Citation Nr: 1300061 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-45 026 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased nonservice-connected pension award based on medical expenses report for the year 2009. ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In January 2010, the Veteran submitted a Medical Expense Report which indicated, in pertinent part, that $7,200.00 had been paid for "home care" by the Veteran in 2009. 2. The Veteran did not respond to VA's request for additional information regarding the claimed $7,200.00 purportedly paid by the Veteran in 2009 for home care. CONCLUSION OF LAW Exclusion of the Veteran's reported medical expense of $7,200.00 for "home care" in 2009 was proper in determining the Veteran's countable income for VA pension benefits purposes for 2009. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, basic entitlement to VA nonservice-connected pension benefits exists if the veteran had qualifying service (a veteran who served during wartime), is permanently and totally disabled from nonservice-connected disability, and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521 (West 2002 & Supp. 2012); 38 C.F.R. § 3.3(a)(3) (2012). In determining annual income, 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. 38 C.F.R. § 3.271(a) (2012). Medical expenses in excess of five percent of the MAPR, 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) (2012). In the current case, the facts are not in dispute. As of January 2009, the Veteran was in receipt of non-service connected improved pension with special monthly pension for aid and attendance for a Veteran with no dependents. In January 2010, he submitted a Medical Expense Report for medical expenses he incurred in 2009. The Veteran's reported medical expenses for 2009 consisted of $1156.80 for Medicare Part B payments; physicians fees of $40.00 and $45.00, medications costs of $886.02 and $7,200.00 for "home care." In March 2010, the Veteran was informed that VA was amending the award of nonservice-connected pension benefits for 2009 to reflect the Veteran's payments of $2,127.00 in medical expenses. This reduced the Veteran's countable income to $6,160.00. His monthly benefits were increased from $1050.00 to $1131.00 as a result. The Veteran was specifically informed that VA did not use the reported home care expenses in determining the amount of pension to which he was entitled. He was informed that, in order to consider care giver fees, he had to provide information on his care givers including a statement from them as to what services were provided and when as well as a statement as to who the caregiver services were paid to and the caregivers name, address and phone number. See VA's Adjudication Procedures Manual, M21-1MR, Part V, Subpart i, ch. 3, sec. D(13)(i) (2012) (requiring documentation to deduct fees for in-home attendants). In May 2010, the Veteran submitted a notice of disagreement with the March 2010 decision. He wrote that he should be receiving $1510.00 monthly which should include the home care expenses. No actual argument has been advanced by the Veteran with regard to why his care giver expenses should be deducted from his countable income. The Veteran has never responded to VA's request to provide the requested information on his reported care givers. As the Veteran never responded to VA's request for additional information regarding the individual or individuals who provided "home care" for the Veteran in 2009, the cost of this service was properly excluded when considering the amount of unreimbursed medical expenses which were to be deducted in determining the amount of countable income for the Veteran in 2009. The United States Court of Appeals for Veterans Claims has held that, "[i]f a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has attempted to obtain updated information from the Veteran in support of his pension claim with regard to his claimed home care expenses. He has not provided any additional information. The available evidence shows that the Veteran's legitimate documented medical expenses in 2009 were properly accounted for and resulted in a reduction in the amount of the Veteran's countable income and an increase in his pension payment as a result. His failure to respond to VA's request for information regarding care giver or home care expenses leaves VA unable to determine if these expenses were legitimate. VA is justified in the current case for excluding the Veteran's reported care giver expenses when determining the Veteran's countable income. VA is required to provide notice and assistance to claimants. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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). ORDER The appeal is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs