Citation Nr: 1702322 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 12-30 727A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Omaha, Nebraska THE ISSUE Entitlement to beneficiary travel payment for travel expenses incurred for February 25, 2010 and March 11, 2010 VA examination dates. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Navy from August 1959 to July 1963, and from October 1963 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision by the Nebraska-Western Iowa Health Care System. FINDING OF FACT The claim for beneficiary travel benefits was not received within 30 days after completion of the travel to VA examinations on February 25, 2010 and March 11, 2010. CONCLUSION OF LAW As a matter of law, the criteria for entitlement to payment of beneficiary travel expenses for travel to the February 25, 2010 and March 11, 2010 VA examinations are not met. 38 U.S.C.A. §§ 111 (West 2014); 38 C.F.R. §§ 70.2, 70.10, 70.20 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The United States Court of Appeals for Veterans Claims (Court or CAVC) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. In this case, the relevant facts necessary for the determination to be made are not in dispute (i.e., whether the Veteran filed for the claimed travel payments within 30 days of completion of any VA treatment). Also, whether the Veteran is entitled to beneficiary travel payment reimbursement is wholly a matter of interpretation of the pertinent statute and regulations. See Sabonis v. Brown, 6 Vet. App. 426 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive, the Veterans Claims Assistance Act of 2000 (VCAA) does not apply. Beneficary Travel Benefits Legal Criteria Generally, VA beneficiary travel is a payment for travel expenses incurred in the United States to help Veterans and other persons obtain care or services from the Veterans Health Administration. 38 U.S.C.A. § 111 (West 2014); 38 C.F.R. § 70.10(a) (2016). Persons eligible for beneficiary travel payments include Veterans who travel to or from a VA facility or VA-authorized health care facility in connection for the following reasons or under the following circumstances: 1) treatment for a service-connected disability, regardless of the disability rating; or, 2) treatment for any disability, provided that the veteran has a service-connected disability rated at 30 percent or more; or, 3) a scheduled compensation and pension examination; or, 4) if the veteran receives pension under 38 U.S.C. § 1521; or, 5) if the veteran's annual income does not exceed the maximum annual rate of pension that the Veteran would receive under 38 U.S.C. § 1521; or, 6) if, under certain circumstances, the veteran is unable to defray the expenses of that travel. 38 U.S.C.A. § 111; 38 C.F.R. § 70.10(a). A claimant must apply for payment of beneficiary travel within 30 calendar days after completing the travel and such travel does not include a special mode of transportation. 38 C.F.R. § 70.20(b). Beneficiary Travel Benefits Analysis The Veteran seeks beneficiary travel payments for his travel to the VA Medical Center (VAMC) in Omaha, Nebraska, for VA examinations performed on February 25, 2010 and March 11, 2010. He contends that he should be entitled to beneficiary travel payments for past travel to the February 2010 and March 2010 VA examinations on the basis that he did not learn of travel pay benefits until after attending the VA examination conducted on May 27, 2010 and stopping by the Travel Office in the building. After review of the record, the Board finds that in this case the criteria for payment of beneficiary travel benefits are not met. Because the Veteran presented to the Omaha VAMC on February 25, 2010 and March 11, 2010 for scheduled VA compensation and pension examinations, the Veteran met the basic eligibility requirement for VA beneficiary travel payments on those dates; however, the Veteran did not apply for beneficiary travel benefits within 30 days of travel completion for either scheduled VA examination. On the April 2013 Notice of Disagreement (NOD), the Veteran acknowledged that he did not file a timely claim for VA beneficiary travel benefits for the February 2010 and March 2010 VA examinations, giving as a reason that he had not been informed that he was eligible for travel payments for travel to the scheduled VA compensation and pension examinations until he stopped by the Travel Office on the day he reported for the VA examination performed on May 27, 2010. The Veteran reports that, when he then asked the Travel Office about payment for past travel to VA examinations, he was told that he could not receive payment for travel expenses if a claim was not filed within 30 days after travel completion. The Board notes that the current record does not include the Veteran's initial claim for benefits or specify the date that the claim for VA beneficiary travel benefits was received, and the Veteran does not contend otherwise. The essential legal fact of date of receipt of claim in this case is not in dispute. The earliest date as to which a claim could have been made is on May 27, 2010, when the Veteran first became aware that he was eligible for travel payments to VA compensation examinations. The April 2013 NOD does not assert that the claim for beneficiary travel benefits for the February 2010 and March 2010 examinations was received before May 27, 2010. The June 28, 2010 the denial of beneficiary travel benefits also reflects that the claim was received more than 30 days after completion of travel to the examinations had occurred. See May 27, 2010 VA diabetes mellitus examination report; June 28, 2010 decision denying beneficiary travel benefits. Thus, the Veteran did not submit a timely claim for VA beneficiary travel benefits. Consistent with these findings, the Veteran has also stated that he was not aware that he was eligible for travel pay at the time of the February 2010 and March 2010 VA examinations because the VA examiners did not inform him that he could be paid for travel to the compensation and pension examinations. Regarding this statement, while it would have been ideal if VA had informed the Veteran in a way that he personally understood at an earlier time of his eligibility for travel payments for travel to VA compensation and pension examinations, either in general or specifically at the time of the February 2010 and March 2010 VA examinations, VA has no such general duty to notify eligible persons of possible entitlements. See Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). The Board is bound by the controlling regulation, 38 C.F.R. § 70.20(b), which indicates that a claimant must apply for payment of beneficiary travel within 30 calendar days after completing that travel, if that travel is not made using a special mode of transportation. There is no indication that the Veteran used a special mode of transportation to get to the medical appointments at the Omaha VAMC. Additionally, the regulation, 38 C.F.R. § 70.20, does not provide for any extension of the 30-day time limit based on lack of knowledge or lack of awareness of benefits. In consideration of the foregoing, the Board finds that the claim for VA beneficiary travel benefits must be denied as a matter of law. Sabonis, 6 Vet. App. at 430. ORDER VA beneficiary travel payment for travel expenses incurred for February 25, 2010 and March 11, 2010 VA examination dates is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs