Citation Nr: 0811741	
Decision Date: 04/09/08    Archive Date: 04/23/08

DOCKET NO.  07-08 508	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Medical Center (VAMC) in 
Gainesville, Florida



THE ISSUE

Eligibility for enrollment in the VA healthcare system.



WITNESS AT HEARING ON APPEAL

The veteran 



ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel




INTRODUCTION

The veteran served on active duty from September 1950 to July 
1954.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a decision of the Gainesville, Florida VAMC.  

In August 2007, the veteran testified before the undersigned 
Veterans Law Judge sitting at the St. Petersburg, Florida 
Regional Office (RO).  A transcript of that hearing is of 
record.


FINDINGS OF FACT

1.  The veteran has been assigned VA health care priority 
category 8; he is not shown to have a service-connected 
disability or other special eligibility attribute, to include 
"low income" status, which would warrant placement in a 
priority category above category 8.

2.  The veteran's completed application for enrollment in the 
VA health care system was received after January 17, 2003.


CONCLUSION OF LAW

The veteran has not met the basic eligibility requirements 
for enrollment in the VA healthcare system.  38 C.F.R. § 
17.36 (2007).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2007).  In this case, because 
the law, and not the evidence, is dispositive of the appeal, 
the VCAA is not applicable.  Mason v. Principi, 16 Vet. App. 
129 (2002).


Factual Background and Analysis

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).  The Secretary determines which categories 
of veterans are eligible to be enrolled, based upon 
enumerated priorities, with veterans who do not have any 
service-connected disabilities assigned lower priority.  38 
C.F.R. § 17.36(b).  Nonservice-connected veterans are given 
the lowest priority, category 8, unless they qualify for 
"low income" status, receive increased pension for being 
permanently housebound or in need of regular aid and 
attendance, are otherwise found to be catastrophically 
disabled, are determined to be unable to defray the costs of 
necessary care under 38 U.S.C.A. § 1722(a), are a veteran of 
the Mexican border period or of World War I, or are a former 
prisoner of war (POW).  Id.  A veteran who wishes to be 
enrolled must apply by submitting a completed VA application 
for health benefits to a VA medical facility.  38 C.F.R. § 
17.36(d).

Beginning January 17, 2003, VA enrolled all priority 
categories of veterans except those in priority category 8 
who were not in an enrolled status on that date.  38 C.F.R. § 
17.36(c); see also 68 Fed. Reg. 2,670-73 (Jan. 17, 2003) 
(interim rule), 70 Fed. Reg. 27476 (May 16, 2005) (adopting 
the January 17, 2003 interim rule as a final rule without 
change).

The pertinent facts in this case are not in dispute.  The 
veteran filed his Application for Health Benefits in May 
2006.  He did not have a service-connected disability and was 
not receiving VA pension benefits.  He indicated that he was 
retired and received benefits from Social Security 
Administration (SSA).  He declined to give any specific 
income information.

Based upon his nonservice-connected status, the lack of low 
income status, and the non-applicability of any special 
eligibility categories mentioned above, the veteran was 
assigned priority category 8.  His application for enrollment 
in the VA healthcare system was denied on the basis of the 
category 8 placement and the filing of his enrollment 
application after January 17, 2003.  In his November 2006 
notice of disagreement, the veteran indicated that he did not 
understand why some category 8 veterans were deemed eligible 
for enrollment in the VA healthcare system and others were 
not.  

At the August 2007 Travel Board hearing the veteran testified 
that essentially he has been discriminated against since some 
veterans in category 8 had been denied medical coverage while 
others had not.  He contends that all category 8 veterans 
should be denied and the funds used for currently returning 
veterans.  He testified that his financial situation had not 
changed during the pending appeal and he had not applied for 
benefits.  He has not submitted any additional information 
regarding his net worth.

The veteran's honorable service is recognized and 
appreciated.  The Board, however, is bound by the statutes 
and regulations governing entitlement to VA benefits and the 
instructions of the Secretary.  38 U.S.C.A. § 7104(c).  Given 
that the veteran is in category 8 and his application in this 
matter was received subsequent to January 17, 2003, he is 
ineligible for enrollment under the applicable regulation.  
The applicable criteria are dispositive; therefore, 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).




ORDER

Eligibility for enrollment in the VA healthcare system is 
denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs