Citation Nr: 1738689 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 15-43 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether expenses incurred at the Langston House in 2012 may be recognized as unreimbursed medical expenses (UMEs) for VA pension purposes. ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision by Department of Veterans Affairs Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT While at the Langston House in 2012, the Veteran was maintained in an assisted living facility (ALF) because he needed to live in a protected environment and VA had determined that the Veteran was entitled to the aid and attendance (A&A) allowance during this period. CONCLUSION OF LAW The Veteran's expenses at the Langston House incurred in 2012 are recognized as UMEs for VA pension purposes and are deductible from countable income for VA pension purposes. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. §§ 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Nonservice-connected pension is a benefit payable by VA to a veteran when certain requirements are met. See 38 U.S.C.A. § 1521 (West 2014). The amount of pension benefits payable shall be reduced by the amount of the countable annual income of the veteran. See 38 C.F.R. § 3.23 (2017). Certain expenses shall be excluded from countable income for VA pension purposes. See 38 C.F.R. § 3.272 (2017). As applicable in this case, exclusions from countable income may include UMEs when certain requirements are met. See 38 C.F.R. § 3.272(g) (2017). At the outset, the Board notes that some records referenced by the record are not associated with the claims file. In this regard, the Veteran apparently (though it is not of record before the Board) filed a claim in May 2012 for nonservice-connected pension benefits. An August 2013 rating decision granted entitlement to nonservice-connected pension and to special monthly pension based on the need for aid and attendance, both effective December 10, 2010. The notification letter accompanying the August 2013 rating decision noted the family medical expenses and countable income amounts used to adjust the Veteran's pension benefits for the relevant period. The notification letter stated that "[w]e were unable to verify any paid assisted living expenses paid to Langston House and could [sic] consider them in determining your pension benefit." In July 2014, the Veteran submitted a Notice of Disagreement (NOD) as to the award letter and specified that "I do not believe my assisted living costs were considered in the February 2012 and December 2012 calculations to determine my pension. I believe I was underpaid for 2012." Of record is an April 2012 letter (submitted in September 2014) from the administrator of the Langston House. The letter noted that the Veteran moved into the Langston House in February 2012 and noted that "he will be receiving assistance with ordering [and] medication management, meal preparation, ambulation in apartment and around the facility, Oxygen supplies and set up." It was noted that the Veteran's monthly cost of care was $2008. The Board notes that an August 2013 communication with the Veteran (documented on a VA Form 27-0820 (Report of General Information) indicated that the Veteran moved into a different facility in September 2012. As such, the evidence indicated that the Veteran lived at the Langston House from February 2012 to September 2012. The Board notes that the VA Adjudication Procedures Manual (herein the M21-1) provides relevant guidance applicable in this case. The M21-1 states that "[i]f a [Veteran] is maintained in an ALF because the person needs to live in a protected environment, all unreimbursed fees paid to the ALF for room-and-board, custodial care, and medical or nursing care are deductible expenses, as long as" either "a licensed physician certifies that the person has a medical condition that makes such a level of care necessary, or VA has determined the person is entitled to the A&A or housebound allowance." See M21-1, Part V, Subpart iii, Chapter 1, Section G.3.l. The M21-1 further states that "[i[f ALF fees are allowed, then all reasonable fees paid to the facility for personal care of the disabled person and maintenance of the disabled person's immediate environment may be allowed." In this case, it is not entirely clear whether the Langston House is considered an ALF for VA pension purposes. See M21-1, Part V, Subpart iii, Chapter 1, Section G.3.b (stating that an ALF "means a facility designed to assist people who need help with daily activities"). The AOJ, however, referenced the Langston House as an ALF. In this regard, the August 2013 notification letter accompanying the August 2013 rating decision referenced the "assisted living expenses paid to Langston House" and the September 2015 Statement of the Case (SOC) noted the issue on appeal as "[w]hether or not we can accept 2012 Assisted Living Facility fees" and discussed the expenses from the Langston House in 2012 in the reasons and bases section. Also, the Veteran and his prior representative variously referenced assisted living costs, to include in the representative's September 2014 statement that stated that the Veteran was a resident of "Langston House Assisted Living." As such, and resolving any reasonable doubt in the Veteran's favor, the Board will accept that Langston House was an ALF for VA pension purposes. Turning to the issue of whether the Veteran was "maintained in an ALF because the person needs to live in a protected environment," the Board finds that he was. In this regard, the August 2013 rating decision referenced two VA Form 21-2680s (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) completed by what appeared to be private doctors, though these examination reports are not of record before the Board. The rating decision discussed the examination reports and stated that "[i]t was also noted you have an unsteady gait and very poor balance, which suggests you may not be able to protect yourself from the hazards of your daily environment." In addition, an October 2012 VA examination report (which the Board notes was dated approximately one month after the Veteran no longer resided at the Langston House, but presumably still contained information reflecting the Veteran's status during the relevant period) stated that "[t]he Veteran does not fully have the capacity to protect himself from the hazards and dangers of his daily environment. That is why he lives in an assisted living facility." Based on this evidence, the Board finds that the Veteran was maintained in an ALF (the Langston House) because he needed to live in a protected environment. As noted, the M21-1 provides that "[i]f a [Veteran] is maintained in an ALF because the person needs to live in a protected environment, all unreimbursed fees paid to the ALF for room-and-board, custodial care, and medical or nursing care are deductible expenses, as long as," as relevant, "VA has determined the person is entitled to the A&A or housebound allowance." See M21-1, Part V, Subpart iii, Chapter 1, Section G.3.l. As outlined, the Board has found that the Veteran was maintained in an ALF (the Langston House in 2012) because he needed to live in a protected environment. In addition, as referenced, in the August 2013 rating decision the AOJ granted entitlement to special monthly pension based on the need for aid and attendance, effective December 10, 2010. As such, VA had determined that the Veteran was entitled to the A&A allowance during the relevant 2012 time period. In accordance with the M21-1, the Langston House UMEs incurred in 2012 are therefore deductible expenses for VA pension purposes. In sum, the Board finds that while at the Langston House in 2012, the Veteran was maintained in an ALF because he needed to live in a protected environment and VA had determined that the Veteran was entitled to the A&A allowance during this period. As such, the Board concludes that the Veteran's expenses at the Langston House incurred in 2012 are recognized as UMEs for VA pension purposes and are deductible from countable income for VA pension purposes. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. §§ 3.272 (2017). The Veteran's claim is therefore granted. The Board additionally notes that, as referenced, the September 2015 SOC listed the issue on appeal as "[w]hether or not we can accept 2012 Assisted Living Facility fees" and in the reasons and bases section stated that "we cannot accept the expenses from Langston House for 2012." As such, the Veteran's expenses at the Langston House incurred in 2012 appear to be the relevant expenses in this appeal. The Board notes, however, that the August 2013 notification letter accompanying the August 2013 rating decision did not note that the Veteran's assisted living fees were considered as medical expenses until the period from February 1, 2013. An August 2013 VA Form 21-0820b (Report of Nursing Home or Assisted Living Information) form noted that the Veteran was a resident of the facility (Bailey Manor) from September 2012 and noted that he "lives in the assisted living portion of the facility." As noted, the AOJ accepted the Veteran's assisted living fees as medical expenses from February 1, 2013 and the Board has recognized the expenses incurred at the Langston House in 2012 (from February 2012 to September 2012). To the extent that such remains an outstanding issue, the evidence of record before the Board does not indicate that the Veteran's assisted living fees between September 2012 and February 2013 are distinguishable from the other assisted living fees that VA has otherwise accepted as UMEs, though the AOJ will address this issue in the first instance if necessary. ORDER Entitlement to recognition of expenses incurred at the Langston House in 2012 as UMEs for VA pension purposes is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs