Carolyn K. Holle v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-1235

CAROLYN K. HOLLE, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 10, 2016)

Marshall E. Jackson, Jr., of Washington, D.C., was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief Counsel; Thomas E. Sullivan,

Deputy Chief Counsel; and Ronen Z. Morris, Senior Appellate Attorney, all of Washington, D.C.,

were on the brief for the appellee.

Before DAVIS, SCHOELEN, and PIETSCH, Judges.

SCHOELEN, Judge: The pro se appellant, Carolyn K. Holle, appeals a March 26, 2014,

Board of Veterans' Appeals (Board) decision in which the Board denied eligibility for benefits

through the Civilian Health and Medical Program of the Department of Veterans Affairs

(CHAMPVA) from December 1, 2004, through May 31, 2009. Record of Proceedings (R.) at 2-7.

This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to

38 U.S.C. §§ 7252(a) and 7266(a). This appeal presents two issues of first impression before this

Court; specifically, (1) whether enrollment in Medicare Part B is a precondition to CHAMPVA

eligibility, and (2) whether the principle of equitable tolling applies to CHAMPVA's Medicare Part

B enrollment deadlines. For the following reasons, the Court will affirm the Board's March 2014

decision.

I. BACKGROUND

The appellant, Carolyn K. Holle, is the spouse of veteran Norman L. Holle. R. at 497. The

veteran served on active duty in the U.S. Army from April 1962 to April 1965. R. at 915-16. An

August 2002 rating decision found the veteran was entitled to a total disability rating based on

individual unemployability because his post-traumatic stress disorder (PTSD) rendered him

unemployable. R. at 277-80.

In November 2002, Mrs. Holle applied for CHAMPVA benefits, indicating that she was

born on June 22, 1944, and that her husband was rated permanently and totally disabled from a

service-connected disability. R. at 873. In December 2002, Mrs. Holle received a letter from the

VA Health Administration Center (HAC) informing her that she was eligible for CHAMPVA

benefits and explaining how to apply. R. at 872. The letter informed her that a new CHAMPVA

handbook was enclosed and that a handbook supplement would be mailed separately. Id.

In May 2005, the Social Security Administration (SSA) awarded Mrs. Holle disability

benefits. R. at 849-54. An April 2009 correspondence between the HAC and Mrs. Holle indicates

that Mrs. Holle was enrolled in Medicare Part A as of December 1, 2004, and in Medicare Part B

as of June 1, 2009. R. at 871. In a May 2009 letter, the HAC notified Mrs. Holle that she had "a

break or ineligible period of coverage." R. at 857. The letter explained that, pursuant to the

eligibility criteria outlined in the CHAMPVA handbook, Mrs. Holle was ineligible for CHAMPVA

benefits during the period she was not enrolled in Medicare Part B. Id. Accordingly, the letter

informed Mrs. Holle that she would receive an invoice for any CHAMPVA monetary benefits

received during the period of ineligibility. Id.

After an inquiry from Mrs. Holle's Congressman, the HAC explained that when the SSA

granted Mrs. Holle disability compensation in May 2005, she was "automatically enrolled in

Medicare Part A and Part B, effective December 2004; however, she terminated her Part B

Coverage." R. at 855. Because she did not enroll in Medicare Part B again until June 2009, she was

ineligible for CHAMPVA for the period while she was not enrolled in Medicare Part B, from

December 1, 2004, through May 31, 2009. Id. The letter noted that the eligibility criteria were

included in the CHAMPVA handbook that Mrs. Holle would have received in 2002 and 2004. Id.

In June 2009, Mrs. Holle submitted a statement asserting that she had had a stroke that

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"caused memory loss and made it difficult for day[-]to[-]day living." R. at 847. She also stated that

she "did not know that [she] should be using Part B" and indicated that her husband's PTSD

prevented him from helping her. Id. In September 2009, the HAC issued a Statement of the Case.

R. at 829-34.

In October 2009, Mrs. Holle submitted another statement asking to appeal the CHAMPVA

decision. R. at 826. Mrs. Holle again asserted that her stroke has left her with "severe memory

problems" and that "[she] did not even know that [she] needed to have Medicare." Id.

In August 2010, Mr. and Mrs. Holle testified at a Board hearing. R. at 789-800. They

testified that neither was aware that Mrs. Holle needed to be enrolled in Medicare Part B to retain

her eligibility for CHAMPVA benefits and that because of their "severe head problems . . . it never

once dawned on [them]" that they needed Medicare. R. at 793. The veteran stated that it would have

been better for them to have had Medicare because it would have been easier to find doctors and that

they never intended to do anything wrong. Id. The veteran also indicated that they had brought to

the hearing statements from doctors attesting to the severity of their individual mental disabilities

– in particular that Mrs. Holle struggles with short-term memory. R. at 791.

In the March 2014 decision on appeal, the Board noted that "the legal criteria in the case are

clear and the pertinent facts are not in dispute." R. at 6. The Board noted that the CHAMPVA

criteria require that Mrs. Holle be enrolled in Medicare Part B, and that from December 1, 2004,

through May 31, 2009, Mrs. Holle was not enrolled in Medicare Part B. Id. The Board expressed

sympathy for Mrs. Holle's situation but concluded that "there is simply no legal provision pursuant

to which the Board may grant the benefits sought." Id. The Board also found that the notice and

assistance requirements of the Veterans Claims Assistance Act (VCAA) are not applicable in this

case because the law and not the evidence is dispositive of the appellant's eligibility for CHAMPVA

benefits. Id. Therefore, the Board denied Mrs. Holle's claim. Id. This appeal followed.

II. THE PARTIES' ARGUMENTS

Mrs. Holle argues that although she was not enrolled in Medicare Part B from December 1,

2004, through May 31, 2009, she is entitled to equitable tolling of "her December 1, 2004, filing of

her enrollment in Medicare Part B." Appellant's Brief (Br.) at 4. Mrs. Holle argues that she suffers

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from severe mental and physical conditions that inhibited her ability to understand the requirements

for CHAMPVA eligibility and properly enroll in Medicare Part B during the period at issue, despite

the exercise of reasonable diligence. Id. at 15. Consequently, she argues that she is entitled to

equitable tolling of the December 1, 2004, filing date of her enrollment in Medicare Part B. Id. at

18. Alternatively, she argues that the Board failed to satisfy the duty to assist by not developing the

record adequately regarding her entitlement to equitable tolling. Id. at 18-20.

The Secretary argues that under 38 U.S.C. § 1781, Mrs. Holle was required to enroll in

Medicare Part B to be eligible for CHAMPVA benefits. Secretary's Br. at 5. The Secretary asserts

that Mrs. Holle's equitable tolling argument is misplaced for three reasons: (1) This case does not

concern the ability to bring or prosecute an appeal; (2) there is no deadline to be tolled; and (3) to

the extent Mrs. Holle seeks equitable relief, the Court lacks authority to waive a statutory and

regulatory precondition to the receipt of CHAMPVA benefits. Id. at 5.

III. ANALYSIS

A. Statutory Interpretation

This case calls upon the Court to interpret the statutory provisions related to CHAMPVA

eligibility under 38 U.S.C. § 1781. The Court reviews VA's interpretation of statutes and regulations

de novo. See Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute

or regulation is a question of law . . . ."); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc)

(stating that the Court reviews "questions of law de novo without any deference to the [Board's]

conclusions of law"). The Court must first analyze the language of the authorizing statute and

determine "whether Congress has directly spoken to the precise question at issue."

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Statutory terms are

interpreted "'in their context and with a view to their place in the overall statutory scheme.'" Tyler

v. Cain, 533 U.S. 656, 662 (2001) (quoting Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809

(1989)). If, employing the traditional tools of statutory construction, the Court finds that the "intent

of Congress is clear, that is the end of the matter; for the [C]ourt, as well as the agency, must give

effect to the unambiguously expressed intent of Congress." Id. at 842-43. On the other hand, if the

Court concludes that "the statute is silent or ambiguous with respect to the specific issue, the

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question for the court is whether the agency's answer is based on a permissible construction of the

statute." Chevron, 467 U.S. at 843.

Pursuant to 38 U.S.C. § 1781, VA is authorized to provide medical care for the survivors and

dependents of certain veterans through the CHAMPVA program. 38 U.S.C. § 1781; 38 C.F.R.

§ 17.271 (2015). For this program, eligible persons include the spouse or child of a veteran who has

been adjudicated by VA as having a permanent and total service-connected disability. Id. In

addition to this requirement, section 1781(d)(1)(A) requires that

[a]n individual otherwise eligible for medical care under this section who is also

entitled to hospital insurance benefits under part A of the medicare program is

eligible for medical care under this section only if the individual is also enrolled in

the supplementary medical insurance program under part B of the medicare program.

38 U.S.C. § 1781(d)(1)(A). Furthermore, section 1781 (d)(1)(B) states:

The limitation in subparagraph (A) does not apply to an individual who –

(i) has attained 65 years of age as of June 5, 2001; and

(ii) is not enrolled in the supplementary medical insurance program under part B of

the medicare program as of that date.

38 U.S.C. § 1781(d)(1)(B).

The Court's analysis begins with the language of the specific provision at issue,

38 U.S.C. § 1781(d)(1)(A). See Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)

("'Statutory interpretation begins with the language of the statute, the plain meaning of which we

derive from its text and structure.'" (quoting McEntee v. M.S.P.B., 404 F.3d 1320, 1328 (Fed. Cir.

2005))). Pursuant to this provision, an individual who satisfies the other requirements for the

program and is entitled to hospital insurance benefits under Medicare Part A "is eligible for medical

care under [] section [1781(d)(1)(A)] only if the individual is also enrolled in the supplementary

medical insurance program under Part B of the medicare program." 38 U.S.C. § 1781(d)(1)(A)

(emphasis added). Here, the plain meaning of the word "only" as "solely" or "exclusively" creates

a mandatory prerequisite to CHAMPVA eligibility: Even if a claimant satisfies the other eligibility

criteria, he or she is eligible for CHAMPVA benefits "only if" the claimant is also "enrolled" in

Medicare Part B. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 812 (10th ed. 1999) (defining

"only" as a single fact or instance and nothing more; solely, exclusively). Furthermore, the plain

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meaning of the phrase "is also enrolled in" signifies a current and ongoing state of enrollment, in

essence providing an individual who is otherwise qualified for CHAMPVA benefits with an ongoing

Medicare Part B enrollment obligation. See OXFORD ENGLISH DICTIONARY 276-77 (2d ed. 1989)

(defining "enroll" as "to incorporate as a registered or acknowledged member").

The Court notes that section 1781 includes an exemption. Under section 1781(d)(1)(B), the

Medicare Part B requirement in subparagraph A does not apply to an individual who "has attained

65 years of age as of June 5, 2001," and "is not enrolled in the supplementary medical insurance

program under part B of the medicare program as of that date." Mrs. Holle does not argue, and the

facts do not suggest, that she qualifies for this exemption. Therefore, the Court holds that the

statutory language creates a clear requirement that a claimant be enrolled in Medicare Part B to be

eligible for CHAMPVA benefits unless that claimant satisfies one specific exemption. See Ventas,

Inc. v. United States, 381 F.3d 1156, 1161 (Fed. Cir. 2004) ("Where Congress includes certain

exceptions in a statute, the maxim expressio unius est exclusio alterius presumes that those are the

only exceptions Congress intended."); McCray v. McGee, 504 A.2d 1128, 1130 (D.C. 1986) (quoting

2A SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 47.23 (4th ed. 1984) for the

proposition that, "when a legislature makes express mention of one thing, the exclusion of others is

implied, because 'there is an inference that all omissions should be understood as exclusions'"); see

also Haines v. West, 154 F.3d 1298, 1301-02 (Fed. Cir. 1998) ("A party 'cannot rely upon the

generous spirit that suffuses the law generally to override the clear meaning of a particular

provision.'" (quoting Smith v. Brown, 35 F.3d 1516, 1525 (Fed. Cir. 1994))).

In the decision on appeal, the Board properly articulated and applied the legal standard set

forth in sections 1781(d)(1)(A) and (B). The Board noted that in order to receive CHAMPVA

benefits, Mrs. Holle needed to be enrolled in Medicare Part B, but did not enroll until June 1, 2009.

R. at 6, 855. The Board further found that Mrs. Holle did not qualify for the exemption enumerated

in section 1781(d)(1)(B) because "she [only] reached the age of 65 on June 22, 2009." Id. Mrs.

Holle does not dispute either finding of fact. The Court concludes that the Board properly

interpreted the statute regarding Mrs. Holle's CHAMPVA eligibility.

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B. Equitable Tolling

Equitable tolling is a tool used to grant relief when a potential appellant fails to file suit

within a statutory limitations period. See 51 AM. JUR. 2D Limitation of Actions § 153 (2016)

("Equitable tolling . . . allows a [party] to initiate an action beyond the statute of limitations

deadline . . . ."). As Mrs. Holle herself correctly points out, equitable tolling is appropriate in cases

where timely filing of a Notice of Appeal (NOA) is precluded by circumstances such as "(1) mental

illness rendering one incapable of handling one's own affairs or other extraordinary circumstances

beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the

regional office or the Board." Appellant's Br. at 4 (quoting Sneed v. Shinseki, 737 F.3d 719, 723

(Fed. Cir. 2013)); see generally Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011); Bove v.

Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam).

Mrs. Holle acknowledges that she was not enrolled in Medicare Part B from December 2004

through May 2009. Rather, she suggests that although she does not satisfy the Medicare Part B

requirement, her extreme medical disabilities constitute an extraordinary circumstance under which

she should be allowed to benefit from CHAMPVA. Specifically, she argues that she is entitled to

equitable tolling of the "NOA" deadline "due to the extraordinary circumstances she faced during

the [r]elevant [p]eriod and continues to face today." Appellant's Br. at 15-16. She further argues that

her physical and mental disabilities warrant "additional time . . . to file for Medicare Part B to

continue to have full CHAMPVA benefits." Id. at 6.

Mrs. Holle's argument that she is entitled to equitable tolling is misplaced. Mrs. Holle takes

great pains to describe her medical conditions – which are indeed severe – and to explain how they

prevented her from enrolling in Medicare Part B. However, although Mrs. Holle characterizes her

request as a request to toll an NOA deadline, what Mrs. Holle asks the Court to toll is "her December

1, 2004, filing [date] of her enrollment in Medicare Part B." Appellant's Br. at 4, 18. The Court

cannot grant the requested relief.

In other contexts, both the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and

this Court have refused to apply equitable tolling principles to statutes and regulations that merely

indicate when benefits may begin. For example, in Andrews v. Principi, 351 F.3d 1134, 1137-38

(Fed. Cir. 2003), and Rodriguez v. West, 189 F.3d 1351, 1354-55 (Fed. Cir. 1999), the Federal

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Circuit held that 38 U.S.C. § 5110, which governs the effective date of the payment of benefits, does

not contain a statute of limitations. The Federal Circuit unequivocally stated that "[section] 5110

does not contain a statute of limitations, but merely indicates when benefits may begin and provides

for an earlier date under certain limited circumstances . . . . Section 5110 addresses the question of

when benefits begin to accrue, not whether a veteran is entitled to benefits at all." Andrews,

351 F.3d at 1137-38.

In Edwards v. Peake, this Court relied on Andrews and Rodriguez to hold in other contexts

that the period for submitting evidence is not subject to equitable tolling. 22 Vet.App. 29, 36 (2008),

aff'd sub nom. Edwards v. Shinseki, 582 F.3d 1351 (Fed. Cir. 2009). Specifically, the Court held that

the period for submitting additional evidence in connection with a claim that has been denied, see

38 C.F.R. § 3.156(b) (2015), is not a statute of limitations that may be equitably tolled, concluding

that "[Mr. Edwards] . . . [wa]s 'ask[ing] this [C]ourt to waive the express statutory requirements for

an earlier effective date for [service connection], which we cannot do.'" Id. at 36-37 (quoting

Andrews, 351 F.3d at 1138).

In this case, the statutes and regulations at issue in Andrews, Rodriguez, and Edwards are

instructive. Like section 5110 and § 3.156(b), section 1781 merely indicates when CHAMPVA

benefits may begin – after an individual enrolls in Medicare Part B. Conspicuously absent from

section 1781 is any language denoting a statute of limitations that the Court can equitably toll.

Accordingly, the Court holds that CHAMPVA's enrollment requirements cannot be construed as a

statute of limitations and, therefore, are not subject to equitable tolling.

In December 2004, after Mrs. Holle was deemed eligible for CHAMPVA benefits, she

terminated her enrollment in Medicare Part B. Although Mrs. Holle provides a detailed discussion

of equitable tolling precedents, Mrs. Holle fails to explain how the principle of equitable tolling may

be applied to her December 2004 filing terminating Medicare Part B. Simply put, there is no

mechanism permitting this Court to equitably toll CHAMPVA's statutory enrollment requirements.

See generally Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990).

Finally, to the extent Mrs. Holle's argument may be construed as seeking equitable relief from

this Court, the Court is unable to provide such a remedy. The Court sympathizes with Mrs. Holle's

circumstances. However, this Court may not award equitable relief, no matter how compelling the

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facts. See Taylor v. West, 11 Vet.App. 436, 440 (1998); Moffitt v. Brown, 10 Vet.App. 214, 225

(1997). The Court notes that the Secretary, in appropriate cases, may provide equitable relief. See

38 U.S.C. § 503; Zimick v. West, 11 Vet.App. 45, 50-51 (1998); 38 C.F.R. § 2.7 (2015). The

Secretary's authority under section 503 is entirely discretionary and not reviewable by this Court.

See Zimick, supra; see also Smith v. Gober, 14 Vet.App. 227 (2000).

C. Duty To Assist

The Secretary "shall make reasonable efforts to assist a claimant in obtaining evidence

necessary to substantiate the claimant's claim for a benefit under a law administered by the

Secretary." 38 U.S.C. § 5103A(a)(1). However, the "[t]he Secretary is not required to provide

assistance to a claimant under this section if no reasonable possibility exists that such assistance

would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). The Court reviews the Board's

determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review.

Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "A factual finding 'is "clearly erroneous" when

although there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App.

91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

Mrs. Holle essentially argues that because the record contains evidence that she has cognitive

impairments, VA was put on notice "that additional evidence is needed to fully develop the facts

regarding equitable tolling." Appellant's Br. at 20. The Board stated that "VA's General Counsel

has held that the notice and assistance requirements of the [VCAA] are not applicable where there

is no legal basis for the claim or because undisputed facts render the claimant ineligible for the

claimed benefit." R. at 6 (citing VA Gen. Coun. Prec. 5-2004 (June 23, 2004)). As noted above,

there is no legal mechanism by which the Court can equitably toll CHAMPVA's Medicare Part B

enrollment requirement. Because there is no legal method of granting Mrs. Holle the relief she

seeks, no further development of the record is required. See 38 U.S.C. § 5103A(a)(2). Accordingly

the Court finds that the Board did not clearly err in its determination that no assistance was required.

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IV. CONCLUSION

After consideration of the appellant's and the Secretary's pleadings, and a review of the

record, the Board's March 26, 2014, decision is AFFIRMED.

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