Citation Nr: 21001732 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-09 004A DATE: January 11, 2021 REMANDED Entitlement to payment or reimbursement of beneficiary travel expenses to and from VA medical facilities for the time period from March 22, 2011 to November 25, 2013 is remanded. REASONS FOR REMAND The Veteran had active duty service in the U.S. Marine Corps from September 1983 to July 1986 and from January 1988 to February 1992. He also had active duty service in the U.S. Army from October 2004 to August 2006. In addition, he also served in the California Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 decision issued by the Department of Veterans Affairs (VA) San Diego Healthcare System (HCS). In July 2019, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s claims file. This claim was previously before the Board in September 2019, at which time the Board remanded it for additional development. Following development by the HCS, the claim was returned to the Board for further appellate consideration. Entitlement to payment or reimbursement of beneficiary travel expenses to and from VA medical facilities for the time period from March 22, 2011 to November 25, 2013 is remanded. Under 38 U.S.C. § 111, VA may make payments for travel expenses incurred within the United States to help veterans and other persons obtain care of services of the Veterans Health Administration (VHA). See also 38 C.F.R. § 70.10(a). Persons eligible for beneficiary travel payments include veterans who travel to or from a VA facility or VA-authorized health care facility for treatment for a service-connected disability or for any disability, provided that the veteran has a service-connected disability rated at 30 percent or more. 38 U.S.C. § 111; 38 C.F.R. § 70.10(a)(1-2). In the present case, for the time period in question from March 22, 2011 to November 25, 2013, it is undisputed the Veteran is eligible for beneficiary travel payments for travel to or from a VA facility for treatment of any disability. This is due to the fact that he had a service-connected disability (right cervical myelopathy) rated at 30 percent during this timeframe. See 38 C.F.R. § 70.10(a)(2). However, a claimant must apply for payment of beneficiary travel within 30 calendar days after completing the travel that does not include a special mode of transportation. 38 C.F.R. § 70.20(b). Claimants for beneficiary travel must submit the information required to the Chief of the Business Office or other designee at the VA medical facility responsible for the medical care or services being provided and for which travel is required. 38 C.F.R. § 70.21. The claimant may apply for beneficiary travel orally or in writing, but must provide VA the receipt for each expense other than mileage. 38 C.F.R. § 70.20(a). The date of an application for beneficiary travel is the postmark date, if mailed; or the date of submission if hand delivered, provided by electronic means, or provided orally. 38 C.F.R. § 70.20(g). In the present case, the Agency of Original Jurisdiction (AOJ) determined that the Veteran failed to file his application for travel expenses within 30 calendar days after completing the travel for the VA treatment he received for the time period from March 22, 2011 to November 25, 2013. See February 2013 decision on appeal; January 2015 and April 2018 Statements of the Case (SOCs). In short, the Veteran's request for reimbursement of travel expenses was denied as untimely. The Veteran appealed this denial to the Board. The Veteran seeks beneficiary travel payments for his travel to the VA Medical Center (VAMC) in San Diego, for approximately 30 VA medical appointments for the time period from March 22, 2011 to November 25, 2013. He believes he is owed approximately $1,500 from the VA for the travel expenses associated with these 30 appointments. The Veteran has reported that on March 7, 2011, a VA employee at the VA travel pay office at the VAMC in San Diego erroneously advised the Veteran that he was no longer eligible for beneficiary travel payments. Thereafter, multiple VA employees advised him that he was on "no travel pay status" due to the Veteran relocating without providing VA his new address. (He disputes this he says his address did not change). He testified at the September 2019 Board hearing that he attempted to file applications for travel expenses on at least three occasions after March 7, 2011, but VA personnel would not accept his applications due to his "no travel pay status." Therefore, he stopped applying for travel expenses for future VA appointments from 2011 to 2013, since VA had falsely told him he was ineligible. Subsequently, in May 2013, the Veteran says he spoke to C.K., the VA Mobility Manager of Beneficiary Travel and Veterans Transportation Service at the VAMC in San Diego. C.K., allegedly told the Veteran he was unaware of the Veteran’s “no travel pay status.” Despite the alleged false information provided by other VA personnel, the Veteran had actually been entitled to beneficiary travel expenses all along, per the Veteran’s hearing testimony. The Veteran asserted that if he had known this, he would have applied for travel expenses for the 30 VA medical appointments in question from 2011 to 2013. In summary, the Veteran asserts he should receive retroactive compensation from VA for travel expenses for the time period from March 22, 2011 to November 25, 2013, on an equitable basis. See March 2013 Veteran statement; January 2014 NOD; and July 2019 videoconference hearing testimony. In the present case, the central issue is whether the Veteran is entitled to payment or reimbursement for travel expenses to and from these VA medical appointments for the time period from March 22, 2011 to November 25, 2013, despite failing to file his claim within 30 calendar days of each of the VA appointments. Equitable tolling is applied to a time limit when circumstances preclude a timely filing of a document despite the exercise of due diligence, to include the reliance on the incorrect statement of a VA official. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). According to the United States Court of Appeals for the Federal Circuit, in order to benefit from equitable tolling, a claimant must establish three elements: (1) an extraordinary circumstance; (2) that caused an inability to file during the requested tolling period; and, (3) diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). In Checo, the Federal Circuit Court explained that this standard is consistent with other jurisdictions and the guidance provided by the Supreme Court. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("But the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect."). Tolling of a deadline for filing an appeal is referred to as the "stop-clock" approach because the clock measuring the appeal period is "stopped" during the extraordinary circumstance period and starts ticking again only when the period is over. Checo, 748 F.3d at 1379. Equitable tolling is not appropriate where the failure to file on time was due to general negligence or procrastination of the claimant. Bove, 25 Vet. App. at 140. In September 2019 Board remand, it was noted that in light of the Veteran’s arguments based on equity, additional development of the evidence was required. Certain written documentation that may be helpful to the Veteran’s claim was missing from the claims file. On remand, not all of the development ordered by the Board in September 2019 was done. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim must be remanded again for the following development: First, the AOJ should ask the Veteran to submit any copies of applications for travel expenses that he alleges he attempted to file on at least three occasions after March 7, 2011 (those applications which he has claimed VA personnel would not accept due to his “no travel pay status” at the time). The Veteran should also submit any written documentation he received from VA establishing, indicating, or suggesting that he was ineligible for payment of travel expenses or on “no travel pay status” due to problems with his mailing address for the time period from March 22, 2011 to November 25, 2013. Second, the AOJ should associate with the claims file any written documentation from VA establishing that the Veteran was ineligible for payment of travel expenses or on “no travel pay status” due to problems with his mailing address for the time period from March 22, 2011 to November 25, 2013. Or, if no written documentation from VA is available, the AOJ should simply clarify for the record whether the Veteran was ineligible for payment of travel expenses or on “no travel pay status” for this time period. Third, in the February 4, 2013 decision on appeal, C.K., the supervisor of the VA Mobility Manager of Beneficiary Travel and Veterans Transportation Service at the VAMC in San Diego, noted that the Veteran had made a “recent inquiry through the Patient Advocate’s office requesting reimbursement of travel expenses for visits that occurred between March and September of 2011. [The Veteran’s] concerns were communicated to me.” The AOJ should associate with the claims file any written documentation of the Veteran’s “recent inquiry” noted above, to determine if it occurred within 30 calendar days of his last VA medical appointment on November 25, 2013. Fourth, on remand, the AOJ should secure copies of the following missing document listed as being part of the record in the April 2018 statement of the case (SOC), and associate it with the claims file: A Letter from Director of VA Desert Pacific Healthcare to the Veteran dated August 8, 2011. Fifth, on remand, the AOJ should secure copies of the following missing document listed as being part of the record in the January 2015 SOC, and associate it with the claims file: Undated letter from the Veteran to the San Diego VA Healthcare System (VAHCS) director. Sixth, on remand, the AOJ should secure copies of the following missing documents listed as being part of the record in the March 2014 SOC, and associate them with the claims file: 1. Email from Lee Steuer, Office of Congresswoman Susan Davis, to Josie Aquino, San Diego VAHCS dated, March 6, 2014. 2. Letter from Director, San Diego VAHCS to Congressman Ken Calvert, dated April 9, 2013. 3. Letter from Ron Maurer, Ed.D., Director, Office of Congressional and Legislative Affairs Liaison Service, to Congressman Ken Calvert dated March 21, 2013. 4. Undated letter from Veteran to Congressman Ken Calvert. 5. Email from Kansas City Regional Office of the U.S. Treasury to the Veteran, dated January 25, 2013. 6. Letter from Charles Kirkman, Supervisor, Office Operations, to Veteran, dated February 4, 2013. The matters are REMANDED for the following action: 1. The AOJ must ask the Veteran in writing to submit any copies of applications for travel expenses that he alleges he attempted to file on at least three occasions after March 7, 2011, but which VA personnel would not accept due to his “no travel pay status” at the time. The Veteran should also submit any written documentation he received from VA establishing that he was ineligible for payment of travel expenses or on “no travel pay status” due to problems with his mailing address for the time period from March 22, 2011 to November 25, 2013. 2. The AOJ should associate with the claims file any written documentation from VA establishing, indicating or suggesting that the Veteran was ineligible for payment of travel expenses or on “no travel pay status” due to problems with his mailing address for the time period from March 22, 2011 to November 25, 2013. Or, if no written documentation from VA is available, the AOJ should simply clarify in writing for the record whether the Veteran was ineligible for payment of travel expenses or on “no travel pay status” for this time period. 3. The AOJ should associate with the claims file any written documentation of following notation from the February 4, 2013 decision on appeal the Veteran had made a “recent inquiry through the Patient Advocate’s office requesting reimbursement of travel expenses for visits that occurred between March and September of 2011. Your concerns were communicated to me.” The AOJ should associate with the claims file any written documentation of the Veteran’s “recent inquiry” noted above, to determine if it occurred within 30 calendar days of his last VA medical appointment on November 25, 2013. If such written documentation cannot be obtained, a memorandum of unavailability should be added to the claims file. 4. The AOJ should secure copies of the following missing document listed as being part of the record in the April 2018 SOC, and associate them with the claims file: A Letter from Director of VA Desert Pacific Healthcare to the Veteran dated August 8, 2011. If the August 8, 2011 letter cannot be obtained, a memorandum of unavailability should be added to the claims file. 5. The AOJ should secure copies of the following missing document listed as being part of the record in the January 2015 SOC, and associate them with the claims file: Undated letter from the Veteran to the San Diego VA Healthcare System (VAHCS) director. If the undated letter cannot be obtained, a memorandum of unavailability should be added to the claims file. 6. The AOJ should secure copies of the following missing documents listed as being part of the record in the March 2014 SOC, and associate them with the claims file: (a.) Email from Lee Steuer, Office of Congresswoman Susan Davis, to Josie Aquino, San Diego VAHCS, dated March 6, 2014. (b.) Letter from Director, San Diego VAHCS to Congressman Ken Calvert, dated April 9, 2013. (c.) Letter from Ron Maurer, Ed.D., Director, Office of Congressional and Legislative Affairs Liaison Service, to Congressman Ken Calvert, dated March 21, 2013. (d.) Undated letter from Veteran to Congressman Ken Calvert. (e.) Email from Kansas City Regional Office of the U.S. Treasury to the Veteran, dated January 25, 2013. (f.) Letter from Charles Kirkman, Supervisor, Office Operations, to Veteran, dated February 4, 2013. 7. After completion of steps 1-6 above, the AOJ should readjudicate the issue on appeal of entitlement to payment or reimbursement of beneficiary travel expenses to and from VA medical facilities for the time period from March 22, 2011 to November 25, 2013. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.