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