STATES COURT OF VETERANS APPEALS
Richard S. Levy, Appellant,
of Veterans Affairs, Appellee.
from the Board of Veterans' Appeals
November 9, 1993 )
Richard S. Levy, pro se.
Lou Keener, General Counsel, Norman G. Cooper, Assistant General Counsel,
R. Randall Campbell, Deputy Assistant General Counsel, and Jacqueline
M. Sims were on the brief for the appellee.
NEBEKER, Chief Judge, and KRAMER and HOLDAWAY, Judges.
Chief Judge: Appellant, Richard S. Levy, appeals from a September 15,
1992, decision of the Board of Veterans' Appeals (BVA) which determined
that he was not entitled to hospital or nursing home care without co-payment.
He filed an informal brief and a motion for a court order in his favor.
The Secretary filed a brief. The Court affirms the BVA's decision.
Appellant has qualifying service (active and reserve). In November 1990,
he applied for outpatient hospital care at a Department of Veterans'
Affairs (VA) outpatient clinic. R. at 5. At that time, he completed
a financial statement. Based on his income and assets, the VA placed
appellant in a category which requires veterans to pay a deductible
for hospital care. R. at 24. Appellant takes issue with the income-based
The Secretary argues that, due to appellant's income and resources,
he is ineligible for VA medical care without co-payment. In order for
appellant to be eligible for VA hospital care without co-payment, his
income in the previous year must not have exceeded the threshold amount
set by statute. See 38 U.S.C.A. ù 1722(b)(1)(B) (West 1991).
Moreover, the VA may determine whether it is reasonable for appellant
to consume part of his estate corpus for his maintenance. See 38 U.S.C.A.
ù 1722(d)( 1). Appellant argues that, because of his service,
he had a "contract" with the government to provide health
care without co-payment.
is well settled that veterans have no contractual or vested right to
an initial receipt of VA benefits. VA benefits involve no agreement
of the parties and "may be redistributed or withdrawn at any time
in the discretion of Congress." Ziviak v. United States, 411 F.
Supp. 416, 422 ( D. Mass. 1976) (quoting Lynch v. United States, 292
U.S. 571, 577 (1934)), aff'd, 429 U.S. 801 (1976).
Appellant also asserts that the statutory classification of veterans
by their income, and the requirement of co-payment under 38 U.S.C. 1722,
violate the due process clause of the Fifth Amendment. While it is true
that the creation of invidiously discriminatory statutory classifications
in the attempt to conserve government resources cannot be countenanced
by the Constitution, "Congress has great latitude in making statutory
classifications in social and economic legislation," and "[a]
statutory discrimination will not be set aside as violative of equal
protection or due process if any state of facts reasonably may be conceived
to justify it." Ziviak, 411 F. Supp. at 425 (quoting United States
v. Weatherford, 471 F.2d 47, 51 (7th Cir. 1972)).
Although here there is a disparity between treatment of veterans whose
income and assets are below the established level and those who exceed
that level, that disparity has a rational relationship to providing,
from limited funds, benefits to needy veterans. The Court finds that
the statute requiring co-payment from veterans who exceed a determined
income or available wealth does not violate the due process clause.
September 15, 1992, BVA decision is AFFIRMED.
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