veteran (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. 38 C.F.R. § 3.272(g)(1)(iii). Effective December 1, 2003, the maximum allowable rate for a veteran with a spouse but no child who is permanently and totally disabled was $12,959. See M21-1, part I, Appendix B, (change 49) (October 4, 2004). The Veteran's EVR for 2004 indicates that the annual income for the Veteran and his spouse was $35,866.44. The Veteran has reported income in excess of the specified annual maximum rate. However, his annual income may be reduced by the amount of any eligible unreimbursed medical expenses, provided that they were in excess of 5 percent of the applicable maximum annual pension rate. Here, five percent of the MAPR effective December 1, 2003 is $647 (12,959 x 0.05). The Board further notes that the record does not indicate that the Veteran is eligible for any other exclusions from his countable income as allowed in 38 C.F.R. § 3.272 (2008) as he has not alleged any other expenses or income that can be excluded. The RO's June 2005 states that it allowed $33,602.00 in medical expenses for the year 2004, but that five claimed medical expenses for 2004 had not been allowed. Specifically, it was stated that it had not allowed the claimed expenses of: $1,080 for "food on wheels," $161.95 for "repair of door," $392.76 for "alarm system," $2,073.35 for "controlled environment," and $272.16 for "assorted clothing." With regard to the claimed $392.76 for an "fire & alarm ambulance call" (made to ADT), this expense appears to ensure the availability of emergent medical treatment. The evidence indicates that the Veteran, who is 74 years old, has significant cardiovascular and cerebrovascular conditions, as well as diabetes, and that he requires a wheelchair. Nevertheless, the Board is unaware of any authority for classifying private emergency response services, which the Veteran appears to have purchased as a supplement to other available non-subscription emergency services, as "medical expenses," and the Board finds that this expense should be not be allowed. With regard to the claimed $2,073.35 for "control environment" (as described in the Veteran's EVR for 2004) (made to Entergy), a letter from A.B.M., M.D., states that the Veteran has been under her care for cerebrovascular and cardiovascular symptoms, and that, "He needs to be in a controlled environment and should not ever be without electricity in his home as this could cause him greater health problems." It therefore appears that this expense was incurred in order to assure a stable home environment, and possibly, a stable power supply, and that these things are required to maintain his health. Given the foregoing, and giving the Veteran all benefit of the doubt, the Board finds that this expense should be allowed. With regard to the claimed $161.95 for "repair of door" (made to Home Depot), a letter, signed "T.K. Construction," dated in November 2004, notes repair of a bath door, and cabinet pulls. It appears that the Veteran has significant limitations in mobility due to his medical conditions, and that he requires the use of a wheelchair. However, there is no evidence to indicate that this expense was required in order to assure a minimal functional level within his home, to include to allow him to have access to his medications, as opposed to routine maintenance or remodeling. The Board is unable to find a basis upon which to classify this expense as a "medical expense". Given the foregoing, the Board finds that this expense is not a medical expense within the meaning of the applicable regulation, and that it should be not allowed. With regard to the claim for $1,080 for "food on wheels" (made to Luby's), there is no indication that this expense, which the Veteran indicated was paid out over the period between January to December of 2004, involved food specifically intended to conform to a medical need, such as a medically restricted diet. In this regard, the Veteran is diabetic. Of circumstantial relevance, a "report of contact" (VA Form 119), dated in June 2005, states that the Veteran's physician did not require him to drink Ensure. Accordingly, this claimed expense is not considered a medical expense, and it is denied. Id. Finally, with regard to the claimed $272.16 for "assorted clothing," this is a reference to four claimed expenses of $85.97 (for "pullup pants handicap") (made to Sears), $25.98 (for "socks shoes handicap") (made to Dillards), $96.34 (for "socks shoes handicap") (made to Dillards), and 63.87 (for "socks shoes guardshoe night time") (made to Dillards). An associated receipt from Sears, dated in April 2004, indicate that the Veteran bought two shirts, and between one and three pairs of pants (the descriptions are unclear as to the items purchased). Associated receipts from Dillards indicate that the Veteran purchased two pairs of socks, and two pairs of shoes. The RO disallowed a somewhat similar claim in 2003 (for shoes), and even when considering the Veteran's medical conditions, and the possibility that the Veteran must purchase clothing that is designed specifically for the disabled, the Board is unaware of any authority for considering such clothing expenses as medical expenses under the applicable regulation. Here, there is no evidence to show that any of these items were corrective in nature, or that they were otherwise required for health maintenance. Accordingly, this claimed expense is not considered a medical expense, and is denied. Id. Duties to Notify and Assist The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). But the VCAA does not apply to all types of claims. For example, in Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this appeal is not found in Chapter 51. In addition, the applicable law requires that when a debt results from an individual's participation in a benefits program, the individual must be informed of the exact amount of the debt, and the collection methods to be employed. 38 C.F.R. § 1.911(d). The individual must also be notified of his or her rights and remedies, specifically, that he may informally dispute the debt, or the amount of the debt; that he may request a waiver; that he may request a hearing; and that he may appeal the underlying debt. 38 C.F.R. § 1.911(b), (c). The claimant must also be provided notice of the reasons for the debt. 38 C.F.R. § 1.911(d). This information was provided to the appellant in notices dated in June and September of 2005, a September 2005 waiver decision, the October 2006 Statements of the Case, and the December 2008 Supplemental Statement of the Case. The Board further notes that all evidence necessary to fairly evaluate the claim has been obtained. The correspondence between the Veteran and the RO is discussed above. Thus, there has been adequate notification and development under the relevant law. ORDER The expense of $2,073.35 for "control environment" is a medical expense; it must be excluded in determining the Veteran's countable annual income for improved pension purposes in 2004. The expenses of $161.95 for "repair of door," $392.76 for "alarm system," $272.16 for "assorted clothing," and $1,080 for "food on wheels," are not medical expenses; the claim that they must be excluded in determining the Veteran's countable annual income for improved pension purposes in 2004 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs