Update to my Board of Veterans Appeals claim submitted Dec. 29, 2005.

My claim effecting VA prescription over-charges for split pill supplies of well over 1.1 million veterans' remains on the docket as originally scheduled. Illinois Senator Richard Durbin made an appeal on my behalf to advance my case on the docket, because of the “general application” nature of my claim, effecting millions of veterans’. However, the requirement to advance relies on the precise language, “general application effecting other claims’. Because my claim may perhaps be the only claim, the BVA would not budge. Never mind the over-charges for those millions of veterans. For them, and me, these over-charges will continue. During my call to them, I was told the Board is presently working on claims submitted in March 2005.

Veterans lose again! BVA denied VA violation of 1722a claim
This information only, and nothing more.
Lets assume you are at the VA picking up your prescription. You and the veteran in line in front of you are prescribed the exact same identical prescription of 30 pills. Both supplies carry a copay of $8. Right? But, your prescription requires that you split your supply. You now have a two month supply (15 pills 1/2 pill per day). This $8 supply now increases in copay cost to $16, for the exact pill medication and supply that costs $8. But let's kick it up a notch, assume that veteran in front of you, having still the same prescription, his supply for a 30-day supply is instead 90 pills. Copay remains at $8 for this 30-day 90 pill supply.
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Hope this explains, how the veteran is overcharged by the VA, and just got shafted again (3/13/07) by the Board of Veterans Appeals (BVA).What veterans have known as fact, is that veterans continue to lose benefits. This is just another example.
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3/13/07 Criteria & Analysis by the Board of Veterans Appeals.
“. ...The appellant contends that the standard copayment is excessive in light of the pill splitting.” No where in my claim did I mention the word ‘standard.’ To determine what then is the standard $8, 30 day supply, one must compare 2 supplies. The VA apparently has two(2) standard supplies. A 30 day supply of 30-60-90 pills. Copayment cost $8. Then a second standard 30 day supply of 15 pills, $8 copay. Two distinct and different standards. A standard in cost, but no standard in supply. One does not have to read any further to see the unfairness of the BVA decision.
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The BVA cites my argument, 38 U.S.C.A. Sec. 1722a “Copayment for medications. Paragraph (2) The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication as described in paragraph (1).” As just described above.
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Paragraph "(a)(1) Subject to paragraph (2), The Secretary shall require a veteran to pay the United States $8 for each 30-day supply of medication furnished such veteran under this chapter on an outpatient treatment of a non-service connected disability or condition. If the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced." If the 'standard', mentioned first by the BVA describing, "The appellant contends that the standard copayment is excessive.." and according to paragraph 1, is $8 for 30-day supplies of 30,60, or 90 pills, why are veterans charged $16 for a 2 month supply of 30 pills?
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"In addition, the Board notes that the references to the cost of medication contained in 38 USC 1722a clearly pertains to VA's cost in dispensing the medication, not the cost to the appellant." That statement is incorrect. Copayment For Medication, 1722a, (listed above) clearly, makes no mention the VA's cost of dispensing medication. It mentions only the veterans' copayment obligation. A reference is made to the VA cost in the Federal Register, however, the "cost in dispensing the medication" is not the argument. It is the cost in overcharges to the veteran.
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To you, and me it is quite simple. “The Secretary may not require a veteran to pay amount in excess of the cost to the Secretary for medication as described in paragraph (1).” If one supply can be a standard 60, or 90 pill 30 day supply with a copay of $8, how can a 30 day supply of 15 pills at a copay of $8 be standard supply? Therefore, an "excess of the cost" does indeed exist.
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If given to an eight grade grammar school class this arithmetic problem of the two supplies to find the excess of the cost, what would be their answer? They too, would find that an excess of the cost does exist, “..for medication as described in paragraph (1)”
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“(b) The Secretary, pursuant to regulations which the Secretary shall prescribe may-...(1) increase the copayment amount in effect under subsection (a);..” "Pursuant to regulations" means according to the law as written. The BVA , has decided the Secretary (VA) can make law to fit, rather than prescribe the law, or regulations as written.
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Citing..Under 38 C.F.R. Sec. 17.110 Copayments for medications.
"(b) Copayments. (1) Unless exempted under paragraph (c) of this section, a veteran is obligated to pay VA a copayment for each 30-day or less supply of medication provided by the VA on an outpatient basis (other than medication administered during treatment)." If ‘administered during treatment’ meant hospitalization, that’s not what it says, or should have been worded. But it did not. It is not ambiguous in the context in which it is presented. Citing, ‘on an outpatient basis, other than medication administered during treatment’ The meaning is quite clear. A patient receiving 60, or 90 day outpatient supply is clearly a treatment of a condition, such as a heart condition, diabetes, etc.
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BVA mentions, “Thus, it is clear that the VA’s cost of filling the appellant’s 30-day prescription exceeds the $8 copayment under 38 C.F.R. Sec. 17.110.” Again the argument clearly is not the VA cost as noted in the Federal Register 12/6/2001. When determining the medication copay cost, VA factored in everything, except the cost of the medication. The BVA’s inadequacy, and mindset shown here, is for all to see.
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BVA denial in part, "...adherence in the face of overwhelming evidence in support of the result in a particular case: such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the claimant." Never mind the burden of overcharges, or the benefit flowing to well over 1.1 million veterans whose prescriptions call for pill splitting.
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It is clear, the BVA came up with this denial of overcharges claim due to national budget concerns due to the involvement in Iraq, Afghanistan, and who knows were else. Veterans did not cause that. But men and women went to military service because of it. This is how they get rewarded by a grateful nation. There are many things in life we do not like, but ignoring a veterans' cause, or the law is not an option. Who lost? Having sat in the lobby of my VA hospital and observed those that passed by, it's not hard to see, there are many who could use any help they can get, as well those returning from Iraq, Afghanistan, and Walter Reed.
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I have started the filing process for an appeal with the United States Court of Appeals for Veterans Claims.

38 USC 1722a Vacated and remanded.

Regarding my claim, VA violation of 1722a, I have been advised......

In the United States Court of Appeals for Veterans Claims. 7/11/2007. "James Nicholson Secretary of veterans Affairs respectfully moves the Court to vacate and remand the march 13, 2007 decision of the Board of veterans Appeals..."

"The file was not received or logged at the Hines VA Medical facility and moreover, was not returned to the VA Madison medical facility. Upon discovering the file was lost, the file was re-built by the VA medical facility...Appellant's file was lost and has been re-built, as such, the evidence necessary for effective judicial review...is now only available in the re-built file...the original file relied upon by the Board [CAVC] in rendering the decision on appeal is no longer available for the parties and the court,....the Secretary cannot use the re-built file because the Board [BVA] did not rely on that file in rendering it's March 13, 1007, decision."

"Therefore, the Secretary respectfully moves the Court to vacate and remand the March 13, 2007, decision, in order to allow the Board [BVA] to re-adjudicate Appellant's case with the re-built file."

Now, the good news part of all this, as advised by legal counsel handling veterans‘ claims, “I have to admit, this is unique, in a good sense for you.,, The VA has asked the Court to remand your appeal to the BVA to make a new decision regarding the co-payments. This, in effect, is a win, although ...The only remedy the court issues, with only a rare exception, is a remand. Reversals (an outright win for the appellant) can be counted on one hand on an annual basis. So this is what we believe would happen anyway, only it would be a year or so down the line.”

So, I say to all that have been following this 1722a issue, is, let’s go with the good news feeling that I got out of this. Although, while we wait this out, illegal co-payment over-charges will continue for thousands, upon thousands, of veterans. I will keep you advised.