Beverly v. NicholsonBeverly v. Nicholson
- Reporters:
- , ,
- Before:
- Greene, Lance, Davis
The appellant, Daniel W. Beverly, seeks review of a December 9, 2003, Board of Veterans’ Appeals (Board or BVA) decision that denied reimbursement for costs incurred at a community residential care (CRC) facility, beginning in March 2001. Record (R.) at 1-7. This appeal is timely, and the Court has jurisdiction over the case pursuant to
I. FACTS
The appellant served on active duty in the U.S. Army from March 1967 to January 1969. R. at 11. In a March 1969 decision, the Los Angeles, California, VA regional office (RO) granted him service connection for schizophrenic reaction and assigned a 10% disability rating. R. at 93. In November 1973, the RO increased the appellant’s disability rating to 100% for his service-connected schizophrenia. R. at 95-96. In a January 16, 1998, RO decision, VA determined that he was not competent to handle the disbursement of funds and denied an inferred claim for SMC under
In March 1999, Guy C. Lamunyon, R.N., the appellant’s case manager in VA’s Intensive Psychiatric Community Care (IPCC) Program, sent a letter to the Superior Court of California that noted that the appellant was a participant in the IPCC Program. R. at 105. Mr. Lamunyon indicated that the IPCC Program would continue to follow the appellant with weekly
In an April 21, 2003, letter, Dr. Stephen Marder, the IPCC medical director, verified that the appellant had been referred to the Salvation Army Haven/Exodus Lodge (Exodus Lodge), a licensed facility for the mentally disordered, on March 5, 2001, and again on August 3, 2001, as a result of chronic medication noncompliance. R. at 165. A March 6, 2001, psychiatric progress note also confirms that the appellant had been discharged to Exodus Lodge, a CRC facility. Supplemental (Suppl.) R. at 1. In a July 19, 2001, IPCC progress note, Mr. Lamunyon, reported the following:
Escorted vet[eran] to Court 95 and back to unit. Vet[eran] withdrew his objections to the renewal of the ... conservatorship with the agreement that he can have [his] drivers license restored after six months if stable and medication-compliant living in a board and carе. Vet[eran] understands he is to remain an additional six months in a board and care prior to returning to the community. Vet[eran] also understands that medication noncompliance resulting in readmission within this time frame will result in locked placement. Vet[eran’]s wife/conservator is in agreement with these terms.
R. at 171. An August 3, 2001, progress note recorded:
[C]lient [was] escorted to [E]xodus [Lodge,] paperwork and med[ication]s given to staff. [C]lient expressed belief that he did not “need to be in a board and care” but would agree to stay there for at least 6 months and take medications for “5 years” because he promised Guy Lamunyon and Dr. Marder that he would.
Suppl. R. at 3.
On December 15, 2002, the appellant appeared at the Los Angeles, California, VA office and requested reimbursement for his rent at the CRC facility. R. at 112. In a December 16, 2002, letter, VA informed him that his request for reimbursement was denied on the basis that VA regulations require that the cost of care be financed by the veteran’s own resources. R. at 107. In January 2003, he filed a Notice of Disagreement (NOD) and VA issued a Statement of the Case. R. at 137-39, 109-13. The appellant filed a timely Substantive Appeal requesting retroactive payment for his rent at the CRC facility beginning in March 2001. R. at 115.
On May 12, 2003, the appellant was provided a BVA hearing where he contended that VA should reimburse him for the costs of the CRC facility because he is 100% service connected for schizоphrenia, and the costs incurred were a direct result of his service-connected disability. R. at 175-78. He also maintained that he was referred to CRC by a VA doctor who “coerced” him into going to the CRC facility. R. at 175-78. He stated that as a result of his mental condition, he was given “two ultimatums”: (1) A locked facility, or (2) a CRC facility. R. at 178. Last, because he was required to stay at the CRC facility to regulate his medications, he contended that this should be considered “medical treatment” subject to reimbursement under
At the May 2003 hearing, the Board Chairman informed the appellant that there “may be a deficiency in the record” with regard to VA’s responsibilities under the Veterans Claims Assistance Act (VCAA) of 2000, but that it is a deficiency that may be waived. R. at 179. The Chairman further noted that “if it becomes necessary to cure that [deficiency], that would ... have to be done.” Id. The appellant declined to waive his right to further VCAA development. R. at 180.
In his July and September 2003 correspоndence, the appellant requested that Dr. Marder’s report “be incorporated into the evidentiary record and appropriate actions be taken.” R. at 190, 192. Subsequently, on October 17, 2003, the appellant filed a formal motion to advance his case on the Board’s docket. R. at 199. Although it is unclear from the record what caused the delay, the record reflects that the Board did not receive Dr. Marder’s examination report until October 17, 2003, the same date as the appellant’s formal motion to advance his case on the Board’s docket. R. at 197, 199. His motion was granted on November 10, 2003. R. at 201.
On December 9, 2003, the Board issued the decision on appeal. R. at 1-7. As a preliminary matter, the Board discussed the enactment of the VCAA, Pub.L. No. 106-475, 114 Stat. 2096, as well as the appellant’s refusal to waive any VCAA-compliance deficiencies that may have been found. R. at 3-4. The Board concluded that because the law, and not the evidence, was dispositive of the issues on appeal, the VCAA notice requirements were not applicable and any deficiencies in notice were therefore moot and nonprejudicial to the appellant. Id. As to the merits of the appellant’s claim, the Board discussed the provisions of law and pertinent regulations that permit the Secretary to аssist a veteran by referring the veteran for placement in, and aiding in obtaining placement in, an approved CRC facility under certain circumstances. R. at 4-6 (citing
In denying the appellant’s claim, the Board also addressed his contention that the CRC costs should be reimbursed under
II. ANALYSIS
A. Parties’ Contentions
On appeal, the appellant contends that VA failed to provide adequate VCAA no
The appellant further contends that the Board failed to consider all pertinent regulations because, in denying his claim for reimbursement for the CRC costs, the Board failed to consider an “alternative avenue of achieving the same result,” that is, to consider offsetting board and care costs by awarding SMC for aid and attendance. Br. at 13; see
The Secretary urges the Court to affirm the Board’s decision. The Secretary maintains that because VA is barred by statute,
In response to the appellant’s argument that the Board should have considered a clаim for SMC, the Secretary asserts that a claim for SMC was denied in 1998, and the appellant has failed to reasonably raise before the Board a claim to reopen. Sec’y Br. at 9. He urges the Court to hold that there is no jurisdiction-conferring NOD or Substantive Appeal with respect to the appellant’s alleged SMC claim, and therefore, the Court lacks jurisdiction over the matter. Id.
Section 1730 of title 38, U.S.Code, entitled “Community residential care,” authorizes the Secretary to assist a veteran, by referring such veteran for placement in, and by aiding in obtaining placement in, a CRC facility. Congress directly spoke to VA’s ability to incur the costs for any care or service provided to a veteran who is referred for placement in a CRC facility. Subsection (b)(3) states the following: “Payment of the charges of a community residential-care facility for any care or service provided to a veteran whom the Secretary has referred to that facility under this section is not the responsibility of the United States or of the Department.”
Pursuant to his authority, the Secretary promulgated
Section 1728 of title 38, U.S.Code, entitled “Reimbursement of certain medical expenses,” permits the Secretary to reimburse veterans entitled to hospital care or medical services under chapter 17 for the reasonable value of such care or service under certain circumstances. Section 1728 provides in pertinent part:
(a) The Secretary may, under such regulations as the Secretary shall prescribe, reimburse veterans entitled to hospital care or medical services under this chapter for the reasonable value of such care or services ... for which the veterans have made payment, from sources other than the Department, where—
(1) such care or servicеs were rendered in a medical emergency of such nature that delay would have been hazardous to life or health;
(2) such care or services were rendered to a veteran in need thereof [ ] for an adjudicated service-connected disability, ...; and
(3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.
Section 17.120 of title 38, Code of Federal Regulations, entitled “Payment or reimbursement of the expenses of hospital care and other medical services not previously authorized,” implements seсtion 1728. It provides, in pertinent part:
To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by the Department of Veterans Affairs, or any medical services not previously authorized including transportation ... may be made on the basis of a claim
timely filed, under the following circumstances: (a) For veterans with service connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services:
(1) For an adjudicated service-connected disability;
.... and
(b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and
(c) When Federal facilities are unavailable. VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.
C. Entitlement to Reimbursement for CRC
In the instant case, the Board denied the appellant’s claim for reimbursement for the costs of CRC because it found the language of section 1730(b)(3) unequivocal. R. at 7. The Board concluded that “although the Secretary may refer a veteran to a CRC facility, neither the United States government nor the Department of Veterans Affairs is responsible for the cost of CRC provided to a veteran.” R. at 6; see
The Court reviews questions of statutory interpretation de novo. See
Congress unambiguously addressed VA’s responsibility for the payment of CRC costs in
To the extent that appellant seeks reimbursement for CRC costs under
On the other hand, Congress specifically defined the term “community residential care” as “a facility that provides room and board and such limited personal care for and supervision of residents as the Secretary determines, in accordance with regulations prescribed under this section, are necessary for the health, safety, and welfare of residents.”
Moreover, section 1730(b)(3) specifically relieves VA of the responsibility to pay the costs of CRC “for any care or service provided to a veteran whom the Secretary has referred” to a CRC facility. See
Although the Board erred by concluding that the appellant was not entitled to reimbursement under
We have also considered the appellant’s argument for remand on the basis that the Board failed to consider
D. VCAA Notice Compliance
The Secretary is required to inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if any. See
Neither party contends that the appellant was provided with VCAA-compliant notice. See Br. at 7-12; Sec’y Br. at 7-8. Rather, the disposition of this matter turns on whether the failure to provide adequate VCAA notice was prejudicial to the appellant. See
In light of our holding that section 1730(b)(3) unequivocally relieves VA of the responsibility to pay for any care or service provided to the appellant at the CRC facility, we further hold that the failure to provide VCAA-compliant notice was nonprejudicial error, because the law, and not the evidence, is dispositive of the appellant’s claim. See Short Bear, Mayfield, Valiao, Mason, and Sabonis, all supra. Accordingly, the Court also finds unpersuasive the appеllant’s emphasis on the Board Chairman’s statement at the May 2003 hearing that there may be VCAA deficiencies and the appellant’s subsequent refusal to waive any such deficiencies; any reliance or expectation by the appellant that he may receive VCAA-compliant notice is not prejudicial because there could have been no further development that could have lead to an award of benefits. See Short Bear, Mayfield, Valiao, Mason, and Sabonis, all supra.
E. Special Monthly Compensation
The appellant also argues that a remand is necessary because the Board failed to consider all relevant regulatory provisions when it failed to consider whether he raised a claim for SMC for aid and attendance. Br. at 13-16. The Secretary argues that a claim for SMC was not raised in a manner that would confer jurisdiction on this Court to address the issue. Sec’y Br. at 9. The Court always has jurisdiction to assess its own jurisdiction, and therefore, we will first address the question of our jurisdiction. See Smith v. Brown, 10 Vet.App. 330, 332 (1997) (“‘[A]ny statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits ....’” (quoting Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996) (emphasis in Barnett))).
Section 7252 of title 38, U.S.Code, provides in relevant part that the Court “shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.”
However, even when there is no Board decision on a claim, we have jurisdiction over that claim if there is a reference to it in an NOD, or if it was reasonably raised to the Board. See Ledford, supra. Thus, in addressing the Board’s obligation to adjudicate claims reasonably raised to it, we have held that
the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant’s substantive appeal, including all documents and oral testimony in the record prior to thе Board’s decision. See Solomon v. Brown, 6 Vet.App. 396, 402 (1994); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). “Where such review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular
benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the [VARO] for development and adjudication of the issue; however, the Board may not simply ignore an issue so raised.” Suttmann v. Brown, 5 Vet.App. 127, 132 (1993). On the other hand, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Talbert v. Brown, 7 Vet.App. 352, 356-57 (1995) (holding that the BVA is not required to do a “prognostication” but to review issues reasonably raised by the substantive appeal).
Brannon v. West, 12 Vet.App. 32, 34 (1998) (emphasis added). VA is furthеr obligated, with respect to all pro se pleadings, to give a sympathetic reading to the veteran’s filings. Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed.Cir.2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004)). This requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001). Hence, the existence of our jurisdiction turns on whether the claim was reasonably raised to the Board. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the question of whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004) (recognizing that the interpretation of veteran’s filings was a factual inquiry outside Federal Circuit’s jurisdiction).
In this case, the reсord reveals that while the appellant’s appeal was pending at the Board, on October 17, 2003, the Board received Dr. Marder’s examination report, submitted on VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. R. at 195-97. Dr. Marder certified that the appellant required the daily personal health care services of a skilled provider without which he would require hospital, nursing home, or other institutionalized care. R. at 196. This report was submitted as an attachment to the appellant’s motion for expedited consideration by the Board. R. at 190, 192, 199. However, the appellant had also requested that the report be incorporated into the evidentiary record. R. at 190. His motion for expedited proceedings was granted in November 2003 and the Board issued its decision one month later. R. at 201, 1-7. In its decision, the Board did not discuss this evidence, which had been received two months prior to its decision, nor did it provide any discussion as to whether Dr. Marder’s examination report constituted an informal claim to reopen a claim for SMC for aid and attendance. See
Based on the facts of this case, we find that there is an evidentiary factual basis to remand this matter to the Board. The resolution of this jurisdictional issue involves specific factual determinations regarding whether the appellant’s submissions and arguments reasonably raised an informal claim to reopen a claim for SMC for aid and attendance; these findings are best for the Board to make in the first instance, and therefore, we conclude that it is premature for the Court to address this matter. See Hensley v. West, 212 F.3d 1255, 1263-64 (Fed.Cir.2000) (court of appeals may remand if it determines that lower tribunal failed to make finding of fact essential to decision); Wanless v. Principi, 18 Vet.App. 337, 337 (2004) (per curiam order); see also
If, on remand, the Board concludes that there is no reasonably raised claim over which it has jurisdiction, the appellant is free to appeal that decision. See Mintz v. Brown, 6 Vet.App. 277, 281 (1994) (“[T]he Secretary’s refusal to exercise jurisdiction ... clearly presents a case or controversy within the purview of the Court’s jurisdiction.”). On remand, the appellant is free to submit additional evidence and argument and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties’ briefs, the Board’s December 9, 2003, decision that denied the appellant’s claim for reimbursement for costs incurred at a CRC facility is AFFIRMED; and the matter of whether an informal claim to reopen a previously denied claim for SMC for aid and attendance had been presented is REMANDED for further proceedings consistent with this opinion.