BVA9500416 DOCKET NO. 93-25 488 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Whether suspension of payments of an aid and attendance allowance under 38 U.S.C.A. § 1114(r)(1) (West 1991) beginning May 1, 1992, was proper. REPRESENTATION Appellant represented by: Robert M. Klein, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from May 1966 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1992 action by the RO to suspend payment of an aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r)(1) (West 1991). The RO had proposed this adjustment in March 1992 when information was received that the veteran had been hospitalized by VA beginning December 31, 1991. This action was taken pursuant to 38 U.S.C.A. § 5503(e) (West 1991) and 38 C.F.R. § 3.552 (1991). The April 1992 action set February 1, 1992, as the effective date for the suspension. However, a July 1992 audit of payments made to the veteran showed that the aid and attendance payments pursuant to § 1114(r)(1) were continued through April 30, 1992. Since the RO had earlier decided to withhold the aid and attendance allowance effective February 1, 1992, an overpayment to the veteran resulted. The RO, upon further investigation, determined that the veteran had been cared for at VA expense beginning in June 1989. A suspension of the § 1114(r)(1) payments retroactively to August 1989 was proposed in April 1993. The effect of this determination was that the overpayment of benefits was much greater than originally calculated. A June 1993 audit reflected the overpayments made to the veteran from August 1989 through April 1992. Consideration of a waiver of the debt created by these overpayments was undertaken in a June 1993 decision. The waiver was granted, relieving the veteran of any obligation to pay the debt created by all overpayments made from August 1989 through April 1992. As noted above, the veteran appealed the April 1992 adjustment that effectively began on May 1, 1992. He also submitted a letter dated May 3, 1993, in which he expressed his desire to appeal the April 1993 decision to suspend the § 1114(r)(1) allowance retroactively to August 1989. However, the RO has not specifically developed this latter question for appellate review, namely, whether § 1114(r)(l) allowance should have been suspended at a date earlier than May 1, 1992. The Board has limited the issue on appeal to the question of the adjustment of payments beginning May 1, 1992. The Board recognizes that the question of propriety of a such an action before May 1, 1992 is a matter that is technically yet unresolved. However, even if the issue was expanded to include such a question, the grant of the waiver of debt created by the overpayments makes this question moot. In short, there is no longer any benefit to be derived by the veteran appealing a suspension made effective before May 1, 1992. This case was received and docketed at the Board in November 1993; however, it was returned, at the RO's request, to the RO on November 10, 1994. The case was returned to the Board on November 21, 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that payment of aid and attendance at the § 1114(r)(1) rate should never have been stopped by the RO. He maintains that, while he has been a resident of a nursing home at VA expense, he has not required full-time care at VA expense. He asserts that he regularly leaves the nursing home to spend up to three days at a time with his family, where his care is provided primarily by his wife. He also contends that he meets a regulatory exception to the rule that requires aid and attendance allowances to be adjusted upon hospitalization at VA expense, namely, that he experiences quadriplegia and has loss of anal and bladder sphincter control. See 38 C.F.R. § 3.552(a)(2) (1993). He contends that, although he was admitted to a VA hospital for a short time beginning in January 1992, he remained in the hospital only upon the assurances of a VA worker that his benefits would not be adversely affected by virtue of his hospitalization. He asserts that he should not be penalized for relying on this advice. Additionally, he asserts that he was not given a full 60 days to respond to the notice of the reduction in benefits as required by regulation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's claim is not well grounded. FINDINGS OF FACT 1. The veteran was hospitalized by VA beginning on December 31, 1991. 2. He has remained hospitalized or in receipt of nursing home care at VA expense through at least July 1, 1993. 3. No evidence has been presented to show that the veteran has not received care in a hospital or nursing home unit at VA expense beginning on December 31, 1991. CONCLUSION OF LAW 1. The suspension of payments of an aid and attendance allowance under 38 U.S.C.A. § 1114(r)(1) (West 1991) beginning May 1, 1992, was not improper. 38 U.S.C.A. § 5107, 5503(e) (West 1991); 38 C.F.R. § 3.551, 3.552 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered is whether the veteran has presented a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). A well-grounded claim is defined as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Section 5107 provides that the claimant's submission of a well-grounded claim gives rise to VA's duty to assist and to adjudicate the claim. In short, VA is not required to adjudicate a claim until after the veteran has met this initial burden of submitting a well-grounded one. "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). For the reasons enunciated below, the Board finds that the veteran has not submitted evidence sufficient to find his claim well grounded. It should be noted that this case is not a question of whether the veteran qualifies for aid and attendance at the rate provided in 38 U.S.C.A. § 1114(r)(1) (West 1991). That he qualifies for payments at this rate by virtue of his service-connected disabilities was established by a rating action taken in May 1984. The § 1114(r)(1) rate was made effective from November 29, 1983, and has been in effect since. However, this is a case of whether payments should continue to the veteran at the § 1114(r)(1) rate during the time that he is admitted to a VA hospital or is receiving nursing home care at VA expense. Where any veteran in receipt of an aid and attendance allowance described in section 1114(r) of this title is hospitalized at Government expense, such allowance shall be discontinued from the first day of the second calendar month which begins after the date of the veteran's admission for such hospitalization for so long as such hospitalization continues. 38 U.S.C.A. § 5503(e) (West 1991) (see 38 C.F.R. § 3.552(b)(2) (1993) to the same effect). Hospitalization in this context has been defined to include hospital treatment at VA expense as well as any institutional, domiciliary or nursing home care at VA expense. 38 C.F.R. § 3.551(a) (1993). There appears to be no dispute of the fact that the veteran has been in receipt of nursing home care or hospital treatment at VA expense. Rather, the veteran contends that the sort of care he has required is frequently performed at home by his wife when he is on leave from a nursing home care unit. He asserts that he needs the § 1114(r)(1) allowance to cover this expense as well as transportation and other expenses related to his travel to and from the nursing home for extended weekends. However, as the veteran noted in his December 1992 testimony, regulations applicable to his situation do not make a distinction between someone who requires around-the-clock care of the kind that might be provided in a hospital and someone, like the veteran, who requires only part-time care in a nursing home. The absence of any distinction in the statute or regulation leads to a conclusion that none should be made. The statute requires that the suspension be made effective throughout the "hospitalization." The practical effect of this is that so long as any nursing home care, even if only part-time, is required at VA expense, payment of an allowance under § 1114(r) must be suspended. See 38 C.F.R. § 3.551(a)(2) (1993). In other words, a medical discharge from the kind of care contemplated by the term "hospitalization" is required to resume payments under § 1114(r). This appears to include any sort of nursing home care. § 3.551(a)(2). Therefore, while the veteran's arguments regarding the extent of care he requires have a definite flavor of common sense to them, the Board is constrained by the statutes and regulations which also appear to be premised on sound rationale: if the veteran's condition is so disabling as to require the kind of aid contemplated by § 1114(r), and this aid is provided in some institution at VA expense, no matter how significant or how insignificant, an additional allowance for that care should not be paid to the veteran. The question of whether the veteran should be discharged from the nursing home or VA hospital is a medical question beyond the jurisdiction of the Board. See 38 C.F.R. § 20.101(b) (1993). The fact that the veteran chooses to take short absences from the facility where he is admitted is of no consequence. As long as he remains under nursing home care or hospital care at VA expense and has not been medically discharged or released therefrom, payments of the § 1114(r) benefit are to be suspended. § 5503(e). The veteran and his representative argue that the veteran meets a regulatory exception to the adjustment provided for in § 3.552(b)(2). The veteran points out that an allowance for aid and attendance is to be continued during a hospitalization for those who are paraplegic, involving paralysis of both lower extremities, together with loss of anal and bladder sphincter control. 38 C.F.R. § 3.552(a)(2) (1993). This is true for all allowances of aid and attendance except for that higher level of aid and attendance mentioned in § 3.552(b)(2), namely, any § 1114(r) rate. Id. The Board disagrees with the representative's interpretation that the language of § 3.552(a)(1) and § 3.552(a)(2) is to be read as allowing the continuance of the § 1114(r) allowance in cases of paraplegia with loss of anal and bladder sphincter control. Such an interpretation would render the plain language of § 3.552(a)(2) nonsensical and would be contrary to the mandate of the statute. § 5503(e). The veteran has also raised questions about the process used to arrive at the decision to suspend the § 1114(r) payments. He has contended that he was not hospitalized on December 31, 1991, as the RO determined, but was admitted on January 2, 1992. The veteran's argument appears to be that January 2, 1992, if used to calculate the effective date for the suspension, would have resulted in a different date. The provisions of 38 C.F.R. § 3.552(b)(2) (1993) mandate that the stoppage of payments will be effective the last day of the month following the month in which the veteran is admitted for hospitalization. If admitted December 31, 1991, the suspension should have been made effective January 31, 1992. If admitted January 2, 1992, the suspension should have been made effective February 29, 1992. The RO, in its April 1992 notification to the veteran, indicated that the effective date for beginning of payment at a lesser rate was February 1, 1992. This is an indication that the RO determined that the veteran had been admitted on December 31, 1991. The Board finds that the hospital records clearly show that the veteran was admitted on December 31, 1991, and was given a pass so that he could leave and return on Thursday, January 2, 1992. Therefore, the effective date for the stoppage of payments, as mandated by § 3.552(b)(2), should have been the last day of the month following the month in which the veteran was admitted, namely January 31, 1992. The selection of February 1, 1992, as the first day of payment at a lesser rate was correct. (This analysis assumes the hospital admission date of December 31, 1991, and ignores -- for the purpose of this decision -- the veteran's residence in a VA-contract nursing home prior to that date.) However, the RO permitted payments to continue through April 1992. Therefore, the question of which day the veteran was admitted becomes insignificant. Even if the veteran's version is accepted as true, payments should have been stopped well before they actually were. It appears that the RO attempted to apply the provisions of 38 C.F.R. § 3.105 (1991) regarding revision of decisions. This provision allows a 60-day response period to any notice of reduction in compensation ratings assigned. Consequently, the RO, having first proposed a discontinuance in March 1992, allowed the § 1114(r)(1) payments to continue beyond February 1, 1992. This continuance beyond February 1, 1992, was not consistent with the requirement of § 3.552(b)(2) regarding the effective date to be assigned. The Board finds that the application of § 3.105 was not correct. The distinction to be made is that a § 1114(r)(1) suspension amounts to no more than an adjustment to a benefit for which entitlement has not changed. The veteran remains entitled to the § 1114(r)(1) rate; the effect of the discontinuance is that he does not receive payment on the entitlement. The underlying entitlement remains unchanged. Section 3.105 reductions, on the other hand, contemplate a reduction or loss of an underlying entitlement. The 60-day notice and response provisions and associated effective dates as required by § 3.105 cannot be reconciled with the effective date rule set by § 3.552(b)(2). Consequently, the Board finds that suspension of § 1114(r) payments during hospitalization is not a reduction governed by 38 U.S.C.A. § 5112 (West 1991) and its implementing regulation, 38 C.F.R. § 3.105 (1993), but is instead a suspension of payments governed by 38 U.S.C.A. § 5503(e) (West 1991), and its implementing regulation, 38 C.F.R. § 3.552 (1993). The result of the RO's attempt to apply § 3.105 is that the veteran experienced a windfall which, as already noted, became the subject of a claim for waiver of debt created by overpayments. Given the grant of the waiver by the June 1993 decision, the veteran cannot be said to have been harmed by the manner in which the § 3.552 adjustment was handled by the RO. Finally, the veteran contends that he repeatedly relied upon the advice and assurances given him by a VA social worker that his VA benefits would not be adversely affected by his hospitalization and care in a nursing home. He asserts that he should not be penalized by the downward adjustment in payments as a result. Such an error in advice is an extremely disturbing and regretful occurrence; however, the Board must point out that "erroneous advice given by a government employee cannot be used to estop the government from denying benefits." McTighe v. Brown, 7 Vet.App. 29, 30 (1994) (referring to the rule enunciated in OPM v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990)). In the veteran's case, the regulations by which the Board is bound, see 38 U.S.C.A. § 7104(c) (West 1991), require that an adjustment be made to the payments made to the veteran when hospitalized. § 3.552. Absent a presentation of evidence by the veteran that he was not so "hospitalized," his claim may not be considered well grounded. In such an instance, the Board does not have jurisdiction to act. Boeck v. Brown, 6 Vet.App. 14 (1993). Therefore, his appeal must be dismissed. The RO is advised that decisions on the merits on this claim prior to and including this decision are to be regarded as dismissals, without finality as to the merits. See Grottveit v. Brown, 5 Vet.App. 91 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As finality on the merits does not attach, there can be no prejudice to the veteran in dismissing the claim, even though the RO decision was on the merits. Compare Bernard v. Brown, 4 Vet.App. 384 (1993). ORDER A claim that payments under 38 U.S.C.A. § 1114(r) (West 1991) were improperly suspended is not well grounded; the appeal of this issue is therefore dismissed. J. E. DAY Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.