Citation Nr: 1304435 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-32 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to retroactive increase of VA pension benefits for the years 2002 through 2008 on the basis of recomputation of the Veteran's income to account for unreimbursed medical expenses. ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1964 to February 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decisional letter of the Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in Milwaukee, Wisconsin (with additional notice letters concerning the same determination issued on several subsequent dates). Subsequent re-adjudication (including issuance of the statement of the case (SOC)) was completed in the jurisdiction of the Nashville, Tennessee VARO. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. The Board notes that Virtual VA contains copies of essential VA decisional letters and items of the Veteran's correspondence in this case. The Veteran's appeal in this case has featured his contentions seeking to establish entitlement to reimbursement of $4,057.87 of specified medical (dental) expenses from 2002 through 2008. The RO adjudication of this matter has addressed his contentions as pertaining to his pension benefits. However, the Veteran's written correspondence expresses disagreement with the RO's interpretation of the nature of his claim, and he has made references that may implicate other legal bases for consideration of reimbursement. The Veteran's December 2009 written statement expresses that "I am not requesting that my monthly Pension be increased permanently. This was a one time medical expenditure, and I am merely requesting reimbursement for the monies that I paid out for that medical dental treatment." The Veteran refers to "$4,057.87 that I have incurred because my local VA medical center refused me the dental care that I needed." In several earlier items of correspondence (documented in Virtual VA), the Veteran made repeated contentions that he incurred the private medical expenses due to being denied such services by VA medical facilities. When a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that provide for payment or reimbursement for the expenses thus incurred: 38 U.S.C.A. §§ 1725 and 1728. The Veteran's claim of entitlement to VA reimbursement of specified medical expenses (contended to have been incurred due to a VA Medical Center not providing those services to him) reasonably raises a claim for medical expense reimbursement under 38 U.S.C.A. §§ 1725 and 1728. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action (to include providing the Veteran with notice of the criteria for establishing entitlement to reimbursement of medical expenses under 38 U.S.C.A. §§ 1725 and 1728, and referral of the matter to the appropriate authorizing VA Medical Center). FINDING OF FACT The Veteran's nonservice-connected pension benefits from 2002 through 2008 were computed with consideration that the Veteran had no income. CONCLUSION OF LAW A higher rate of pension or adjustment of pension payments for the years 2002 through 2008 based on recomputation of income to account for unreimbursed medical expenses is not warranted. 38 U.S.C.A. §§ 1503(a)(8), 1521 (West 2002); 38 C.F.R. § 3.272(g) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As will be explained below, the claim lacks legal merit. As the law is dispositive of the matter on appeal, the duties to notify and assist imposed by VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Merits of the Claim The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Under 38 U.S.C.A. § 1521, veterans who served on active duty during a period of war, and who are disabled to the required degree, are entitled to receive a VA pension, to be adjusted based on their annual income. Under 38 U.S.C.A. § 1503(a)(8) annual income for pension purposes includes payments of any kind and from any source except, inter alia, the amount equivalent to payments for unreimbursed medical expenses to the extent that they exceed five percent of the maximum annual rate of pension. See 38 C.F.R. § 3.272(g). If a VA pension recipient submits an Improved Pension Eligibility Verification Report (EVR) or report of medical expenses each year within an annual reporting period established by VA, certain unreimbursed medical expenses may be excluded from the annual income reported by the recipient and used by VA to adjust the amount of pension warranted. Consequently, a veteran's submission of an EVR or report of medical expenses may result in a retroactive upward adjustment of pension for the prior year. See 38 U.S.C.A. §§ 1503(a)(8), 1521; 38 C.F.R. § 3.272(g)(1). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Regardless of the timing of the Veteran's submission of reports of medical expenses for the years pertinent to this appeal, the Board finds that the Veteran's claim has no merit under the applicable laws and regulations concerning his pension entitlement. In the original September 2008 determination, the AOJ explained that it could not meaningfully exclude unreimbursed medical expenses from the Veteran's countable income, stating that he was paid at the maximum rate, and that he was already considered to have no countable income. The claims file reflects that the Veteran has received his pension benefits at the maximum rate based upon a report of no countable income throughout the years pertinent to this appeal. The Veteran does not contend otherwise. He has repeatedly explained, including in his December 2009 written correspondence: As I have no other income [than] that which I receive from my VA Disability Pension check, the dental expenses that I incurred were paid from those monies. That, unfortunately, had the effect of actually reducing the Pension that I was supposed to receive. However, there is no provision in the law for awarding additional payment of pension benefits on the basis of unreimbursed medical expenses other than the above-discussed exclusion from countable income of unreimbursed medical expenses under 38 C.F.R. § 3.272(g)(1). As the Veteran's pension payments for the years in question were at the maximum rate on the basis of no countable income, there is no possible adjustment or reimbursement on the basis of any unreimbursed medical expenses. For the purposes of calculating the Veteran's pension benefit entitlement, unreimbursed medical expenses may only be applied to offset countable income; unreimbursed medical expenses do not otherwise provide a basis for additional payment or reimbursement in connection with the Veteran's pension entitlement. The facts in this case are not in dispute. Even accepting all of the Veteran's factual contentions, there is no legal basis for the reimbursement he seeks under the applicable laws and regulations concerning his pension entitlement. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has decided this case based on its application of the law to the pertinent facts. The Board recognizes that the Veteran believes he has been effectively denied the benefit of his pension entitlement due to the absence of additional payment beyond the maximum rate to account for his unreimbursed medical expenses. There is simply no identified legal authority for such additional payment under the applicable laws and regulations governing the Veteran's entitlement to pension benefits. The Board observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). ORDER The appeal to establish entitlement to retroactive increase of VA pension benefits for the years 2002 through 2008, on the basis of recomputation of the Veteran's income to account for unreimbursed medical expenses, is denied. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs