Citation Nr: 1320732 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 08-26 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Columbia, Missouri THE ISSUE Entitlement to a higher level of priority for VA medical care benefits. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from May 1958 to April 1960. This case comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a July 2008 decision rendered by the Department of Veterans Affairs (VA) Medical Center in Columbia, Missouri. Following the receipt of the Statement of the Case from the VAMC, the appellant submitted a VA Form 9, Appeal to Board of Veterans' Appeals, dated September 2008. On that form, the appellant indicated that he wished to provide testimony before the Board at the Regional Office in conjunction with his claim for benefits. Subsequent to that submission, the appellant notified VA that he would not be able to attend the hearing and instead asked that the processing of his claim proceed. As the appellant has withdrawn his request for a hearing, the Board will continue with the processing of the appellant's appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In November 2005, the appellant filed an application for enrollment in the VA healthcare system. 2. The appellant does not have a service-connected disability and his income exceeds the geographic means test income thresholds. CONCLUSION OF LAW The requirements for a priority higher than Priority Group 8(g) 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 2002 & Supp. 2012); 38 C.F.R. § 17.36 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The essential facts of this case are not in dispute. Rather, the case rests on the interpretation and application of the relevant law. The Veterans Claims Assistance Act of 2000 (VCAA) does not affect matters on appeal when the issue is limited to statutory interpretation. See Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). In addition, there is no indication that any additional notice or development would aid the appellant in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Under these circumstances, there is no further duty to notify or assist the appellant in the development of his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, the Board finds that the case is ready for appellate review. II. Entitlement to a Higher Priority Group The appellant asserts that he is entitled to a level of priority higher than Priority Group 8(g) for the purpose of basic eligibility for enrollment in the VA healthcare system. As a condition for receiving medical benefits, a veteran must generally be enrolled in the VA healthcare system. 38 U.S.C.A. § 1705 (West 2002 & Supp. 2012); 38 C.F.R. § 17.36(a) (2012). A veteran may apply to be enrolled in the VA healthcare 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. 38 C.F.R. § 17.36(d). The Secretary determines which categories of veterans are eligible to be enrolled, based upon enumerated priorities [priority categories 1-8]. 38 C.F.R. § 17.36(b). For instance, veterans who do not have any service-connected disabilities and do not meet the necessary income thresholds are assigned the lowest priority, or category 8. VA has limited enrollment to all priority categories of veterans except those veterans in priority category 8 who were not in an enrolled status as January 17, 2003. VA has limited enrollment because, after the implementation of an enrollment requirement in 1998, all veterans seeking VA care were permitted to enroll. However, 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). Here, in November 2005, the appellant submitted a VA Form 10-10EZ. Therein, he reported that he had been retired since the beginning of July 2005. He further indicated that he was married and did not have additional dependents. He reported that his spouse worked part time. He reported income of $18,514.45 (US dollars) for the previous calendar year (2004), and other additional income in the amount of $17,522.20 (US dollars). He stated that his wife earned $16,879.98 (US dollars) and that had additional income in the amount of $16,223.20 (US dollars). He stated that he had cash in bank accounts of $95,500.00 (US dollars) and that his wife had $125,500.00 (US dollars). He reported that he was covered by a health insurance plan. The pertinent facts of this case do not appear to be in dispute. While the appellant had honorable service, he did not serve in a hostile area to include Korea, Vietnam, or the Persian Gulf theatre-of-operations. The appellant applied for access for VA health care in November 2005. Based on his status as a non-service-connected Veteran and the financial data provided, he was assigned to Priority Group 8. Thus, his claim was denied because he was a nonservice-connected veteran whose annual income exceeded the VA's means test threshold. See 72 Fed. Reg. 21, 4772-4773 (February 1, 2007)(setting forth the means test and geographic-based income thresholds). In order to be placed in a higher priority group, service connection must be in effect for at least one noncompensable disability; however, the appellant is not service-connected for any disability. The Board acknowledges the appellant's contentions that he had honorable military service and he may have friends that receive benefits. Such facts are profoundly appreciated and by no means questioned. 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 the VA's chief legal officer. 38 U.S.C.A. § 7104(c) (West 2002). In the instant case, the law is dispositive and the appellant's claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, as the appellant is assigned to Priority Group 8, earns incomes above the geographic means test, and is not service-connected for any disability, he is ineligible to enroll for VA health care benefits. The Board regrets that limited resources restrict VA's capacity to provide care to all veterans; however, the regulations were amended to protect the quality of care for other enrollees who have lower incomes, special medical needs, or disabilities incurred during military service. ORDER As the criteria for eligibility to enroll for VA health care benefits have not been met, the appeal is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs