Citation Nr: 19109490 Decision Date: 02/07/19 Archive Date: 02/06/19 DOCKET NO. 17-56 169A DATE: February 7, 2019 ORDER Exclusion of calendar year 2015 medical expenses from countable income for non-service-connected pension purposes is denied. FINDING OF FACT A March 2017 submission by the Veteran pertaining to medical expenses paid in 2015 was not timely filed. CONCLUSION OF LAW As a timely VA Form 21-8416 (Medical Expense Report) for the year of 2015 was not received by VA, medical expenses may not be excluded from countable income for pension purposes for that year. 38 U.S.C. § 5110(h); 38 C.F.R. §§ 3.272, 3.660, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1961 to July 1965. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board observes that in a June 2018 letter, the Veteran elected to participate in VA’s Rapid Appeals Modernization Program (RAMP), selecting the option for “Higher-Level Review.” However, in correspondence dated in June 2018, he was informed that he was not eligible for RAMP processing. The Board will consider his appeal pursuant to ordinary procedures. Timeliness of the Veteran's calendar year 2015 medical expense report. The Veteran asserts that, but for Hurricane Matthew, he would have filed a timely medical expense report regarding calendar year 2015. As such, he argues his medical expenses, paid during 2015, should be used to reduce his income for that year and increase his non-service-connected pension benefit. Disability pension will be paid to a Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from non-service-connected disability not the result of willful misconduct. 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23. The purpose of VA pension benefits is to provide a subsistence income for veterans of a period of war who are totally disabled and who are otherwise unable to maintain a basic, minimal income level. Pension benefits are based upon total family income and the amount of benefits is adjusted based upon the number of dependents the veteran supports. Recipients of non-service-connected pension benefits are required to report any changes in income and number or status of their dependents in a timely fashion. 38 U.S.C. § 1502(a); 38 C.F.R. § 3.3(a)(3)(vi)(B); see also 38 C.F.R. § 3.340. Under the law, the maximum annual rate of non-service-connected pension payable to a veteran varies according to the number of dependents. The rate of pension payable to an entitled payee is based on the amount of countable income received. Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. See 38 C.F.R. § 3.660 Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which it was received unless it is specifically excluded by regulation. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a Veteran for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the maximum annual rate of pension. Id. The essential facts in this matter are not in dispute. In March 2017, VA received a VA Form 21-8416, Medical Expense Report, from the Veteran for medical expenses incurred during calendar year 2015. The time limit to submit a claim to VA for benefit recalculation for 2015 was December 31, 2016. As the Veteran’s Medical Expense Report was received after December 31, 2016, the form was not timely submitted and, as such, his 2015 medical expenses may not be excluded from countable income for pension purposes for that year. 38 C.F.R. § 3.660(b)(1). The Board is sympathetic to the Veteran’s situation in that he had difficulty obtaining documents and submitting expenses due to Hurricane Matthew. However, as noted by the RO, the Under Secretary for Benefits has not afforded a filing extension due to natural disasters pursuant to 38 C.F.R. § 3.1(r) for Hurricane Matthew, as was extended in connection with Hurricane’s Harvey and Maria. Therefore, an extension of the deadline to submit the 2015 Medical Expense Report may not be afforded. As the Veteran did not timely file his claim for unreimbursed medical expenses for the calendar year 2015, exclusion of calendar year 2015 medical expenses from countable income for non-service-connected pension   purposes must be denied due to absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel