Citation Nr: 21061373 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-53 104A DATE: October 1, 2021 REMANDED Whether the change in the Veteran's means test eligibility category from exempt to copay required in the VA healthcare system for income year 2016 was proper is remanded. REASONS FOR REMAND The Veteran had active duty in the Air Force from May 1974 to June 1980. This claim was previously before the Board of Veterans' Appeals (Board) in October 2019 and October 2020, at which time the Board remanded it for additional development. Following a review of the record, the Board has found that the directives outlined in the October 2020 remand have not been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Income Verification Match (IVM) is a secure procedure by which VA may obtain income information from the Social Security Administration (SSA) and the Internal Revenue Service (IRS), in order to verify income amounts that are reported to VA. The adjudication of this matter involves information provided by SSA and the IRS for 2016. However, to avoid disclosure of sensitive information, the Board's decision does not directly cite dollar amounts included in any IVM report that has not been verified by the Veteran. Therefore, the text of this decision is not subject to the additional protections required under the IVM procedures. Whether the change in the Veteran's means test eligibility category from exempt to copay required in the VA healthcare system for income year 2016 was proper is remanded. VA shall furnish hospital care and medical services to any veteran who is unable to defray the expenses of necessary care. 38 U.S.C. §§ 1710(a)(2)(G). For the purposes of 38 U.S.C. § 1710(a)(2)(G), a veteran shall be considered to be unable to defray the expenses of necessary care if his attributable income is not greater than a specified income threshold, which is updated annually. 38 U.S.C. § 1722(a)-(c). If a veteran does not qualify under 38 U.S.C. § 1710(a)(2)(G), he or she will be responsible for a copayment for VA healthcare services that relate to nonservice-connected disabilities. The Veteran's copay means test eligibility category was changed from exempt to copay required for income year 2016 due to income shown on the IVM reports from the IRS and SSA for 2016 for him and his wife that is above the National Means Test of $38,489. In the October 2020 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to notify the Veteran, in writing, that he should submit documentation of medical expenses from 2016 such as billing statements, proof of payment, and insurance explanation of benefit forms. Such supporting evidence is needed as the Veteran submitted his 2016 federal tax return and showed $30,681 of medical expenses. On the other hand, a February 2019 letter from the Health Eligibility Center (HEC) and February 2019 supplemental statement of the case (SSOC) stated that the Veteran submitted $1,588 in medical expenses. The Veteran's record does not contain documentation of his 2016 medical expenses. Additionally, the Veteran wrote on his December 2019 substantive appeal (VA Form 9) that he received Supplemental Security Income (SSI) of $15,750 in 2016. The Form 1099 from SSA submitted by the Veteran does not indicate whether these benefits were SSI. SSI is a needs-based benefit and assures a minimum monthly income to needy people with limited income and resources. In this, it is very similar to VA's pension programs and, as such, is considered welfare and excluded from countable income. 38 C.F.R. § 3.272(a). In the October 2020 remand, HEC was instructed to underate appropriate development to determine whether the Veteran's 2016 Social Security income was SSI. In a May 2021 memorandum, VA found that per the Veteran's 2016 SSSA-1099, $5,338 from Social Security was deducted, leaving a total of $15,750 as countable income for 2016. Further insight into how HEC determined the $15,750 was countable income and not SSI was not provided. The Board finds that such explanation is needed as the foundational issue remains the Form 1099 from SSA submitted by the Veteran does not indicate whether these benefits were SSI. Finally, there is no record of any written notice sent to the Veteran regarding a request for documentation of medical expenses from 2016. The May 2021 memorandum simply states that the Veteran did not respond to the October 2020 Board remand. The Board finds the AOJ's lack of action is a Stegall violation. The remand instructions explicitly state for the AOJ to contact the Veteran and alert him of the need for documentation of 2016 medical expenses, not to rely on the Board remand to fulfill this duty. Therefore, on remand, the Veteran must be notified of the need for missing evidence. The matters are REMANDED for the following action: 1. Notify the Veteran in writing that he should submit documentation of 2016 medical expenses for the Veteran and his spouse, such as billing statements, proof of payment, and insurance explanation of benefits statements. 2. Perform any additional necessary development to determine whether the Veteran's 2016 income from SSA was SSI, and associate any evidence of development with the claims file. 3. After completing the above actions, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran should be issued a SSOC, and an appropriate period of time should be allowed for response before the file is returned to the Board for further appellate consideration. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.