Citation Nr: 1536700 Decision Date: 08/27/15 Archive Date: 09/04/15 DOCKET NO. 12-16 539A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in the Bronx, New York THE ISSUE Entitlement to a higher level of priority for VA medical care benefits. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 decision by the Department of Veterans Affairs (VA) Medical Center in the Bronx, New York. FINDINGS OF FACT 1. In January 2012, the Veteran filed an application for enrollment in the VA healthcare system; an earlier record of enrollment was not located. 2. The Veteran does not have a service-connected disability or special eligibility attributes that qualify him for an improved group enrollment, and his income exceeds the geographic means test income thresholds. CONCLUSION OF LAW The requirements for a priority higher than Priority Group 8 for the purpose of basic eligibility for enrollment in the VA healthcare system have not been met. 38 U.S.C.A. §§ 1705, 1721 (West 2014); 38 C.F.R. § 17.36 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is entitled to a level of priority higher than Priority Group 8 for the purpose of basic eligibility for enrollment in the VA healthcare system. Generally, a veteran must be enrolled in the VA healthcare system as a condition to receiving medical benefits. 38 C.F.R. § 17.36(a) (2015). The Secretary determines which categories of veterans are eligible to be enrolled, based upon enumerated priorities, known as priority categories 1 through 8. 38 C.F.R. § 17.36(b). Veterans who do not have any service-connected disabilities and do not meet the necessary income thresholds are assigned the lowest priority, or Priority Group 8. Id. VA has limited enrollment because, after the implementation of an enrollment requirement in 1998, all veterans seeking VA care were permitted to enroll. Subsequently, VA experienced tremendous growth in the number of veterans seeking VA health care benefits. VA was thus unable to provide all enrolled veterans with appointments within a reasonable time. Instead, many VA facilities began to place new enrollees on waiting lists or scheduled their appointments so far in the future that the services became untimely. Due to this fact, VA decided to continue treatment for all veterans currently enrolled in any category and to initiate treatment for all new enrollees in priority categories 1 through 7. To protect the quality and improve the timeliness of care provided to veterans in higher enrollment priority categories, however, VA decided to suspend the enrollment of additional veterans in the lowest statutory enrollment category (priority category 8), effective January 17, 2003. 68 Fed. Reg. 2670, 73 (January 17, 2003) (codified at 38 C.F.R. § 17.36). Nevertheless, certain Priority Group 8 veterans are eligible to be enrolled in VA healthcare. Pertinent to the Veteran's case, nonservice-connected veterans who were in an enrolled status on January 17, 2003 and nonservice-connected veterans whose income is not greater than ten percent more than the income that would permit their enrollment in priority category 5 or priority category 7 are eligible to be enrolled. 38 C.F.R. § 17.36(b)(8)(iii), (iv). In his January 2012 enrollment application (completed on VA Form 10-10EZR, Health Benefits Renewal Form), the Veteran indicated he was covered by health insurance through his spouse, and he reported gross annual income from his full-time employment as $76,500 for the previous calendar year (2011). In addition, he reported $25,000 of other income, approximately $5,000 of other income for his spouse, and $2,500 cash in bank accounts. The sum of non-reimbursed medical expenses and college or vocational educational expenses for calendar year 2011 was $7,000. The Veteran's enrollment application for the Bronx VA Hospital was forwarded to a VA medical records technician for review. The field "most recent location of care" did not identify a VA facility. In a January 2012 decision, the Bronx VA Medical Center (VAMC) explained that the Veteran was not currently eligible for enrollment in VA healthcare because VA records indicated that he applied for enrollment after January 17, 2003 and he had been assigned to Priority Group 8 because he did not have a compensable service-connected disability and other qualifying eligibility attributes for placement in a higher Priority Group, and because his income exceeded VA's means test threshold of $35,284 for a veteran with a single dependent and the "low income" threshold for public housing benefits set by the U.S. Department of Housing and Urban Development (HUD) for his geographical location, which was under $21,000 in 2011. In his March 2012 notice of disagreement (NOD), the Veteran reported "receiving medical care (hospitalization) at the former St. Albans Naval Hospital in 1972 due to a service-connected illness (prior to the facility being turned over to the Veterans Administration)." He also reported receiving medical care at the Kingsbridge VA facility (the Bronx VAMC) from approximately 1976 to 1979, but not using VA medical care once he joined the New York City Fire Department in 1979, except for occasional physicals. He reported that he returned to the VAMC in 1998 to "fill out the required 'new' ID card," which he did not receive. He stated that he retired from the Fire Department in 2000 and moved to Puerto Rico to begin other employment. He indicated that he requested his VA medical ID card in December 2011 and was advised to submit an online application. Finally, he expressed his belief that he should be "grand-fathered" in as a VA healthcare enrollee because he "had already been receiving medical care at the Kingsbridge Veterans Hospital since the mid-70s" and because he applied in person for a "'new mandatory' identification card" around 1998. Upon searching for archived VA records, VA education records were located. The records reflect that the Veteran's initial application for education assistance was received in September 1975. On his application (VA Form 22-1990), he checked "none" regarding "[VA] benefits previously applied for." In May 1980, he requested a change of program to enroll in firefighter apprenticeship training. In a February 1982 application for educational benefits, he checked the box for education or training based on Vietnam era service in identifying VA benefits previously applied for. All other boxes, including disability compensation or pension, hospitalization or medical care, and dental or outpatient treatment, he left blank. In his June 2012 substantive appeal, the Veteran reiterated his contention that he had been enrolled in and been receiving VA medical care since the 1970s, adding that he "stopped going to the VA Kingsbridge Facility because I relocated from [New York] to [Puerto Rico] (job reasons) and was stationed 150 miles from the nearest VA Medical Center." In correspondence received in March 2015, the Veteran again asserted that he was an outpatient at the Bronx VAMC "circa 1976 to 1981" and was "also receiving VA education" benefits and apprenticeship payments. He could not "understand how those medical records and later the application for ID records could disappear from files at both locations (St. Albans Naval Hospital and The Kingsbridge Veterans Hospital) where I was treated." Having considered the Veteran's contentions and the evidence of record, the Board finds that the Veteran is not entitled to a higher level of priority for VA medical care benefits. The Veteran's remote statements regarding receipt of VA medical care from 1976 until 1979 or 1981 are contradicted by his prior, contemporaneous statement in his 1982 application for VA educational benefits, in which he denied having previously applied for VA medical care or any VA benefits other than education benefits. Similarly, although he reports applying for a VA medical care identification card around 1998, he also stated that he never received such a card, had not received any VA medical care since that time, and had lived 150 miles from the nearest VA facility since moving to Puerto Rico in 2000. Based on these facts, the Board finds that the Veteran was not in an enrolled status on January 17, 2003. In addition, the Veteran does not have any service-connected disabilities and his income exceeds the necessary income thresholds for purposes of enrollment in the VA healthcare system. He does not dispute these facts. The Board also acknowledges the Veteran's contentions that he should be eligible to received VA medical care benefits based on his military service. See NOD (Mar. 12, 2012). The Board, however, is bound by the statutes and regulations governing entitlement to VA benefits, the instructions of the Secretary, and the precedent opinions of VA's chief legal officer. 38 U.S.C.A. § 7104(c) (West 2015). In the instant case, the law is dispositive and the Veteran's claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board regrets that limited resources restrict VA's capacity to provide medical care to all Veterans with both other health insurance and higher incomes (for VA purposes); however, these regulations were instituted to protect the quality of care for other enrollees who have lower incomes, special medical needs, or disabilities incurred during military service. ORDER Entitlement to a higher level of priority for VA medical care benefits is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs