Citation Nr: 1023600 Decision Date: 06/24/10 Archive Date: 07/01/10 DOCKET NO. 09-36 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Whether monthly payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community are deductible from the Veteran's countable annual income as unreimbursed medical expenses. 2. Whether the Veteran's countable annual income is excessive for disability pension benefits prior to December 1, 2009. 3. Whether the Veteran's countable annual income is excessive for disability pension benefits since December 1, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant's son and daughter-in-law ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted special monthly pension based on the need for aid and attendance, effective February 27, 2008, but denied all monetary benefits for the Veteran's pension due to his countable annual income exceeding the maximum annual pension rate (MAPR). The Veteran's son and daughter-in-law testified on his behalf before the Board in April 2010. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of whether the Veteran's countable annual income is excessive for disability pension benefits since December 1, 2009, is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's monthly payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community do not constitute expenses for maintenance of a disabled person in an adult daycare center, rest home, or group home, and may not be properly deducted from his countable annual income as unreimbursed medical expenses. 2. The evidence shows that prior to December 1, 2009, the Veteran's countable annual income exceeds VA's maximum annual pension rate for pension with special monthly pension for aid and attendance for a Veteran with no dependents. CONCLUSIONS OF LAW 1. The criteria for deduction of unreimbursed medical expenses from annual income for maintenance in an adult daycare center, rest home, or group home have not been met for the payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community. 38 U.S.C.A. §§ 1502, 1521, 1522 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273; M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m) (2009). 2. The Veteran's countable annual income prior to December 1, 2009, is in excess of the prescribed limit for entitlement to nonservice-connected disability pension benefits. 38 U.S.C.A. §§ 1503, 1541 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.23, 3.260, 3.271, 3.272 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Improved nonservice-connected pension is a benefit payable by VA to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1521(a) (West 2002 & Supp. 2009). Basic entitlement to pension exists if, among other criteria, the Veteran's income is not in excess of the specified maximum annual pension rate (MAPR). 38 U.S.C.A. § 1521(a), (b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4) (2009). The Veteran's appeal arises from the determination that his income exceeds the maximum annual disability pension limit. The maximum annual rates of pension and death pension payable are published in Appendix B of VA Manual M21-1 and are to be given the same force and effect as published in VA regulations. 38 C.F.R. § 3.21 (2009). Effective December 1, 2007, and December 1, 2008, the maximum annual rate of improved pension for aid and attendance for a Veteran with no dependents was $18,654.00, and $19,736.00, respectively. See Veterans Benefits Administration Manual M21-1, Part I, Appendix B. In determining annual income for payment of pension, all payments of any kind or from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12- month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1) (2009). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1)-(3) (2009). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c) (2009). The following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses which have been paid in excess of five percent of the MAPR. 38 C.F.R. § 3.272 (2009). Income from SSA disability benefits is not specifically excluded and therefore is included as countable income. 38 C.F.R. § 3.272 (2009). Exclusions from countable income include unreimbursed medical expenses to the extent that they are in excess of five percent of the applicable maximum annual pension rate. 38 C.F.R. § 3.272(g) (2009). Medical expenses are generally deductible from countable income for nursing home fees. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(b) (2009). For the purposes of the medical expense deduction, a nursing home is any facility that provides extended term inpatient medical care, and a licensed health professional is an individual licensed to furnish health services by the state in which the services are provided. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(a), (c). However, the fees paid to maintain a Veteran in an adult daycare center, a rest home, a group home, or a similar facility that does not qualify as a nursing home may also be deducted from countable income as medical expenses. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m). If a Veteran has been rated in need of aid and attendance or housebound benefits by VA or certified by a physician as needing the care provided by the facility, then all reasonable fees paid to the facility may be deducted as medical expenses as long as the facility provides some medical or nursing services for the disabled person. The services do not have to be furnished by a licensed health professional. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m). Deduction of Unreimbursed Medical Expenses In this case, the Veteran has been granted special monthly pension based on the need for aid and attendance, effective February 27, 2008. Therefore, the relevant issue pertaining to whether the payments to his living facilities constitute unreimbursed medical expenses is whether each of the Veteran's living facilities provides some medical or nursing services for him. The Veteran resided at Greeley Place Senior Housing (Greeley Place) from January 2007 to October 2008. He made monthly payments of $1,735.00 to Greeley Place. In a January 2008 letter, the co-managers of Greeley Place provided a brief description of what the adult living community entailed. The co-managers stated that Greeley Place was not classified specifically as a nursing home. However, they reported that Greeley Place had many of the same accommodations, equipment, and services as a nursing home, including hand rails in the halls, restrooms, and showers; raised commodes in restrooms wherever requested; shower seats in showers wherever requested; roll-in showers if needed; 24 hour staff of two sets of co-manager couples on duty; panic buttons in the bathroom and next to the bed; assistance provided in case of fire -or act of nature; bed linens changed each week; all three meals and special meals as directed by doctors provided daily; housekeeping, including sanitizing of baths, kitchenettes, and vacuuming; and transportation to doctor appointments, banking, shopping, and activities. The RO contacted one of the co-managers of Greeley Place in June 2008 to determine whether it provided any medical or nursing services. The co-manager reported that Greeley Place did not provide any medical or nursing services. She stated that if a resident of Greeley Place fell, the managers had to call 911. She explained that they were unable to apply a bandage on a resident. Because Greeley Place did not provide any medical or nursing services to the Veteran while he resided there, and the managers of the facility were unauthorized to provide any medical services, the Board finds that it did not fit the criteria of being an adult daycare center, a rest home, a group home, or a similar facility that does not qualify as a nursing home, as required under VA Manual M21-1MR. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m). Therefore, the Board finds that the monthly payments of $1,735.00 that the Veteran made to Greeley Place from January 2007 to October 2008 may not be deducted as medical expenses from the Veteran's countable annual income for pension benefits purposes. Accordingly, the claim that payments to Greeley Place constitute unreimbursed medical expenses must be denied. The Veteran has resided at Whispering Chase Independent Retirement Community (Whispering Chase) since December 2008. He has been making monthly payments of $2,295.00 to Whispering Chase. In an October 2008 letter, the community managers of Whispering Chase provided a brief description of what the adult living community entailed. The managers stated that Whispering Chase was not classified specifically as a nursing home. However, they reported that Whispering Chase had many of the same accommodations, equipment, and services as a nursing home, including hand rails in the halls, restrooms, and showers; raised commodes in restrooms; shower seats in showers; 24 hour staff of two sets of manager couples on duty; panic buttons in the bathroom, living room, and bedroom; assistance provided in case of fire or act of nature; bed linens changed each week; all three meals provided daily; housekeeping, including sanitizing of baths, kitchenettes, and vacuuming; transportation to doctor appointments, banking, shopping, and activities. Residents could contract with third party providers for other services, including medical services, home health care and therapy, and assistance with medications and other medical and personal hygiene needs. The evidence of record shows that the Veteran has been receiving medical care at Whispering Chase from third-party contractors who are not associated with the living facility. A letter from the location manager of Community Home Oxygen indicated that her company had been providing the Veteran with liquid oxygen once a week on Thursdays at Whispering Chase. Similarly, in February 2009 and April 2010 letters, employees at Summit Home Health Care reported that their company provided skilled and unskilled in-home nursing services to assist clients in the activities of daily living. They stated that the Veteran sought assistance from their company for stand-by assistance during and after taking a shower, aiding him in applying a patch and ointment to his back, assisting him in complying with his medications, and assisting him in dressing. An April 2010 letter from the president of Indulge, PLLC, indicated that the company delivered occupational, physical, and speech therapy services by licensed and registered therapists to residents of Whispering Chase and that it was currently providing therapy services to the Veteran at his residence for his respiratory difficulties. The Board finds that although the Veteran has received medical and nursing services at Whispering Chase, these services were provided by third-party contractors and not by Whispering Chase itself. Thus, those services were not covered as part of the monthly $2,295.00 paid to Whispering Chase. The evidence shows that Whispering Chase allows its residents to contract with outside nursing and medical service providers to bring their services to the building. However, it does not actually provide any nursing or medical staff of its own and the monthly $2,295.00 does not include payment for any medical or nursing services. Additionally, there is no evidence that Whispering Chase has paid for the Veteran's medical and nursing bills, as the Veteran has been billed directly for the medical and nursing services from Community Home Oxygen, Summit Home Health Care, and Indulge, PLLC. Therefore, the Board concludes that Whispering Chase itself does not provide any medical or nursing services to the Veteran. Because Whispering Chase does not provide any medical or nursing services to the Veteran, the Board finds that it does not fit the criteria of being an adult daycare center, a rest home, a group home, or a similar facility that does not qualify as a nursing home, as required under VA Manual M21- 1MR. M21-1MR, Part V, Subpart iii, Chapter 1, Section G, Topic 43(m). Therefore, the monthly payments of $2,295.00 that the Veteran has made to Whispering Chase since December 2008 may not be deducted as medical expenses from the Veteran's countable annual income for pension benefits purposes. As the preponderance of the evidence is against the claim that monthly payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community are deductible from the Veteran's countable annual income as unreimbursed medical expenses, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, those amounts paid to Whispering Chase and Greeley Place cannot be deducted from the Veteran's income for improved pension purposes. Countable Annual Income Prior to December 1, 2009 Although the Board has found in this decision that the Veteran's payments to Greeley Place and Whispering Chase are not deductible from his countable annual income as unreimbursed medical expenses, the evidence still shows that he has incurred unreimbursed medical expenses in the form of nursing and medical services prior to December 1, 2009. Therefore, the Board must take those unreimbursed medical expenses into account when calculating the Veteran's countable annual income prior to December 1, 2009. Because the Veteran filed his claim for special monthly pension based on aid and attendance in February 2008, the relevant years for calculating the Veteran's countable annual income prior to December 1, 2009, are the years beginning December 1, 2007, and December 1, 2008. Exclusions from countable income may include unreimbursed medical expenses to the extent that they are in excess of five percent of the applicable maximum annual pension rate. 38 C.F.R. § 3.272(g). Effective December 1, 2007, and December 1, 2008, the maximum annual rate of improved pension for aid and attendance for a Veteran with no dependents was $18, 654.00, and $19,736.00, respectively. M21-1, Part I, Appendix B. Five percent of the MAPR for the years beginning December 1, 2007, and December 1, 2008, is $932.70 and $986.80, respectively. The Veteran's income statement reflects that he receives monthly payments of $63.04 of stocks and bonds, $117.00 of VA benefits, $432.00 of retirement benefits, and $1,083.00 of Social Security income. He also receives annual interest income of $704.00 and $998.00 of IRA income. Based on those figures, the Veteran's annual income before deductions is $21,412.58. For the year beginning December 1, 2007, and ending November 30, 2008, the available submitted evidence of unreimbursed medical expenses from November 2007 to October 2008 that indicate that the Veteran made an annual payment of $1,176.00 to Medicare and paid $1,391.00 in prescription medication. Adding the amount for prescription drugs ($1,391.00) to Medicare premiums ($1,176.00) totals $2,567.00 in unreimbursed medical expenses for that year. The calculation of income of $21,412.58 less unreimbursed medical expenses of $2,567.00 results in $18,845.58, which exceeds the applicable MAPR of $18,654.00. Therefore, the Veteran's total countable annual income exceeds the MAPR for the year beginning December 1, 2007, and ending November 30, 2008. For the year beginning December 1, 2008, and ending November 30, 2009, the available submitted evidence of unreimbursed medical expenses from January 2009 to November 2009 that indicate that he made monthly payments to Medicare of $96.00. He also made payments to the following medical providers: Internal Medicine Group: $9.30 Community Home: $38.00 Greeley Medical: $25.00 Cheyenne Radiology: $12.00 Banner Health: $46.00 Summit Home Health: $140.00 Northern CO Medical: $205.00 Caremark: $91.00 Cheyenne Vision: $40.00 Adding the monthly amounts for Medicare premiums ($1,056.00) to the payments to the various medical providers ($606.30) totals $1,662.30 in unreimbursed medical expenses for that year. The calculation of income of $21,412.58 less unreimbursed medical expenses of $1,662.30 results in $19,750.28, which exceeds the applicable MAPR of $19,736.00. Therefore, the Veteran's total countable annual income exceeds the MAPR for the year beginning December 1, 2008, and ending November 30, 2009. The evidence shows that the Veteran's income is in excess of the maximum annual pension rate for purposes of nonservice- connected disability pension benefits prior to December 1, 2009. Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that the preponderance of the evidence is against the claim that the Veteran's income is not excessive for improved pension purposes, and entitlement to payment of improved pension benefits prior to December 1, 2009, is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA is required to provided notice and assistance of claimants. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). However, where, as here, the law is dispositive of the matter on appeal, the duties to notify and assist imposed by statue and regulation are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Nonetheless, the Board notes that, in the June 2008 administrative decision and in the August 2009 statement of the case, the RO discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions, and afforded opportunity for the Veteran to provide information and evidence pertinent to the claims. Subsequently, the claim was readjudicated in a February 2010 supplemental statement of the case. The Board finds that those actions are sufficient to satisfy any required duties to notify and assist. Thus, even if the Board was to presume, for the sake of argument, that there is some deficiency insofar as preliminary VA notice and development, such would be inconsequential and, therefore, at most harmless error. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). ORDER The Veteran's monthly payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community are not proper deductions from income as unreimbursed medical expenses. The Veteran's countable annual income prior to December 1, 2009, is excessive for purposes of nonservice-connected disability pension benefits. REMAND Additional development is needed prior to further disposition of the claim of whether the Veteran's countable annual income is excessive for disability pension benefits since December 1, 2009. As a result of this Board decision, the Veteran's monthly payments to Greeley Place Senior Housing and Whispering Chase Independent Retirement Community were not considered proper deductions from income as unreimbursed medical expenses, and his countable annual income was found to be excessive for disability pension benefits prior to December 1, 2009. However, regarding whether the Veteran's countable annual income is excessive for disability pension benefits since December 1, 2009, the Board notes that the pension year beginning December 1, 2009, and ending on November 30, 2010, remains in progress. The Veteran has submitted some unreimbursed medical expense information from January 2010 through April 2010. At an April 2010 travel board hearing before the Board, the Veteran's son and daughter-in-law testified on his behalf because the Veteran had been hospitalized a few days previously for respiratory failure. The Board finds that the evidence of record does not include the Veteran's current unreimbursed medical expenses to date, to include any unreimbursed medical expenses that he may have incurred as a result of his April 2010 hospitalization. In order to make an accurate assessment of the Veteran's claim, it is necessary to obtain all of the Veteran's current unreimbursed medical expenses to date so as to accurately calculate whether his countable annual income is excessive for disability pension benefits since December 1, 2009. Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested. 1. Request that the Veteran submit all current unreimbursed medical expenses that he has incurred since December 1, 2009, to include his period of hospitalization in April 2010 for respiratory failure. Calculate the Veteran's countable annual income since December 1, 2009, using the updated unreimbursed medical expense information. 2. Then, readjudicate the Veteran's claim. If the claim is denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs