Citation Nr: 1302285 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-34 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Iowa City, Iowa THE ISSUE Entitlement to a waiver of medication co-payments and waiver of recovery of a debt stemming from medication co-payments. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to May 1968. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Medical Center in Iowa City, Iowa (RO). FINDINGS OF FACT 1. The evidence of record shows that the Veteran was billed for medication co-payments totaling $1,160.00 between March 18, 2008, and February 26, 2009; with additional co-payments totaling $36.00 between May 19, 2009, and May 21, 2009. 2. A March 2012 rating decision granted service-connection for coronary artery disease with cardiac pacemaker and automatic implantable cardioverter defibrillator and assigned a 100 percent rating under 38 C.F.R. § 4.101, Diagnostic Code 7018-1005, effective November 15, 2010. 3. The Veteran was already undergoing major medical treatment for ischemic heart disease, a disability which is presumptively related to exposure to herbicides, over two years prior to his medication co-payments in 2008 and 2009. CONCLUSION OF LAW The criteria for a waiver of medication co-payments have been met. 38 U.S.C.A. § 1710, (West 2002); 38 C.F.R. § 17.110 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks a waiver of recovery of indebtedness for medication co-payments. The Veteran is enrolled in the VA Healthcare System. He has no service-connected disabilities. He apparently receives multiple medications from the VA Healthcare System, for which he has been billed co-payments. The evidence of record shows that those co-payments totaled $1,160.00 between March 18, 2008, and February 26, 2009; with additional co-payments totaling $36.00 between May 19, 2009, and May 21, 2009. It is also possible that additional medication co-payments have accrued since May 2009, but are not documented in the claims file. The Veteran's dispute requesting waiver of recovery of the debt from medication co-payments includes a dispute of the validity and amount of the debt that was created, as he contends that he should not have been charged medication co-payments. A veteran is obligated to pay VA a co-payment for each 30-day or less supply of medication provided by VA on an outpatient basis, other than medication administered during treatment. 38 U.S.C.A. § 1710 (West 2002); 38 C.F.R. § 17.110(b)(1) (2012). The following are exempt from the co-payment requirements of this section: (1) Medication for a veteran who has a service-connected disability rated 50 percent or more based on a service-connected disability or unemployability; (2) Medication for a veteran's service-connected disability; (3) Medication for a veteran whose annual income, as determined under 38 U.S.C.A. § 1503, does not exceed the maximum annual rate of VA pension which would be payable to such veteran if such veteran were eligible for pension under 38 U.S.C.A. § 1521; (4) Medication authorized under 38 U.S.C.A. § 1710(e) for Vietnam-era herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf War veterans, or post-Persian Gulf War combat-exposed veterans; (5) Medication for treatment of sexual trauma as authorized under 38 U.S.C.A. § 1720D; (6) Medication for treatment of cancer of the head or neck authorized under 38 U.S.C.A. § 1720E; and (7) Medications provided as part of a VA approved research project authorized by 38 U.S.C.A. § 7303. 38 U.S.C.A. § 1710 (West 2002); 38 C.F.R. § 17.110(c) (2012). The Veteran's request for a waiver has previously been denied on the basis that he did not meet the requirements for any of the exceptions. However, the Veteran's Virtual VA claims file includes a March 2012 rating decision which granted service-connection for coronary artery disease with cardiac pacemaker and automatic implantable cardioverter defibrillator and assigned a 100 percent rating under 38 C.F.R. § 4.101, Diagnostic Code 7018-1005, effective November 15, 2010. Accordingly, as a result of that rating decision, the Veteran now meets the requirements for exemption (1) since November 15, 2010. 38 C.F.R. § 17.110(c)(1) (2012). For the period prior to November 15, 2010, exemption (1) is inapplicable as the Veteran was not service-connected for any disability during that period of time. 38 C.F.R. § 17.110(c) (2012). However, under exemption (4) Vietnam-era herbicide-exposed veterans receive exemption for co-payments for medications authorized under 38 U.S.C.A. § 1710(e) (West 2002). 38 C.F.R. § 17.110(c)(4) (2012). In turn, 38 U.S.C.A. § 1710(e) states that a Vietnam-era herbicide-exposed veteran is eligible (subject to paragraph (2)) for hospital care, medical services, and nursing home care for any disability, notwithstanding that there is insufficient medical evidence to conclude that such disability may be associated with such exposure. 38 U.S.C.A. § 1710(e)(1)(A) (West 2002). The cited paragraph (2) states that the care listed in 38 U.S.C.A. § 1710(e)(1)(A) may not be provided with respect to (i) a disability that is found, in accordance with guidelines issued by the Under Secretary for Health, to have resulted from a cause other than an exposure described in paragraph (4)(A)(ii); or (ii) a disease for which the National Academy of Sciences, in a report issued in accordance with section 3 of the Agent Orange Act of 1991, has determined that there is limited or suggestive evidence of the lack of a positive association between occurrence of the disease in humans and exposure to a herbicide agents. 38 U.S.C.A. § 1710(e)(2)(A) (West 2002). Finally, the cited paragraph (4)(A)(ii) describes exposure to dioxin or toxic substances found in herbicide or defoliant used for military purposes during the Vietnam era. 38 U.S.C.A. § 1710(e)(4)(A)(ii) (West 2002). Those regulations essentially state that Veterans who were exposed to herbicides during the Vietnam era are exempt from co-payments for all medications, unless the medications were prescribed for a disability which was found to be unrelated to herbicide exposure by the Under Secretary for Health or the National Academy of Sciences. In this case, the evidence of record shows that the Veteran served in Vietnam. He is therefore presumed under 38 U.S.C.A. § 1116(f), to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2012). Accordingly, the Veteran is exempt from co-payments for medication which accrued prior November 15, 2010, unless the medications were prescribed for a disability which was found to be unrelated to herbicide exposure by the Under Secretary for Health or the National Academy of Sciences. 38 U.S.C.A. § 1710(e) (West 2002); 38 C.F.R. § 17.110(c)(4) (2012). The evidence of record does not state the names of the medications for which the Veteran was billed a co-pay from March 18, 2008, to February 26, 2009. In addition, even if the evidence of record did include such information, there is no information of record as to which disabilities for which medications have been prescribed have been found to be unrelated to herbicide exposure by the Under Secretary for Health or the National Academy of Sciences. 38 U.S.C.A. § 1710(e)(2)(A)(ii) (West 2002). 77 Fed.Reg. 47924 (2012). However, the Board notes that the Veteran's 100 percent rating was specifically granted on the basis of presumptive service connection for ischemic heart disease, based on exposure to Agent Orange. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, the Veteran's Virtual VA claims file includes a March 2006 VA medical report which stated that the Veteran had a three-valve coronary artery bypass graft on March 2, 2006. That demonstrates that the Veteran was already undergoing major medical treatment for ischemic heart disease, a disability which is presumptively related to exposure to herbicides, over two years prior to his medication co-payments in 2008 and 2009. Under the circumstances, the Board will not presume that the Veteran's medications were prescribed for disabilities which were found to be unrelated to herbicide exposure by the Under Secretary for Health or the National Academy of Sciences. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that all the requirements of 38 C.F.R. § 17.110(c) (2012) were met for exemption from co-payments for medication throughout the entire period on appeal because the Veteran was either service-connected at 100 percent or taking medications prescribed for disabilities related to herbicide exposure. Therefore, the Veteran is entitled to a waiver of medication co-payments under the provisions of 38 U.S.C.A. § 1710. Therefore, the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because the Veteran was entitled to waiver of medication co-payments, the debt should not have accrued and was not valid. Therefore, the Board need not address the issue of waiver of recovery of debt. ORDER A waiver of medication co-payments is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs