Peter Van Dermark v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-2795

PETER VAN DERMARK, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 20, 2020 Decided June 1, 2021)

Luke D. Miller, of Salem, Oregon, for the appellant.

James R. Drysdale, with whom William A. Hudson, Jr., Acting General Counsel; Mary

Ann Flynn, Chief Counsel; and Anna Whited, Deputy Chief Counsel, were on the brief, all of

Washington, D.C., for the appellee.

John D. Niles, Barton F. Stichman, Chris Childs, and Emily Wexler were on the brief, all

of Washington, D.C., for the National Veterans Legal Services Program and the Modern Military

Association of America as amici curiae.

Before PIETSCH, GREENBERG, and TOTH, Judges.

TOTH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting

opinion.

TOTH, Judge: Veteran Peter Van Dermark appeals a Board decision denying

reimbursement for cardiac treatments at Bangkok Hospital in May 2016 and May 2018. He asserts

that these were emergency treatments and that two statutes, 38 U.S.C. §§ 1725 and 1728, require

VA to reimburse him for any money he personally expended for this care. The Board disagreed,

concluding that these statutes were not applicable outside the United States. Instead, it found that

38 U.S.C. § 1724 and relevant VA regulations governed and barred VA from furnishing—that is,

paying for—cardiac treatment outside the United States because such a condition was not

connected to service. Because we agree that section 1724 generally bars the Secretary from paying

for emergency treatment abroad of a non-service-connected condition, the Court affirms the Board

decision.

I. BACKGROUND

A. Law

This case concerns the interaction of three statutes within chapter 17 of title 38 of the U.S.

Code: sections 1724, 1725, and 1728. We start with an overview of each.

1.

The first is 38 U.S.C. § 1724, entitled "Hospital care, medical services and nursing home

care abroad." It is the only statutory provision that expressly addresses VA's healthcare obligations

outside the United States. At present, it instructs that "the Secretary shall not furnish hospital or

domiciliary care or medical services outside any State."1 38 U.S.C. § 1724(a).

Subsections (b) and (c) of the statute create explicit exceptions to this prohibition. Under

(b)(1), VA "may furnish" medical services and hospital care abroad to a U.S. citizen veteran "who

is otherwise eligible to receive" them when necessary for treatment of a service-connected

disability or as part of a rehabilitation program. Under (b)(2), the Secretary has discretion to furnish

non-citizen veterans in the Philippines or Canada care and services for service-connected

disabilities if he determines the care to be appropriate and feasible. Subsection (c) allows the

Secretary, "[w]ithin the limits of those facilities of the Veterans Memorial Medical Center at

Manila, Republic of the Philippines, for which the Secretary may contract," to "furnish necessary

hospital care to a veteran for any non-service-connected disability if such veteran is unable to

defray the expenses of necessary hospital care."

Finally, the statute allows the Secretary, "[w]ithin the limits of an outpatient clinic in the

Republic of the Philippines that is under the direct jurisdiction of the Secretary," to "furnish a

veteran who has a service-connected disability with such medical services as the Secretary

determines to be needed." 38 U.S.C. § 1724(e).

VA implemented this statute by establishing the Foreign Medical Program (FMP) to

"furnish hospital care and outpatient services to any veteran outside of the United States, without

regard to the veteran's citizenship" if such care and services are "necessary for treatment of a

service-connected disability, or any disability associated with and held to be aggravating a service-

connected disability," or are "furnished to a veteran participating in a rehabilitation program under

. . . chapter 31." 38 C.F.R. § 17.35(a)(1)-(2) (2020). Subsection (b) addresses the special

1

"The term 'State' means each of the several States, Territories, and possessions of the United States, the

District of Columbia, and the Commonwealth of Puerto Rico." 38 U.S.C. § 101(20).

2

circumstances regarding treatment in the Philippines. "Claims for payment or reimbursement for

services not previously authorized by VA under this section are governed by §§ 17.123-17.127

and 17.129-17.132." 38 U.S.C. § 17.35(c).

2.

Next to be enacted, in 1973, was section 1728, which instructs the Secretary to "reimburse

veterans eligible for hospital care or medical services . . . for the customary and usual charges of

emergency treatment (including travel and incidental expenses under [certain terms and

conditions])" when such emergency treatment was rendered outside the VA system for any of the

following: (1) an "adjudicated" service-connected disability; (2) a non-service-connected

disability "associated with and held to be aggravating a service-connected disability"; (3) any

disability, if a veteran has a permanent total disability; or (4) any illness, injury, or dental condition

of a veteran in a rehabilitation program where the care or treatment is necessary to facilitate

entrance into or continuation of that program. 38 U.S.C. § 1728(a).

The implementing regulation, 38 C.F.R. § 17.120, reiterates these criteria without much

elaboration except for (a)(3), with respect to which it provides: "For any disability of a veteran

who has a total disability permanent in nature resulting from a service-connected disability (does

not apply outside of the States, Territories, and possessions of the United States, the District of

Columbia, and the Commonwealth of Puerto Rico)." 38 C.F.R. § 17.120(a)(3) (2020). Prior to its

recodification in 1996, this regulation was located at 38 C.F.R. § 1780. See 61 Fed. Reg. 21,965,

21,968 (May 13, 1996). The parenthetical language was added in 1986 "to more accurately define

the eligibility requirements for claims filed for VA payment of unauthorized medical services."

51 Fed. Reg. 8672, 8672 (Mar. 13, 1986).

Originally, section 1728 did not define "emergency treatment," see Pub. L. No. 93-82,

Title I, § 106(a), 87 Stat. 179, 183 (Aug. 2, 1973), but Congress eventually assigned it the same

meaning as it bore in the later-enacted section 1725. 38 U.S.C. § 1728(c). We turn to that final

section now.

3.

Section 1725 was enacted in 1999 and addresses, in depth, the issue of VA's reimbursement

for emergency treatments. It defines "emergency treatment" as "medical care or services furnished,

in the judgment of the Secretary—"

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(A) when Department or other Federal facilities are not feasibly available and an

attempt to use them beforehand would not be reasonable;

(B) when such care or services are rendered in a medical emergency of such nature

that a prudent layperson reasonably expects that delay in seeking immediate

medical attention would be hazardous to life or health; and

(C) until—

(i) such time as the veteran can be transferred safely to a Department facility

or other Federal facility and such facility is capable of accepting such

transfer; or

(ii) such time as a Department facility or other Federal facility accepts such

transfer if—

(I) at the time the veteran could have been transferred safely to a

Department facility or other Federal facility, no Department facility

or other Federal facility agreed to accept such transfer; and

(II) the non-Department facility in which such medical care or

services was furnished made and documented reasonable attempts

to transfer the veteran to a Department facility or other Federal

facility.

38 U.S.C. 1725(f)(1).

When emergency treatment is at issue, the provision states that the Secretary "shall

reimburse a veteran . . . for the reasonable value of emergency treatment furnished the veteran in

a non-Department facility" if the veteran is "an active [VA] health-care participant" and is

"personally liable" for the emergency treatment. § 1725(a)(1), (b)(1). An active health-care

participant is a veteran who is "enrolled in the health care system established under section 1705(a)

of title 38 or received VA healthcare under chapter 17 within the 24-month period preceding the

emergency treatment.2 § 1725(b)(2).

B. Facts

Veteran Paul Van Dermark resides in Thailand. He served in the Navy from June 1963

until May 1967. Following service, he applied for disability compensation and was granted service

2

Under section 1705(a), the Secretary is directed to "establish and operate a system of annual patient

enrollment" following a specific prioritization list; the first category includes veterans with service-connected

disabilities rated 50% or greater, and the second category is made up of veterans with service-connected disabilities

rated 30% or 40%. 38 U.S.C. § 1705(a)(1)-(2).

4

connection for a right wrist and thumb disability, right shoulder capsulitis, bronchitis, and

hemorrhoids. His combined schedular evaluation eventually reached 90% and he was assigned a

total disability rating based on individual unemployability. He is not service connected for any

heart-related condition.

In May 2016, Mr. Van Dermark started experiencing cardiac symptoms and underwent

preliminary testing, which revealed an abdominal aortic aneurism. He contacted VA's FMP on

May 5 to request reimbursement for medical bills he had already incurred and to inquire about his

entitlement to reimbursement for a planned surgery. On May 14, he was informed that the FMP

could not reimburse him because his treatments were not related to a service-connected disability.

Mr. Van Dermark went ahead with his planned surgery and was hospitalized at Bangkok Hospital

from May 22 to 26, 2016. The following month, VA personnel from the FMP formally denied his

claim for reimbursement because the treatment he received was not related to a service-connected

disability. When he disagreed, VA issued a Statement of the Case in October 2016 citing 38 U.S.C.

§ 1724 and its implementing regulation, 38 C.F.R. § 17.35, as the reasons for denial. He appealed

to the Board, asserting that he was entitled to reimbursement under 38 U.S.C. § 1728(a)(3).

Meanwhile, Mr. Van Dermark had renewed cardiac problems in 2018 and sought VA

treatment. He flew to Guam on May 4, 2018, for testing and observation at the United States Naval

Hospital. He was then transferred to Tripler Army Medical Center in Hawaii on May 9 and

underwent a coronary catheterization two days later. He was scheduled for a coronary artery

bypass graft surgery on May 23 to replace his aortic valve. But he grew dissatisfied with the

nursing staff and the outpatient accommodations that VA had arranged and decided to return to

Thailand.

Upon returning, Mr. Van Dermark received medical care at the Bangkok Hospital on May

27, 2018. He again sought reimbursement from VA but was denied. He appealed this denial as

well.

The Board issued a decision on April 17, 2019, denying reimbursement for expenses from

both May 2016 and May 2018. First, the Board found that section 1724 was the controlling statute.

This section "governs hospital care, medical services and nursing home care abroad," and the term

"emergency medical treatment" as used in sections 1725 and 1728, the Board concluded, is

encompassed by "medical services." R. at 12 (internal quotation marks omitted). The Board

reasoned that the emergency treatment reimbursement provisions in sections 1725 and 1728 are

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constrained by section 1724's general prohibition against VA providing medical care abroad.

Under section 1724, Mr. Van Dermark's May 2016 and May 2018 cardiac treatments at Bangkok

Hospital could not be reimbursed by VA because they did not relate to a service-connected

condition or a non-service-connected condition associated with or aggravated by a service-

connected condition; nor was Mr. Van Dermark participating in a chapter 31 rehab program.3 The

Board did not determine whether any care received at the Bangkok Hospital constituted emergency

treatment. This appeal followed.

II. ANALYSIS

Mr. Van Dermark doesn't dispute the Board's analysis under section 1724. Instead, he

argues that section 1724 is inapplicable to his claim for reimbursement. He begins by observing

that both "furnish" and "reimburse" appear in sections 1725 and 1728 and reasons that these

distinct terms must be presumed to bear distinct meanings. Relying on the common definitions of

the words, he contends that "furnish" in the context of 1725 and 1728 requires the direct provision

of healthcare, while "reimburse" signifies payment for healthcare provided by another party. And

invoking the consistent meaning canon, Mr. Van Dermark asserts that "furnish" in section 1724(a)

should be understood to have the same meaning it does in sections 1725 and 1728. Thus, he reasons

that section 1724 does not affect his claim for reimbursement because VA was not asked to

"furnish" him care but to "reimburse" him for care. With section 1724's bar cleared, Mr. Van

Dermark believes that he is entitled to reimbursement for purportedly emergency treatment at the

Bangkok Hospital in 2016 and 2018 under either section 1728(a)(3) because of his TDIU rating or

section 1725(b) as an active VA healthcare participant personally liable for the non-VA treatment

he received.

In response, the Secretary argues that, when read as a whole, the statutory scheme

embedded within chapter 17 demonstrates a congressional intent only to provide or pay for medical

care outside of the United States through the FMP established by section 1724.

Before reaching the legal issues, however, the Court must address a factual argument

interposed by the Secretary. He contends that the medical care Mr. Van Dermark received from

3

But the Board did remand the issue of entitlement to reimbursement for March 2017 treatment at the

Bangkok Hospital for a head injury that Mr. Van Dermark asserted was precipitated by his right wrist disability, which

is service connected. Because remands are not final Board decisions, the Court has no jurisdiction over that matter.

See Sharp v. Shulkin, 29 Vet.App. 26, 28 n.1 (2017).

6

the Bangkok Hospital did not constitute emergency treatment as the phrase is defined in section

1725(f) and urges the Court to affirm on those grounds without going further. But whether specific

hospital care constitutes emergency treatment is a factual question, and the Board did not make

any findings on this issue in its decision. Outside certain circumstances not present here, the Court

cannot decide factual questions in the first instance. See Kyhn v. Shinseki, 716 F.3d 572, 575 & n.4

(Fed. Cir. 2013). Therefore, the following analysis will presume solely for argument's sake that

the care at issue in this case was emergency treatment.

This appeal turns on statutory interpretation. Statutory interpretation is a legal question,

and the Court reviews the Board's determinations on legal questions de novo. Casey v. Wilkie,

31 Vet.App. 260, 265 (2019). "In determining the meaning of a statutory provision, 'we look first

to its language, giving the words used their ordinary meaning.'" Id. (quoting Artis v. District of

Columbia, 138 S. Ct. 594, 603 (2018)). But context "inform[s] any statutory provision's plain

meaning." Id. Put otherwise: "The meaning of the phrase turns on its context." Caraco Pharm.

Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 413 (2012).

The first relevant term to tackle is "emergency treatment," the meaning of which is easy to

ascertain because Congress defined it as "medical care or services furnished" in specific

circumstances. 38 U.S.C. § 1725(f)(1). Section 1724(a)'s prohibition covers "hospital or

domiciliary care or medical services outside any State." The Board concluded that "emergency

treatment" as used in sections 1725 and 1728 "is encompassed by the term 'medical services' in

38 U.S.C. § 1724 and this statute applies to both emergency and non-emergency treatment abroad."

R. at 12. Mr. Van Dermark doesn't challenge this conclusion in his opening brief.

In his reply brief, the veteran asserts that "hospital and domiciliary care" as used in section

1724(a) "differs from 'emergency treatment'" as used in sections 1725 and 1728. Reply Br. at 10.

But this cursory statement isn’t enough to preserve a challenge on appeal to the Board's conclusion.

First, it doesn’t address the term "medical services," which is what the Board examined. Second,

despite the citations in the reply brief, the veteran's opening brief doesn't touch upon the issue at

all, and the Court deems challenges not raised in an opening brief forfeited. Fears v. Wilkie, 31

Vet.App. 308, 319 n.100 (2019). Finally, even in the reply brief, Mr. Van Dermark never offers

any argument to support an assertion that "emergency treatment" isn't covered by section 1724.

Therefore, we treat this issue as conceded on appeal.

7

The other two terms at issue here are "reimburse" and "furnish." Because neither is

specifically defined by Congress, the Court looks to their ordinary meaning at the time of

enactment. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). The word "reimburse" in

sections 1725 and 1728 meant (and still means) "to pay back (an equivalent for something taken,

lost, or expended)." WEBSTER'S NEW INTERNATIONAL DICTIONARY 1914 (3d ed. 1966); MERRIAM

WEBSTER'S COLLEGIATE DICTIONARY 1986 (10th ed. 1998). There is no real dispute between the

parties over the scope of this term.

The same cannot be said of "furnish." The term's appearance in section 1724 has its origin

in 1940 legislation. See Act of Oct. 17, 1940, ch. 893, § 4, 54 Stat. 1193, 1195. Back then "furnish"

was primarily understood to mean "[t]o provide for; to provide what is necessary for"; it also was

defined as "[t]o provide; supply; give; afford," specifically, "[t]o supply (a person or thing with

something)." WEBSTER'S NEW INTERNATIONAL DICTIONARY 1021 (2d ed. 1934); accord THE

POCKET OXFORD DICTIONARY 334 (7th ed. 1943). Thus, "furnish" has a potentially broad scope.

It can mean to directly provide something or to indirectly provide for it.

This is where context comes in. To ascertain the meaning of "furnish" in section 1724(a),

Mr. Van Dermark looks to sections 1725 and 1728. See Appellant's Br. at 19. In the context of

those provisions, he maintains, the word "furnish" must be understood to describe "only" the

situation where VA is "directly" providing medical care, whereas "reimburse"—which is used

alongside it—means to repay for medical care furnished by another. Id. at 16-17. Focusing

narrowly on sections 1725 and 1728, there is something to this. The distinction is clear when

Congress, for example, instructed the Secretary to "reimburse a veteran . . . for the reasonable

value of emergency treatment furnished the veteran in a non-Department facility." 38 U.S.C. §

1725(a) (emphasis added). Or when it permitted the Secretary, "in lieu of reimbursing [a] veteran,"

to "make payment of the reasonable value of emergency treatment directly—to the hospital or

other health facility furnishing the emergency treatment." 38 U.S.C. § 1728(b)(1) (emphasis

added). In these passages, the word "furnish" appears to exclude the concept of reimbursement.

But the fact that "furnish" may bear this narrow meaning in sections 1725 and 1728 does

not support giving it the same meaning elsewhere in chapter 17. For instance, under the Veterans

Community Care Program, the Secretary is instructed in certain circumstances to "furnish hospital

care, medical services, and extended care services to a covered veteran through health care

providers" like a "Federally-qualified health center" or the "Indian Health Service." 38 U.S.C.

8

§ 1703(c), (d)(1). Likewise, when hospital care or a medical service is not "feasibly available" in

a VA facility, the Secretary is authorized to "furnish such care or service to such covered individual

through an agreement under this section with an eligible entity or provider to provide" them.

38 U.S.C. § 1703A(a)(1)(A). Other examples abound. See, e.g., 38 U.S.C. §§ 1712A(e)(1),

1720C(b)(1), 1720I(c)(1), 1788(c). In these provisions, it's clear that Congress is using "furnish"

to mean, not the direct provision of healthcare by VA, but the assumption of the cost of healthcare

provided by non-VA entities.

Mr. Van Dermark admitted as much at oral argument. Departing somewhat from his initial

briefing position, he conceded that "furnish" as used in chapter 17 can mean the provision of

healthcare directly by VA or the provision of healthcare by VA via a contract with a third party.

But he still maintained that "furnish" cannot mean after-the-fact reimbursement of healthcare

provided by a third party. Oral Argument at 10:47-12:56.

But Congress "need not, and frequently does not, use the same term to mean precisely the

same thing in two different statutes, even when the statutes are enacted at about the same time."

Sec. Indus. Ass'n v. Bd. of Governors of Fed. Res. Sys., 468 U.S. 137, 174-75 (1984) (O'Connor,

J., dissenting). And as noted above, the relevant portions of chapter 17 were not enacted at the

same time but over the course of 50 years. The consistent-usage canon—which Mr. Van Dermark

implicitly invokes when he consults the way "furnish" is used in VA's other healthcare statutes—

"readily yields to context, especially when a statutory term is used throughout a statute and takes

on distinct characters in distinct statutory provisions." Return Mail, Inc. v. U.S. Postal Serv., 139

S. Ct. 1853, 1863 (2019) (quotation marks omitted); see also id. at 1865 ("The consistent-usage

canon breaks down where Congress uses the same word in a statute in multiple conflicting ways.").

Because Congress has not defined "furnish" and has used it to mean distinct things

throughout chapter 17, section 1724(a) itself provides the most important contextual clues to the

scope of "furnish" in that provision. Several considerations persuade us that subsection (a) uses

the term "furnish" in its broader sense of "provide for." Thus, the general ban on VA's furnishing

medical services abroad also bars reimbursement for medical services, save for the exceptions

specified in later subsections of 1724.

First, when the verb "furnish" was added to section 1724's precursor in 1940, the existing

law—a VA regulation—stated: "No person shall be entitled to receive domiciliary, medical, or

hospital care, including treatment, who resides outside of the continental limits of the United States

9

or its Territories or possessions." § 4, 54 Stat. at 1195. To this, Congress tacked on the following:

"Provided, That in the discretion of the Administrator of Veterans' Affairs necessary hospital care,

including medical treatment, may be furnished to veterans who are citizens of the United States

and who are temporarily sojourning or residing abroad, for disabilities due to war service in the

armed forces of the United States." Id. (emphasis added).

A Senate report on the amendment indicated that the exception in 1940 was created because

VA thought the existing law worked "a hardship on certain veterans suffering with service-

connected disabilities . . . and others who, from necessity rather than choice, are temporarily

residing abroad in the promotion for American interests." S. REP. NO. 76-2198, at 5-6 (1940).

Importantly for present purposes, the report stated that the existing law barring entitlement to

medical or hospital care abroad was "in consonance" with another VA regulation that "limit[ed]

the right to treatment primarily to that which can be afforded in Government facilities." Id. at 5.

With the amendment, Congress decided to "permit the hospitalization of such veterans who have

had war service and who are American citizens, when necessary for the relief of service-connected

disabilities." Id. at 6. In other words, although there were no VA (i.e., "Government") facilities

abroad to treat service-connected disabilities, VA could allow non-VA facilities in other countries

to furnish such treatment by picking up the tab. As Congress continued to recognize almost two

decades later, "American veterans residing in other countries, such as France, England, or

Germany, are not given medical care at VA expense for non-service-connected disabilities."

S. REP. NO. 85-1469, at 5 (1958) (emphasis added).

That "furnish" bore this broad meaning of indirect provision by VA is supported by the VA

Administrator's first report to Congress after the amendment discussed above took effect.4 The

Administrator noted that the

prohibition against the rendering of medical treatment for beneficiaries in foreign

countries . . . was repealed by a law authorizing such treatment for applicants

suffering from service connected conditions who could establish the fact that they

have American citizenship. By agreement, the Department of State undertook to

establish that required status before arranging, as heretofore, the treatment of such

citizens living in foreign countries (other than Canada, where direct arrangements

4

We take judicial notice of the statements and other facts put forth in the VA report because this is "extra-

record evidence . . . from sources whose accuracy cannot reasonably be questioned." Euzebio v. McDonough, 989 F.3d

1305, 1323 (Fed. Cir. 2021) (quotation marks omitted); see Dodd v. TVA, 770 F.2d 1038, 1039 n.1 (Fed. Cir. 1985)

(taking judicial notice of facts contained in the Tennessee Valley Authority's annual report to Congress); see also

Terrebonne v. Blackburn, 646 F.2d 997, 1000 n.4 (5th Cir. June 1981) (en banc) ("Absent some reason for mistrust,

courts have not hesitated to take judicial notice of agency records and reports.").

10

are made through a reciprocal agreement with the Department of Pensions and

National Health, Ottawa).

ANNUAL REPORT OF THE ADMINISTRATOR OF VETERANS AFFAIRS FOR THE FISCAL YEAR ENDED ON

JUNE 30, 1941, at 14 (1942) (emphasis added) ("1941 ANNUAL REPORT"). The report goes on to

say that the only application received during that fiscal year (from a veteran residing in Cuba) was

rejected "because the conditions for which he requested treatment had no relation to [his] former

military service." Id. The subject is concluded with the statement that political "conditions

obtaining in Europe at the present time make practically impossible the furnishing of medical

treatment to citizens of the United States who are residing in countries now occupied by German

military forces." Id. at 14-15. These passages reveal, as a matter of historical fact, that VA would

"furnish" medical treatment to veterans abroad by arranging for its provision through non-VA

entities.

Indeed, no other understanding seems possible since, at the time, VA did not have under

its control or propose development of a single facility outside the United States. See 1941 ANNUAL

REPORT at 107-109. And, although VA reported that more than $2 million in pension and

compensation benefits were paid to veterans in "United States possessions and foreign countries,"

id. at 91, the portion of the Administrator's report detailing the total number of veterans remaining

under VA hospital treatment at the end of fiscal year 1941 lists hospital locations only in the

continental United States and its then-"possessions": Alaska, the Canal Zone, Hawaii, the

Philippine Islands, and Puerto Rico, id. at 44-47. This silence is telling, especially when VA was

able to report the specific amounts of pension and compensation received by the precise numbers

of veterans or their dependents living in foreign countries. Id. at 98-101.

So, the historical evidence shows that, at the time that Congress permitted medical

treatment for service-connected disabilities to be "furnished" to veterans abroad, VA had no

healthcare infrastructure abroad to provide such treatment directly but would provide it as

appropriate by paying for it. Thus, when Congress in 1940 affirmed the general bar on the

furnishing of VA medical treatment to veterans outside the United States but permitted such

treatment to be furnished for service-connected disabilities, it was using the word "furnish" in the

indirect sense of the Agency arranging or paying for treatment provided by non-VA entities.

And, indeed, that is how the FMP is administered today. Per VA's policy manual: "FMP

may provide reimbursement for all foreign-provided, medically necessary services associated with

11

the treatment of adjudicated service-connected disabilities or any disability associated with and

held to be aggravating a service-connected condition, as well as care for Veterans participating in

a rehabilitation program." FOREIGN MEDICAL PROGRAM POLICY MANUAL § 1.01.III.B. Generally,

claims for "payment or reimbursement for expenses of medical care or services" must be filed

within two years following the date the care or service was rendered or the date of discharge from

inpatient hospitalization. Id. § 3.01.I.A. Or, as the Agency's brochure explaining the FMP's

mechanics to veterans advises more simply: "You may pay the provider and then file a claim by

submitting the bill, medical documentation and proof of payment to the FMP office. Or your

provider, if willing, may submit the bill and medical documentation to FMP for payment."5

With the proper contextual meaning of "furnish" in section 1724(a) established, we can put

it together with the other definitions noted above to understand the scope of the congressional

limitation on VA medical treatment abroad. When Congress directed in section 1724(a) that "the

Secretary shall not furnish hospital or domiciliary care or medical services outside any State," it

meant that the Secretary may not provide for or arrange veterans' "hospital or domiciliary care or

medical services" abroad. Since emergency treatment is a type of medical service, section 1724

necessarily orders the Secretary not to "provide for" emergency treatment abroad. Reimbursing for

the cost of emergency treatment, either by paying a veteran back or directly paying a non-VA

provider, is a way of providing for that treatment and, in fact, is generally the only way VA may

arrange for treatment in other countries. Thus, "reimburse" falls within the meaning of "furnish"

as used in section 1724(a). Under a plain reading of the relevant terms, section 1724 barred VA

from paying for Mr. Van Dermark's emergency cardiac treatment at Bangkok Hospital because he

was not service connected for any cardiac condition. (Nor was any such treatment needed in

connection with his participation in a chapter 31 rehab program.)

Nothing in section 1725 or 1728 persuades us that they meant to alter VA's healthcare

obligations outside the United States. Those provisions make no reference to medical services

abroad—and recall that emergency treatment is defined as a type of medical care or service.

38 U.S.C. § 1725(f)(1). "When a statute gives no clear indication of an extraterritorial application,

it has none." Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010). Rather, when Congress

wished to add exceptions to, or otherwise alter the scope of, the general bar on VA's furnishing of

5

https://www.va.gov/COMMUNITYCARE/docs/pubfiles/brochures/FMP_brochure.pdf.

12

medical services abroad, it did so in section 1724 itself, not elsewhere. We will not presume that

sections 1725 and 1728 were meant to apply in foreign countries like Thailand. See id. at 261

("Rather than guess anew in each case, we apply the presumption [against territoriality] in all cases,

preserving a stable background against which Congress can legislate with predictable effects.").

Relatedly, given the carefully delineated circumstances in section 1724 in which VA is

obliged to provide for veterans' medical care in foreign countries, we think Congress would have

made it clear if it intended to dramatically expand those circumstances to include "[a]ny disability"

if a veteran has TDIU, 38 U.S.C. § 1728(a)(3), or is "an active Department health-care participant,"

38 U.S.C. § 1725(b)(1). See Romag Fasteners, Inc. v. Fossil, Inc., 817 F.3d 782, 790 (Fed. Cir.

2016). But no intention on Congress's part to do so is apparent.

Likewise, the fact that courts generally presume that Congress intends a specific statute to

govern over more general ones supports our conclusion. See Arzio v. Shinseki, 602 F.3d 1343,

1347 (Fed. Cir. 2010). Section 1724, as noted above, is the only one in chapter 17 that addresses

the instances in which VA may provide for the medical care veterans receive abroad. Sections

1725 and 1728 make no reference to their territorial scope. Where Congress addresses VA's

extraterritorial healthcare responsibilities in one statute but says nothing about it in others, we think

it proper to conclude that the former takes precedence. Moreover, "Congress is presumed to

legislate against the backdrop of existing law." Procter & Gamble Co. v. Kraft Foods Global, Inc.,

549 F.3d 842, 848 (Fed. Cir. 2008). At the time section 1728 was enacted in 1973 and section 1725

in 1999, section 1724(a)'s general prohibition against the furnishing of medical services for non-

service-connected disabilities abroad had existed for several decades.

After considering the foregoing, the Court concludes that sections 1725 and 1728 permit

reimbursement for veterans who receive emergency treatment from domestic, non-VA healthcare

providers. In contrast, section 1724 covers when veterans abroad who receive medical care or

services—including emergency treatment—may receive reimbursement. As relevant here, because

Mr. Van Dermark was not seeking medical care in connection with a service-connected condition

or as part of a rehab program, the Board properly determined that his May 2016 and May 2018

treatments at Bangkok Hospital for cardiac issues—even if qualifying as emergency treatment—

could not, under section 1724, be reimbursed by VA.

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III. CONCLUSION

Accordingly, the Court AFFIRMS the April 17, 2019, Board decision.

GREENBERG, Judge, dissenting: The line between a plain language analysis and

interpreting ambiguity in a statute has never been more blurred. What the majority calls historical

context to support a plain language finding could very easily be described as reviewing legislative

history to uncover the meaning of an ambiguous term. With the utmost respect for my esteemed

colleagues, I have no alternative but to dissent.

It is well established that Congress created a scheme where veterans are a highly regarded

class of citizens. See Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (stating that longstanding

Congressional "solicitude [for veterans] is plainly reflected in the [Veterans Judicial Review Act

of 1988], as well as in subsequent laws that place a thumb on the scale in the veteran's favor in the

course of administrative and judicial review of VA decisions" (internal quotes omitted)). This

principle has been considered and enforced since the earliest days of the Republic. See Hayburn's

Case, 2 U.S. (2 Dall.) 409, 410 n. (1792).

As Justice Alito recognized, "We have long applied 'the canon that provisions for benefits

to members of the Armed Services are to be construed in the beneficiaries' favor.'" Henderson,

562 U.S. at 441 (quoting King v. St. Vincent's Hospital, 502 U.S. 215, 220-21 n. 9 (1991)); Brown

v. Gardner, 513 U.S. 115, 117-18 (1994) (noting "the rule that interpretive doubt is to be resolved

in the veteran's favor" cited in King). Not to be viewed merely as an afterthought,

the pro-veteran canon is a traditional tool of construction. It requires that

we discern the purpose of a veterans' benefit provision in the context of the

veterans' benefit scheme as a whole and ensure that the construction

effectuates, rather than frustrates, that remedial purpose: that benefits that

by law belong to the veteran go to the veteran.

Kisor v. McDonough, 995 F.3d 1316, 1327 (Fed. Cir. 2021) (Reyna, J., dissenting).

The Court should be interpreting statutes in a way that helps veterans, otherwise we

diminish and minimize the purpose and role of the entire statutory scheme created by Congress

specifically to favor veterans; in fact, the pro-veteran canon requires us to interpret statutes in this

context. Today's decision sets a dangerous precedent for interpretation of future veterans benefits

statutes. For the foregoing reasons, I dissent.

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