Citation Nr: 1111863	
Decision Date: 03/24/11    Archive Date: 04/06/11

DOCKET NO.  09-18 665A	)	DATE
	)
	)

On appeal from the 
Department of Veterans Affairs Health Administration Center in Denver, Colorado


THE ISSUE

Eligibility for benefits through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), for the appellant from June 1, 2001, to February 28, 2009.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and friend


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty from March 1962 to May 1964.  The Veteran died in October 1998, and the appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 denial by the Health Administration Center (HAC) in Denver, Colorado.  

The appellant testified at an October 2010 Board hearing held by the undersigned sitting at the Regional Office in St. Petersburg, Florida, a transcript of which is associated with the claims file.

During the October 2010 hearing, the appellant submitted additional evidence in support of her claim.  This evidence has not been reviewed by the agency of original jurisdiction.  However, the appellant indicated that was waiving this procedural right with the evidence received.  38 C.F.R. §§ 19.37, 20.1304 (2010).  Thus, the Board will consider the newly submitted evidence in the first instance.


FINDING OF FACT

For the period from June 1, 2001, to February 28, 2009, the appellant had not yet reached the age of 65, was enrolled in Medicare Part A, but not enrolled in Medicare Part B.

CONCLUSION OF LAW

The criteria for eligibility for CHAMPVA benefits for the appellant for the period from June 1, 2001, to February 28, 2009, have not been met.  38 U.S.C.A. § 1781 (West 2002 & Supp. 2010); 38 C.F.R. § 17.271 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under 38 U.S.C.A. § 5103, VA must notify a claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide.  However, the Board finds that VA was not required to provide the appellant with such notice, as this case is one where as a matter of law, entitlement to the benefit claimed cannot be established.  See 38 C.F.R. § 3.159(b) (3) (ii) (2010).  This extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts.  See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As the pertinent facts in this case are undisputed, and the law as mandated by statute, and not the evidence, is dispositive of this appeal, the Board finds that no further action is required pursuant to the Veterans Claims Assistance Act of 2000.  See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (finding that where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Moreover, as the outcome of the case is based on the law and not the evidence, the holdings of Bryant v. Shinseki, 23 Vet App 488 (2010) regarding the duties of Board hearing officers during the course of a Board hearing, are not applicable here.

Analysis

CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs and is administered by the Health Administration Center (HAC), Denver, Colorado.  Under 38 U.S.C. 1781, VA is authorized to provide medical care in the same or similar manner and subject to the same or similar limitations as medical care furnished to certain dependents and survivors of active duty and retired members of the Armed Forces.  The CHAMPVA program is designed to accomplish this purpose.  Under CHAMPVA, VA shares the cost of medically necessary services and supplies for eligible beneficiaries.  38 C.F.R. § 17.270 (2010).

The appellant claims entitlement to CHAMPVA on the basis that she is the spouse of the Veteran, who the record reflects was found by VA to be permanently and totally disabled as of March 3, 1988.  38 C.F.R. § 17.271 (a) (1) (2010).  However, individuals under age 65 retain CHAMPVA eligibility as secondary payer to Medicare Parts A and B, Medicare supplemental insurance plans, and Medicare HMO plans, only if they are entitled to Medicare Part A and enrolled in Medicare Part B.  38 C.F.R. § 17.271 (b) (1) (2010).  In this case, the evidence reflects that the appellant enrolled in Medicare Part A, effective June 1, 2001.  However, she was not enrolled in Medicare Part B at that time, or at any time up until February 28, 2009.  The appellant testified that she was not aware that when she applied for benefits from the Social Security Administration that it came with Medicare benefits as well, nor did she realize the impact it would have on her CHAMPVA benefits.  She also indicated that she was in constant contact with VA to let them of any changes in her income or status but it was not until she turned 65 years old that the Social Security Administration notified her that she was eligible for Medicare.  She contends that she was not aware that she was eligible for such benefits prior to that time.  Numerous lay statements have been submitted on the appellant's behalf reflecting her contributions to her community and indicating that she was unaware of the discrepancy.  Regardless, absent evidence of Medicare Part B enrollment at the time of her eligibility for Medicare Part A, she is not eligible for CHAMPVA benefits for the period from June 1, 2001, to February 28, 2009.

While the Board is sympathetic to the appellant and the stress that this matter has caused, it is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Unfortunately, there simply is no legal provision pursuant to which the Board may grant the benefits sought.  Therefore, entitlement to CHAMPVA benefits June 1, 2001, to February 28, 2009, must be denied.


ORDER

Eligibility for benefits through CHAMPVA for the appellant from June 1, 2001, to February 28, 2009 is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs