Citation Nr: 18145509 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-11 685 DATE: October 29, 2018 ORDER Recognition of medical marijuana purchases as unreimbursed medical expenses for the purpose of reducing countable annual income for nonservice-connected pension benefits is denied. FINDING OF FACT Congress has determined marijuana has no acceptable medical use and has classified it as a Schedule I substance under the Controlled Substance Act. CONCLUSION OF LAW Medical marijuana purchases cannot be recognized as unreimbursed medical expenses for the purpose of reducing countable annual income for nonservice-connected pension benefits. 21 U.S.C. § 812, 38 U.S.C. § 1503 (2012); 38 C.F.R. § 3.272 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota, that denied the Veteran’s request for recognition of medical marijuana purchases as unreimbursed medical expenses for the purpose of reducing his countable annual income for nonservice-connected pension benefits. The Board notes the Veteran requested a Board hearing via live videoconference at his local Regional Office (RO) on his April 2014 substantive appeal (VA Form 9). The Veteran was initially scheduled for the requested hearing in March 2017, but asked for the hearing to be rescheduled to a later date. The Veteran’s hearing was rescheduled for June 2018, but he failed to report. The Veteran has not provided a reason for his absence or requested that the hearing be rescheduled; therefore, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Nonservice-connected pension benefits are paid at the applicable maximum annual pension rate (MAPR), reduced by the amount of countable annual income received by the claimant. 38 U.S.C. §§ 1503, 1521(b); 38 C.F.R. §§ 3.3, 3.23. If the claimant’s income is less than the MAPR, VA will pay benefits to bring his or her income up to that level. If the claimant’s income exceeds the MAPR, nonservice-connected pension benefits are not warranted. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. An exclusion is provided for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the MAPR. 38 U.S.C. § 1503(a)(8); 38 C.F.R. § 3.272(g). Here, the Veteran submitted a medical expense report in February 2013 seeking a reduction in his countable annual income for medical marijuana purchases throughout the year 2012. The Board notes Congress has determined marijuana has no acceptable medical use and has classified it as a Schedule I substance under the Controlled Substance Act; therefore, VA cannot recognize medical marijuana purchases as unreimbursed medical expenses for the purpose of reducing the Veteran’s countable annual income for nonservice-connected pension benefits. See 21 U.S.C. § 812(c), 38 U.S.C. § 1503; 38 C.F.R. § 3.272. The Board acknowledges the State of California has authorized the use of medical marijuana; however, in Gonzales v. Raich, the United States Supreme Court held Congress has the power to prohibit the local cultivation and use of marijuana otherwise authorized by state law pursuant to its authority to “regulate Commerce with foreign Nations, and among the several States.” 575 U.S. 1 (2005). As a result, the Supremacy Clause of the United States Constitution requires that the federal law prevail over the state law. Id. at 29. Although the Board is sympathetic to the Veteran’s desire to ameliorate the effects of his mental health disorder, it is bound by the laws passed by Congress, including those prohibiting the use of marijuana for any purpose. Thus, the Veteran’s appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel