Citation Nr: 0814406 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-07 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in San Diego, California THE ISSUE Eligibility to enroll for Department of Veterans Affairs health care benefits based on the veteran's November 2005 application. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from November 1942 to January 1946. This case initially came before the Board of Veterans' Appeals (Board) on appeal from the San Diego, California, Department of Veterans Affairs (VA) Medical Center (MC). In April 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The veteran's case has been advanced on the docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran's application for enrollment in the VA health care system was received in November 2005, and the veteran was assigned to Priority Group 8 at that time. 2. At this time, the veteran does not have a service- connected disability or special eligibility attributes that qualify him for an improved group enrollment. He has filed a claim for service connection for hearing loss. CONCLUSION OF LAW The criteria for enrollment in and access to VA medical care benefits have not been met. 38 U.S.C.A. §§ 1705, 1706 (West 2002); 38 C.F.R. § 17.36 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, the Board must examine VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA directs that VA shall apprise a claimant of the evidence necessary to substantiate the claim for benefits and make reasonable efforts to assist the claimant in obtaining evidence unless there is no reasonable possibility that such assistance will aid in substantiating the claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). The VCAA is not applicable to cases in which the law, and not the factual evidence, is dispositive. See Manning v. Principi, 16 Vet. App. 534, 542- 43 (2002). As this case concerns a legal determination of eligibility to VA medical care under VA regulations, the provisions of the VCAA are not applicable. The veteran contends that he should be able to receive VA health care because his current hearing loss is attributable to service. At the April 2008 hearing before the undersigned, the veteran testified that he served from November 1942 to January 1946, during which time he was exposed to loud noises. He stated that the hearing protection used back then was not very good. The veteran stated he felt his hearing loss was attributable to service, which was why he filed for VA health care in November 2005. He admitted he had not filed a formal claim for service connection for hearing loss at the time he filed his application for enrollment. Generally, a veteran must be enrolled in the VA healthcare system as a condition for receiving medical benefits. See 38 C.F.R. § 17.36(a) (2007). Veterans may apply to be enrolled in the VA health care system at any time; however, a veteran who wishes to be enrolled must apply by submitting a completed VA application for health benefits to a VA medical facility. Id. at (d). Veterans are eligible for enrollment based on enumerated priorities, and veterans who do not have service-connected disabilities and are above a certain income threshold are assigned the lowest priority, which is Priority Group 8. Id. at (b). In January 2003, VA suspended new enrollment of veterans assigned to Priority Group 8 from the VA health care system if they were not enrolled on January 17, 2003. Id. at (c)(2); see also 38 U.S.C.A. § 1705(a) (stating that, in managing medical services, VA shall design programs in a manner as to promote cost-effective delivery of health care services); 68 Fed. Reg. 2670-673 (Jan. 17, 2003) (regarding the Secretary's decision to restrict enrollment to veterans in Priority Group 8 not already enrolled as of January 17, 2003 in light of VA's limited resources). According to administrative documents on file, the veteran applied for health care benefits in November 2005. VA assigned the veteran to Priority Group 8g because, at that time, he was not service connected for any disability, and because he had no other special eligibility attributes that might qualify him for an improved priority group. The veteran contends that his assignment to Priority Group 8 was incorrect and that he should be assigned a different Priority Group because his hearing loss is service connected. The veteran does not contest the fact that he has not been awarded service connection for hearing loss by VA. At this time, the evidence does not show that the veteran is service connected for hearing loss. Therefore, the veteran has not shown that he falls under a higher Priority Group. As the evidence currently stands, he has correctly been assigned to Priority Group 8, and he submitted his application for enrollment after January 17, 2003 (here, November 2005). Therefore, he is ineligible for VA health care benefits. The current decision does not prohibit VA from awarding service connection for hearing loss (or any disability) and allowing the veteran to re-file an application for enrollment in the VA health care system. ORDER Eligibility for enrollment in the VA health care system is denied. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs