Citation Nr: 20021803 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-55 344 DATE: March 27, 2020 ORDER VA timely provided the Veteran with his rights to appeal his case to the Board, and the claim otherwise is denied. Electronic Fund Transfer (EFT) of payment or reimbursement of medical expenses being sent to Japan is denied. Payment or reimbursement of beneficiary travel expenses incurred in connection with medical care received in Japan is denied. REMANDED Entitlement to reimbursement of expenses incurred for physical therapy, outpatient office visits, and medications between 2015 and 2017. Entitlement to reimbursement for medical expenses incurred for physical therapy on December 16, 2017 and January 12, 2018. Whether VA requests for additional documents in support of appeals was proper. FINDINGS OF FACT 1. The Veteran had active service from June 1997 to June 2001. 2. To the extent, if any, the Veteran was not timely advised of his appellate rights and procedure for appealing claims to the Board, such was harmless error. 3. Sending payments or reimbursements of medical expenses to beneficiaries in a foreign country via EFT is at the discretion of VA’s Office of Finance, which has determined that Foreign Medical Program (FMP) payments are to be made by paper check. 4. Payment of beneficiary travel expenses incurred in connection with medical care received in Japan is not authorized by law. CONCLUSIONS OF LAW 1. The appeal of the issue of the untimeliness of notice of appellate rights is rendered moot. 38 C.F.R. § 20.1102 (2019). 2. The criteria for EFT of payments or reimbursements made by the FMP have not been met. 31 C.F.R. § 208.4 (2012); 38 C.F.R. § 20.104 (2019). 3. The criteria for payment or reimbursement of beneficiary travel expenses incurred in connection with medical care received in Japan are not met. 38 U.S.C. § 111 (2012); 38 C.F.R. §§ 70.1, 70.4(a)(1), 70.10(a) (2), 70.30(a)(1), (b)(1) (2019) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, the Veteran has multiple claims pending with VA at different levels of the appellate process, including disagreements with the denial of service-connected compensation, dependent education benefits, and vocational rehabilitation benefits. These issues are not before the Board at this time. Issues that have reached the Board for appellate review are on separate Board dockets, and any issues for which a notice of disagreement has been filed will be addressed in a statement of the case by the Agency of Original Jurisdiction (AOJ). The only issues over which the Board has jurisdiction at this time are those pertaining to payment or reimbursement of medical expenses as indicated in the ORDER above. Additionally, to the extent the Veteran seeks a declaratory judgment that 31 U.S.C. § 3330 and 38 U.S.C. § 1724 and their implementing regulations, policies, and programs violate the Fifth, Tenth, Thirteenth, and Fourteenth Amendments, and constitute a bill of attainder, such questions are outside the scope of the Board’s jurisdiction. The Board is bound by the applicable statutes, VA regulations, and precedent opinions of the VA General Counsel, see 38 C.F.R. § 20.101(a), and may not void federal statutes or VA regulations as unconstitutional. If on appeal an appellant for the first time challenges the constitutionality of a relevant statute, the Board cannot afford the desired relief by declaring an act of Congress unconstitutional. See Johnson v. Robison, 415 U.S. 361, 368, 94 S. Ct. 1160, 39 L.Ed.2d 389 (1974) (noting that the Board "follows the principle that '[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies'" (quoting Oestereich v. Selective Service Board, 393 U.S. 233, 242, 89 S. Ct. 414, 21 L.Ed.2d 402(1968) (Harlan, J., concurring)). Thus, the Board does not have authority to address the constitutional arguments. Finally, to the extent the Veteran’s appeal included denial of payments made for nutritional counseling in September 2017, the record reflects that these claims were initially denied but later paid. Therefore, there remain no errors of fact or law for appellate consideration regarding that issue for the Board to adjudicate. Untimely Provision of Appellate Rights The Veteran appears to argue that he was not provided timely notice of his rights to appeal his claims to the Board. Such rights are described on VA Form 4107, which was provided with the October 2018 statement of the case (SOC). He then, in fact, appealed his claims to the Board. Accordingly, to the extent that he was not provided his appellate rights in what he believes to be a timely manner, it was harmless error as he successfully perfected his appeal and pursued it to the Board. Therefore, any allegation that the timing of the notice of the appellate rights was detrimental to the Veteran is rendered moot and the appeal is denied. EFT of Payment or Reimbursement Made to Beneficiary in a Foreign Country The Veteran resides in and receives medical care in Japan, and payment and reimbursement for his medical expenses is issued to him by paper check. He argues that these disbursements should be made via EFT, indicating that paper checks result in inconvenience and hardship due to difficulties negotiating the checks in Japan and fees incurred when cashed. The Agency of Original Jurisdiction (AOJ) argues that 31 U.S.C. § 3330, Payment of Department of Veterans Affairs checks for the benefit of individuals in foreign countries, requires that payments made by paper check because the payment benefits an individual in a foreign country; however, the statute merely defines when a check is deemed to be issued to a foreign country and then states provisions related to when the amount of checks transferred equals $1000 and when the payee dies while the money is with the Treasury. Moreover, EFT is a commonly accepted, and in fact preferred method of payment, including by the Federal government. See Cash Management Improvement Act of 1990, Pub. L No. 101-453 (1990). Nevertheless, there is no strict requirement that all payments be made by EFT, and VA will “disburse and collect funds by EFT when cost-effective, practicable and consistent with current statutory authority,” including 31 C.F.R. § 208.4, which provides waivers of the EFT requirement. See U.S. Dep’t of Veterans Aff., Off. of Fin. Pol’y, Fin. Pol Vols., Vol. VIII, Cash Management, Ch. 2, Disbursements and Collections Requirement, https://www.va.gov/finance/policy/pubs/volumeVIII.asp. VA has determined that foreign disbursements made by VA’s FMP will be made by U.S. Treasury Checks. Thus, VA policy dictates that the reimbursements made to the Veteran for medical expenses be made by paper check. It is outside the Board’s purview to change internal VA financial practice or policy. Therefore, the appeal to have medical reimbursements issued by EFT instead of paper check is denied.   Beneficiary Travel Expenses Incurred in Connection with Medical Care in Japan The controlling statute in this case indicates that under regulations prescribed by the President, the Secretary (i.e. VA) may pay the actual necessary expense of travel of any person to or from a Department facility or other place in connection with vocational rehabilitation, certain counseling required by the Secretary, or for the purpose of examination, treatment, or care. 38 U.S.C. § 111(a). Under the statute, individuals who have basic eligibility for receipt of such payments include "a veteran whose travel is in connection with treatment or care for a service-connected disability." 38 U.S.C. § 111(b)(1)(A). The reference to "regulations prescribed by the President" refers to Executive Order (E.O.) 1132. In this order, the President gave VA the discretion to authorize or approve the payment or the actual expenses of travel to or from a VA facility or other place for certain qualified individuals, including veterans traveling to or from such locations for the purpose of examination, treatment or care. Executive Order (E.O.) 1132 (Sept. 6, 1966). VA regulations provide a mechanism under 38 U.S.C. § 111 (and by extension E.O. 1132) for VA to make payments for travel expenses incurred in the United States to help veterans and other persons obtain care or services from VA. 38 C.F.R. § 70.1. The regulations define "the United States" as each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. 38 C.F.R. § 70.2. For each fiscal year, the Secretary of Veterans Affairs will determine whether funds are available for paying expenses for such beneficiary travel. 38 C.F.R. § 70.3. If the Secretary determines that funds are available for such purpose, VA will make payment for expenses of such travel in accordance with certain eligibility criteria. Eligible persons for receiving beneficiary travel payments include a veteran who travels to or from a VA facility or VA-authorized health care facility in connection with treatment or care for a service-connected disability (regardless of percent of disability). 38 C.F.R. § 70.10(a)(1). At the time of the filing of the Veteran's initial claim, the regulation governing the FMP indicated that VA may furnish hospital care and medical services to any veteran sojourning or residing outside the United States, without regard to the veteran's citizenship: (a) if necessary for treatment of a service-connected disability, or any disability associated with and held to be aggravating a service-connected disability; or (b) if the care is furnished to a veteran participating in a rehabilitation program under provisions of Chapter 31, Title 38, United States Code, who requires care for the reasons enumerated in 38 C.F.R. § 17.48(j)(2). 38 C.F.R. § 17.35 (in effect prior to July 25, 2018). See 38 U.S.C. § 1724. Effective July 25, 2018, this regulation was amended slightly to read, in pertinent part: Under the FMP, VA may furnish hospital care and outpatient services to any veteran outside of the United States, without regard to the veteran's citizenship: (1) If necessary for treatment of a service-connected disability, or any disability associated with and held to be aggravating a service-connected disability; (2) If the care and services are furnished to a veteran participating in a rehabilitation program under 38 U.S.C. chapter 31 who requires care and services for the reasons enumerated in § 17.47(i)(2). 38 C.F.R. § 17.35 (effective July 25, 2018). See 38 U.S.C. § 1724. This amendment did not substantively change the scope of medical services that may be furnished under the FMP to Veterans living in Japan. Id. The above summarized regulations do not authorize payment or reimbursement of the cost of travel to or from medical appointments, procedures or receipt of any other medical services for service-connected disabilities for veterans living in Japan. In this regard, the FMP regulations refer only to furnishing the actual care or services in question and do not reference any travel benefits. 38 C.F.R. § 17.35. Moreover, although the beneficiary travel regulations allow for VA pay or reimburse for travel by a veteran for the purpose of receiving treatment or care for a service-connected disability, this payment or reimbursement is limited to veterans receiving such care or treatment in the United States. 38 C.F.R. § 70.1. In turn, the United States is defined as each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico, a definition, which does not include Japan. 38 C.F.R. § 70.2. Consequently, the Board has no basis for awarding payment or reimbursement for the cost of the Veteran's travel to and from medical providers in Japan in relation to treatment for his service-connected disabilities. For these reasons, the appeal is denied. REASONS FOR REMAND The Veteran seeks reimbursement of multiple claims dated in 2015, 2016, 2017, and 2018. According to the SOC, these claims include expenses for seven incidences of office visits and medication in 2015, five incidences of office visits and medication in 2016, an examination and abdominal CT in 2017, an endoscopy in 2017, three incidences of office visits and in medication in 2017, one incident of treatment for Behcet’s disease in 2017 and one incidence in 2018, and one incidence of treatment with Selenium and one of treatment with Xyzal in 2018. Regarding the claims concerning apparent treatment for Behcet’s disease in 2017 and 2018, while these claims were noted on a spreadsheet of denied claims attached to the SOC, it was not clear that they were actually adjudicated in the Reasons and Bases section of the SOC. Therefore, the Board has listed them as a separate issue. The Veteran argued that many of these treatments were associated with his Ekbom’s disease, which is not a service-connected disability. He filed an appeal with an August 2018 rating decision that denied service connection that disorder (claimed as psychotic disorder, mood disorder, treatment-resistant depression, panic disorder, and personality disorder, as well as Ekbom’s disease), chronic fatigue syndrome, arthritis of multiple joints, cardiac arrhythmia, degenerative disc disease of the cervical spine and lumbar spine, focal traumatic brain injury (TBI), gastroparesis, hallux rigidus, obstructive sleep apnea syndrome, osteopenia, periodic limb movement disorder, pleural thickening, scoliosis, vitamin V12-deficiency, vitamin B9 deficiency, and general vitamin deficiency. The appeal of those claims is currently with the appropriate Regional Office of the Veterans Benefits Administration (VBA) and awaiting an SOC; however, as the outcome of at least some of the medical reimbursement claims could be materially affected by the development and adjudication of the above claims, these issues are inextricably intertwined. Thus, the medical reimbursement appeals are remanded. Therefore, these issues are remanded to the Agency of Original Jurisdiction (AOJ) so that the pertinent service connection and vocational rehabilitation issues may be developed and adjudicated before further adjudication of these claims. Additionally, in the cover letter for the October 2018 SOC, the AOJ referred to a spreadsheet titled Clinical Determinations, and in the “Reasons and Bases” for the issue, the adjudicator indicated that the Clinical Determinations spreadsheet and requests for documents pertained to claims still be developed and not on appeal. Although cited as attached to the SOC, the Clinical Determinations spreadsheet is not of record. Moreover, it appears from the SOC, that the claims addressed on that spreadsheet are still being developed and are therefore not ripe for appellate adjudication. Therefore, the Board remands this issue for further development and to ensure that the appellant is afforded all necessary due process. The matters are REMANDED for the following actions: 1. The AOJ should coordinate with the RO regarding the appeals of the August 2018 rating decision, and once appellate action is complete with regard to those appeals, readjudicate the Veteran’s claims for payment or reimbursement of his medical expenses in light of any additions to his service-connected disabilities. 2. Complete all necessary development regarding the apparently claims listed on the outstanding Clinical Determinations spreadsheet and take all necessary actions to adjudicate the claims and provide the Veteran with all required due process and opportunity to appeal any denials. Any subsequent adjudication of the appeal by the AOJ must explicitly state the dates of claims being addressed and the reasons for the denial. If any claims adjudicated on the October 2018 SOC are granted before return of the appeal to the Board, the grant should be clearly documented in the record. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.