Citation Nr: 1340224 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-17 736A ) DATE ) ) On appeal from the Department of Veterans Affairs Health Administration Center in Denver, Colorado THE ISSUE Eligibility for Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) benefits for the Appellant from December 1, 2002, to August 31, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. The Appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision by the Health Administration Center (HAC) of the Department of Veterans Affairs (VA), in Denver, Colorado. The May 2012 decision found that the Veteran's spouse was not eligible for CHAMPVA benefits from December 1, 2002, to August 31, 2012, and that a previous finding of eligibility for CHAMPVA benefits was awarded erroneously. 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 For the period from December 1, 2002, to August 31, 2012, the Appellant had not yet reached the age of 65, and she was enrolled in Medicare Part A, but not Medicare Part B. CONCLUSION OF LAW The criteria for eligibility for CHAMPVA benefits for the Appellant from December 1, 2002, to August 31, 2012 were not met. 38 U.S.C.A. § 1781 (West 2002 & Supp. 2013); 38 C.F.R. § 17.271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA must notify a claimant of the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. However, the Board finds that VA is not required to provide the Appellant with that notice because entitlement to the benefit claimed cannot be established as a matter of law. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(3)(ii) (2013). That extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004); Valiao v. Principi, 17 Vet. App. 229 (2003). As the pertinent facts in this case are undisputed, and the law is dispositive of the appeal, the Board finds that no further notice or development is required. Mason v. Principi, 15 Vet. App. 129 (2002); Sabonis v. Brown, 6 Vet. App. 426 (1994) (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). Eligibility for CHAMPVA Benefits CHAMPVA is a health benefits program in which VA shares the cost of certain health care services and supplies with eligible beneficiaries. Effective October 1, 2001, CHAMPVA benefits were extended to beneficiaries age 65 and older. CHAMPVA is managed by VA's HAC in Denver, Colorado. CHAMPVA benefits are awarded to survivors and dependants of certain Veterans. 38 U.S.C.A. § 1781 (West 2002). The Appellant claims entitlement to CHAMPVA because she is the spouse of the Veteran, who was found to be permanently and totally disabled as of December 12, 2002. 38 C.F.R. § 17.271 (a)(1) (2013). Individuals under age 65 retain CHAMPVA eligibility as a 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) (2013). The Appellant enrolled in Medicare Part A in September 1996, but she did not enroll in Medicare Part B at that time. In November 2007, the Appellant applied for CHAMPVA benefits, stating on her application form that she was not eligible for Medicare. In a December 2007 Other Health Insurance (OHI) Certification for CHAMPVA benefits, the Appellant stated that she was covered by a private PPO; she did not indicate that she was enrolled in Medicare Part A. Later in December 2007, the Appellant was informed that she was eligible for CHAMPVA benefits retroactively to December 12, 2002. In a January 2008 OHI Certification, the Appellant again indicated that she was covered by a private PPO, and she again failed to indicate that she was enrolled in Medicare Part A. In September 2011, the HAC informed the Appellant that she needed to submit a copy of her Medicare Card before her 65th birthday in order to continue using her CHAMPVA benefits. The September 2011 letter further informed the Appellant that she needed to be enrolled Medicare Parts A and B in order to use CHAMPVA benefits. In March 2012, the HAC re-sent that letter to the Appellant. In a May 2012 OHI Certification, the Appellant responded, enclosing a copy of her Medicare Card, and stated that she was enrolled in Medicare Part A but not Medicare Part B. In May 2012, the HAC noted that the Appellant was not enrolled in Medicare Part B, and it determined that she was ineligible for CHAMPVA. In June 2012, the Appellant stated that she informed VA in a telephone call at the time of her December 2007 application for CHAMPVA benefits that she was enrolled in Medicare Part A. The Appellant said that she was told that she was qualified to receive benefits, and that it was accordingly not the Appellant's mistake that VA qualified her for CHAMPVA benefits. The Appellant attained the age of 65 years in September 2012, and she enrolled in Medicare Part B at that time. In October 2012, the Appellant stated that she "felt they knew" that she was enrolled only in Medicare Part A "from the beginning." The Appellant indicated that she was unaware that she needed to have Medicare Part B in order to be eligible for CHAMPVA benefits. In this case, the Appellant must have had both Medicare Part B and Medicare Part B to be eligible for CHAMPVA benefits from December 1, 2002, to August 31, 2012. The Appellant did not have coverage under Medicare Part A and Medicare Part B until September 1, 2012. Therefore, prior to that time, she was not entitled to CHAMPVA benefits, including during the period in question, from December 1, 2002 to August 31, 2012. To the extent that the Appellant presents an argument based on equity in that she relied on erroneous payments of CHAMPVA benefits for the initial erroneous grant of CHAMPVA benefits from December 1, 2002, to August 31, 2012, which is now to her detriment, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The Board further 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. Smith v. Derwinski, 2 Vet. App. 429 (1992); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). The Board acknowledges that the Appellant has argued that she was consistently misinformed telephonically regarding CHAMPVA eligibility, and that she informed VA that she was covered only by Medicare Part A. The Board finds that those statements are less persuasive because the evidence of record indicates that the Appellant consistently denied receiving Medicare coverage from the time of her CHAMPVA application until May 2012. Furthermore, even if the Board were to assume that the Appellant was misinformed about the requirements for CHAMPVA eligibility, being the recipient of misinformation regarding the claim cannot estop the government from denying a benefit. McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997); Elsevier v. Derwinski, 1 Vet. App. 150 (1991); Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). While the Board acknowledges the unfortunate nature of the Appellant's case, there is no legal provision pursuant to which the Board may grant the benefits sought. ORDER Eligibility for CHAMPVA benefits for the Appellant from December 1, 2002, to August 31, 2012, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs