Citation Nr: 1343086	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  12-02 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Health Administration Center in Denver, Colorado


THE ISSUE

Entitlement to benefits through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) as the Veteran's spouse prior to July 1, 2010.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to July 1970 and from November 1979 to February 1983.  The appellant is the Veteran's spouse.  

This matter comes to the Board of Veterans Appeals (Board) from a September 2010 decision of the Health Administration Center (HAC) in Denver, Colorado, that denied entitlement to CHAMPVA benefits for the appellant. 

In June 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A copy of the transcript is of record.  

The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in this claims file. 


FINDING OF FACT

Prior to July 1, 2010, the appellant had not yet reached the age of 65, she was enrolled in Medicare Part A, but not enrolled in Medicare Part B.  



CONCLUSION OF LAW

The criteria for eligibility for CHAMPVA benefits for the appellant prior to July 1, 2010, have not been met.  38 U.S.C.A. § 1781 (West 2002 & Supp. 2012); 38 C.F.R. § 17.271 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under 38 U.S.C.A. § 5103, VA must notify a claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide.  However, the Board finds that VA was not required to provide the appellant with such notice, as this case is one where as a matter of law, entitlement to the benefit claimed cannot be established.  See 38 C.F.R. § 3.159(b)(3)(ii) (2012).  This extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts.  See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003).  As the pertinent facts in this case are undisputed, and the law as mandated by statute, and not the evidence, is dispositive of this appeal, the Board finds that no further action is required pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (finding that 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).  


Decision  

The appellant contends that she was never informed by the HAC that she had to be enrolled in both Medicare Parts A and B in order to remain eligible for CHAMPVA benefits.  She asserts that because HAC had a duty to inform her of the necessary requirement mentioned above and failed to do so, she should be entitled to CHAMPVA benefits prior to July 1, 2010.  

CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs and is administered by the Health Administration Center (HAC), Denver, Colorado.  Under 38 U.S.C. 178, VA is authorized to provide medical care in the same or similar manner and subject to the same or similar limitations as medical care furnished to certain dependents and survivors of active duty and retired members of the Armed Forces.  The CHAMPVA program is designed to accomplish this purpose.  Under CHAMPVA, VA shares the cost of medically necessary services and supplies for eligible beneficiaries.  38 C.F.R. § 17.270 (2012). 

The appellant claims entitlement to CHAMPVA benefits on the basis that she is the spouse of the Veteran, who the record reflects was found by VA to be permanently and totally disabled as of January 19, 1995.  See the December 1997 rating decision; 38 C.F.R. § 17.271(a)(1) (2012).  However, individuals under age 65 retain CHAMPVA benefits eligibility as 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) (2012).  

In this case, the evidence reflects that the appellant enrolled in Medicare Part A, effective March 1, 2009, and in Medicare Part B, effective July 1, 2010.  See the undated copy of the appellant's Medicate Health Insurance card.  At the June 2012 Board hearing, the appellant testified that she was not aware that she had to be enrolled in both Medicare Parts A and B in order to be entitled to CHAMPVA benefits.  She explained that the HAC did not inform her of the stated requirement when they had a duty to do so.  The appellant further added that if she had been told initially about enrolling in both Medicare Parts A and B, she would have done so, and would have been eligible for CHAMPVA benefits for the entire time period on appeal.  

The Board recognizes that the appellant communicated with VA throughout this process and explained her reasoning for not enrolling in Medicare Part B earlier than the effective date of July 1, 2010.  The Board also acknowledges the appellant's contention that the HAC failed to inform her of enrolling in both Medicare Parts A and B for CHAMPVA benefits.  However, such is not the case.  Upon review of the evidentiary record, the appellant received an initial award letter regarding her eligibility for CHAMPVA benefits in August 2004.  Along with providing the appellant with an authorization card and claim forms, the HAC also provided her with a CHAMPVA handbook.  A copy of this handbook can be found online as well.  See http://www.va.gov/hac/forbeneficiaries/champva/handbook.asp.  It is noted on the website that the handbook is not updated yearly, so the Board presumes that the information contained in the online handbook is the same information the appellant received in August 2004.  More importantly, in the handbook, there is a section on eligibility requirements which states that if you are under the age 65 and eligible for Medicare Part A, you must "always" have Medicare Part B to be eligible for CHAMPVA benefits.  Id.  Therefore, the Board finds that absent evidence of Medicare Part B enrollment at the time of her eligibility for Medicare Part A, she is not eligible for CHAMPVA benefits prior to July 1, 2010.  

While the Board is sympathetic to the appellant and the stress that this matter has caused, it is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Regardless of whether the HAC failed on its duty to notify, she still did not have Medicare Part B benefits prior to July 1, 2010, and that is a necessary legal prerequisite to obtaining CHAMPVA benefits. 

Unfortunately, there simply is no legal provision pursuant to which the Board may grant the benefits sought by the appellant.  Therefore, entitlement to CHAMPVA benefits prior to July 1, 2010, must be denied. 


ORDER

Eligibility for benefits through CHAMPVA for the appellant prior to July 1, 2010, is denied.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs