Citation Nr: 1328345 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-13 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether the unreimbursed medical expense report with respect to the calendar year 2009 was timely submitted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active military duty from December 1943 to January 1946. He died in July 1975, and the claimant is his surviving spouse, who has been in receipt of a running award of VA death pension benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 determination by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (VAROIC) in Philadelphia, Pennsylvania. Jurisdiction over the case was subsequently transferred to the RO in Columbia, South Carolina. In her May 2012 formal appeal, VA Form 9, the appellant requested a central office hearing in Washington, DC; however, she withdrew this request in May 2013. She presented testimony at the RO before a Decision Review Officer (DRO) in May 2013. A transcript of this hearing is associated with the claims file. The Board notes that in addition to the paper claims file, there is an electronic "Virtual VA" file that was reviewed in order to ensure through analysis of the evidence of record. Of note, a copy of the VA Form 21-8416 submitted on January 25, 2011, is found in the Virtual VA file. Please note 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). FINDING OF FACT The appellant did not file an unreimbursed medical expense report or otherwise notify VA of her unreimbursed medical expenses for calendar year 2009 until January 2011. CONCLUSIONS OF LAW 1. The appellant was required to notify VA of her unreimbursed medical expenses for calendar year 2009 by December 31, 2010. 38 U.S.C.A. § 5110(h) (West 2002); 38 C.F.R. § 3.660 (2012). 2. The 2009 unreimbursed medical expense report associated with the claims file in January 2011 was not submitted in a timely manner. 38 U.S.C.A. § 5110(h) (West 2002); 38 C.F.R. § 3.660 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The appellant was informed in the November 2011 determination by the VAROIC and in an April 2012 statement of the case of the basis for denying a finding that unreimbursed medical expenses had been timely submitted. The appellant has been provided the opportunity to submit argument and has done so. The appellant's written statements show that she had actual knowledge of what was required to substantiate her claim. On the basis of the record, the Board concludes that the requirements of the VCAA have been met because there is no indication that any additional relevant evidence exists that could be obtained or that any further notification is required. That is, the appellant does not challenge that she submitted her medical expenses in January 2011 but argues that this delay was due to illness and misinformation she received from the VA. In May 2013, the appellant was provided an opportunity to set forth her contentions during a hearing before a DRO. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c) (2) requires the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. 488. Here, during the May 2013 hearing, the DRO identified the issue on appeal as involving whether the denial of the 2009 medical expenses was proper. The DRO also sought to clarify that it was just one year, 2009, that the appellant did not submit the required form on time, that this was due to illness, and that the appellant did not have additional testimony to add. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c) (2) nor have they identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c) (2) and that the Board can adjudicate the claim based on the current record. For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the appellant and, accordingly, the Board will proceed to a decision. II. Analysis The appellant has been in receipt of death pension benefits since 1975. Death pension is an income based program. For pension purposes, payments of any kind from any source will be counted as income during the 12-month annualization period in which received, unless specifically excluded under the provisions of 38 C.F.R. § 3.272. Unless otherwise provided, expenses deductible under this section are deductible only during the 12-month annualization period in which they were paid. Id. Expenses deductible under this section include unreimbursed medical expenses. 38 C.F.R. § 3.272(g). It is the responsibility of the recipient of VA benefits to notify VA of all circumstances which will affect entitlement to receive the rate of the benefit being paid, and such notice must be provided when the recipient acquires knowledge that his or her income or other circumstances which would affect his or her entitlement to receive, or the rate of, the benefit being paid. 38 C.F.R. § 3.660(a) (1) (2012). Pursuant to 38 C.F.R. § 3.660(b)(1) (2012), where pension payments were made at a lower rate because of anticipated income, pension compensation may be increased in accordance with the facts found but not earlier than the beginning of the appropriate 12-month annualization period if satisfactory evidence is received within the same or next calendar year. In a November 2011 letter, the VAROIC in Philadelphia, Pennsylvania informed the appellant that the deadline date for her 2009 medical expenses to be submitted was December 31, 2010. Because they were not received until May 2011 (later amended to January 2011 and May 2011), no change was warranted in her VA pension. In a December 2011 letter, subsequent correspondence to VA, and in testimony before the DRO, the appellant indicated that she was too ill most of the year to submit the medical expense documents to VA and was also informed by a person she spoke to on the phone from VA that she could submit the medical expense forms in January 2011. She has also indicated that she has received death pension benefits since 1975. Basic procedural rules of the Board provide that, in computing the time limit for filing a notice of disagreement or substantive appeal, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. 38 C.F.R. § 20.305(a). In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. Id. In calculating this 5- day period, Saturdays, Sundays, and legal holidays will be excluded. Id. The Court has ruled that there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). While the Ashley case dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. In this case, the Board finds that the presumption of regularity applies with regard to the appellant contending that she was told that she could submit her expense reports in January 2011. Based on the evidence, the Board finds that the presumption of regularity is not rebutted in this case. The appellant even noted in statements received by the RO in May 2012 and 2013 and that the person she talked to at VA could have thought she was saying that her medical expense reports for 2009 were for 2010 and that what she was told was "something that [she] had never heard before", but she "took his word for it." Regardless, without making a credibility determination as to the appellant's allegations, the Board finds that a review of the record does not produce clear evidence that rebuts the presumption of regularity in this case. As such, the Board concludes that the appellant's 2009 unreimbursed medical expense report was initially received by VA in January 2011, which was after the December 31, 2010 deadline. As such, it was not timely, and the appellant's claim must be denied. 38 U.S.C.A. § 5110(h); 38 C.F.R. § 3.660. The Board has also considered the appellant's claim that she was also too ill to submit her 2009 expenses report and that is why her medical expenses were reported late. However, inasmuch as the appellant did not file the medical expense report within the requisite time period, there is no legal basis for a grant of the benefit sought; hence, the current issue of whether unreimbursed medical expenses for the year 2009 were reported in a timely manner must be denied. See 38 C.F.R. § 3.660(b) (1). ORDER The unreimbursed medical expense report with respect to calendar year 2009 was not timely submitted, and the appeal is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs