Citation Nr: 20021917 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-20 800 DATE: March 27, 2020 ORDER The Veteran did not timely file a claim for unreimbursed medical expenses for calendar years 2012 and 2013 for purposes of receiving an adjustment to VA pension benefits, and his appeal is denied. FINDING OF FACT In April 2015, the Veteran filed VA Form 21P-8416, Medical Expense Report, on which he reported unreimbursed medical expenses for the calendar years 2012 and 2013, which was after the deadline of December 31, 2013, and December 31, 2014, respectively, to file such claim. CONCLUSION OF LAW The criteria for reporting unreimbursed medical expenses to receive an adjustment to the Veteran’s VA pension benefits for the calendar years 2012 and 2013 have not been met. 38 U.S.C. §§ 1521, 1522, 5110; 38 C.F.R. §§ 3.272, 3.660. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Army from May 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in December 2019. The Veteran asserts that he is entitled to an adjustment to his VA pension benefits for the unreimbursed medical expenses that he claimed on the VA Form 21P-8416, Medical Expense Report, he filed in April 2015. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting countable annual income from the maximum annual pension rate (MAPR). The MAPR is adjusted from year to year. In determining countable annual income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded by law. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. Exclusions from countable income for VA pension purposes include, as relevant to the instant claim, unreimbursed medical expenses. 38 C.F.R. § 3.272, 3.278. Where pension was paid at a lower rate based on anticipated income, pension may be increased in accordance with the facts found if satisfactory evidence of entitlement is received within the same or next calendar year. 38 U.S.C. § 5110 (h); 38 C.F.R. § 3.660(b)(1). The essential facts in this matter are not in dispute. The Veteran was awarded eligibility to receive VA nonservice-connected pension benefits and special monthly pension benefits based on the need for aid and attendance since June 29, 2011. Periodically, his benefits have been adjusted based on the submission of timely medical expense information. See e.g. March 2015 notification. In a VA Form 21P-8416, Medical Expense Report, received in April 2015, the Veteran reported medical expenses for 2012 and 2013. The form was undated, but the fax receipt shows it was received on April 16, 2015. A duplicate copy was sent, and date stamped as received by the RO on May 14, 2015. In the November 2015 administrative decision, the Veteran was notified that no action was necessary for his pension rate payable for the years 2012 and 2013 since he filed his medical expense report after the December 31, 2013, and December 31, 2014, deadlines, respectively. The Veteran conceded the medical expense report was untimely in his December 2015 notice of disagreement (NOD) but claimed that he lost his home and the papers were in storage. He presented similar testimony before the undersigned, but he further explained the records were destroyed by a water leak in the storage unit. BVA Transcript at 4. Essentially, this amounts to an argument for the application of equitable tolling of the time period for filing his medical expense report. VA has promulgated a regulation that allows for time periods to be tolled based on good cause. See 38 C.F.R. § 3.109(b). In relevant part, this regulation reads, “[t]ime limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown.” Id. The application of equitable tolling within the context of Veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L.Ed.2d 435 (1990), wherein the United States Supreme Court held that equitable tolling may be applied to toll a statute of limitations “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. Although the current case-law is somewhat unclear as to under what circumstances equitable tolling may be considered, the Board will address whether the period for filing the medical expense report should have been tolled for equitable reasons in the instant case. First, the Veteran has not asserted, nor is there any identified deficiency of notice. Next, the Veteran has not asserted that he was incapable of understanding the filing deadlines. In fact, the evidence of record contradicts this assertion. Notably, in his NOD, the Veteran indicated that he knew that the medical expense report was untimely filed. Further, the Veteran has not claimed he was mentally and physically incapacitated preventing him from timely filing his medical expense report. Importantly, the Veteran was able to file other medical expense reports in a timely manner for purposes of receiving an adjustment to VA pension benefits. Finally, the Veteran testified that he was unable to file his medical expense reports because he lost his home and his records (including medical receipts) were destroyed by water damage in a storage locker. However, there is no evidence that the Veteran filed a request for extension of the time limit for filing, given his predicament. Under these circumstances, the time limits within the Veteran was required to file his medical expense report cannot be tolled on constitutional grounds for equitable reasons. Pursuant to 38 C.F.R. § 3.66 (b)(1), the Veteran had until December 31, 2013, to submit a timely medical expense report for a benefit recalculation for the year 2012 and until December 31, 2014, for the year 2013. As the Veteran’s VA Form 21P-8416, Medical Expense Report, was received after the December 2013 and December 2014 deadlines, the form was not timely submitted and as such his 2012 and 2013 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. § 3.660 (b)(1). In this regard, a statement from J.M. submitted in February 2020 regarding the hours per week she assisted the Veteran, and the amount she charged per hour, in 2012 and 2013 is also untimely. Id. In summary, based on the available evidence, the provisions of 38 C.F.R. § 3.660 (b)(1) are dispositive in this matter. As the Veteran did not timely file his claim for unreimbursed medical expenses for the calendar years 2012 and 2013, it must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.