NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7261

JOHN E. KAVANAUGH, Claimant-Appellant, v.

JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee. John E. Kavanaugh , of Temple City, California, pro se. Allison Kidd-Miller , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, fo r respondent-appellee. With her on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General; Jeanne E. Davidson , Director; and Martin F. Hockery, Jr. , Assistant Director. Of counsel on the brief was Kathleen Heaphy , Staff Attorney, Officer of G eneral Counsel, United States Department of Veterans Affair s, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Lawrence B. HagelNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-7261 JOHN E. KAVANAUGH, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Vetera ns Claims in 05-1731, Judge Lawrence B. Hagel.

__________________________ DECIDED: April 8, 2008

__________________________ Before LINN, Circuit Judge , CLEVENGER, Senior Circuit Judge , and PROST, Circuit Judge

. PER CURIAM. John E. Kavanaugh (“Kavanaugh”) appeals fr om a judgment of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a Board of Veterans’ Appeals (“Board”) decision that found Kavanaugh ineligible for paym ent or reimbursement of medical expenses incurred on April 27 and 28, 1997. Kavanaugh v. Nicholson , No. 05- 1731, slip op., 2007 WL 716029 (Vet. App. Feb. 21, 2007). Our jurisdictionally limited review of the Veterans Court’s judgm ent reveals no error. We therefore affirm

.I. BACKGROUND Kavanaugh served in the Unit ed States Army from 1958 to 1962. Prior to April 1997, Kavanaugh had received treatment for diabetes at Veterans Affairs (“VA”) medical facilities. On April 27, 1997, Ka vanaugh went into diabetic shock. An ambulance took him to a private medical facility, despite his request to be taken to a VA hospital. When Kavanaugh arrived at the priv ate medical facility, he explained to the staff that he would not be ab le to pay for treatment, and he again requested that he be transported to a VA hospital. The private facility instead admitted him and kept him overnight, then discharged him on the morning of April 28, with instru ctions to follow up at a VA hospital. Later that day, Ka vanaugh went to and was admitted to the VA Medical Center at Wadswort h, California, where he was treated on an in-patient basis for nine days. Following his discharge from the VA hospital, Kavanaugh received bills totaling $6,314.12 for his treatment at the private medical center . On July 14, 1997, he forwarded those bills to the VA and requested that the VA pay them. According to the Veterans Court, there was no evidence in t he record that Kavanaugh took any steps prior to July 14, 1997, to notify the VA of his intent to seek reimbursement for care that he received at the private facility, or to se ek VA authorization for his treatment at the private facility. The VA denied Kavanaugh’s request for pa yment or reimbursement, the Board affirmed the denial, and the Veterans Court a ffirmed the Board’s decision. Before the Veterans Court, Kavanaugh (who was at that time represented by counsel) made only one contention: that the Boar d erred by failing to consider whether Kavanaugh met the eligibility criteria for reim bursement of medical expens es under 35 U.S.C. §§ 1703 and

2007-7261 21710. He did not argue before the Vete rans Court that he was eligible for reimbursement for any other reason. II. DISCUSSION Our jurisdiction with respect to a decision of the Veterans Court is limited. 38 U.S.C. § 7292(a); D’Amico v. West , 209 F.3d 1322, 1325 (Fed. Cir. 2000). We “have exclusive jurisdiction to review and decide any challenge to the validit y of any statute or regulation or any interpretation thereof [b y the Veterans Court], and to interpret constitutional and statutory provisions, to the extent present ed and necessary to a decision.” 38 U.S.C. § 7292(c). We do not have jurisdiction to review factual determinations or the applicat ion of a law or regulati on to the facts, unless a constitutional issue is pres ented. 38 U.S.C. § 7292(d)(2); D’Amico , 209 F.3d at 1325. It is undisputed that this case raises no consti tutional issues. Our review is therefore limited to the validity and interpretation of the statutes and regulations relied on by the Veterans Court. In his informal brief in this pro se appeal, Kavanaugh answered “No” to the questions “Did the Court of Appeals for Veter ans Claims decision involve the validity or interpretation of a statute or regulation?” and “Did the Court of Appeals for Veterans Claims decide constitutional is sues?” Because these are the only subjects of our jurisdiction, Kavanaugh’s conc ession would ordinarily be disp ositive. However, he also argued in his informal brief that the “VA di d not understand the [i]ntention of Congress,” and he asked this court to “uphold the [i]n tention of [C]ongress.” Because pro se pleadings are to be liberally construed, Durr v. Nicholson , 400 F.3d 1375, 1380 (Fed. Cir. 2005), we treat Kavanaugh’s appeal as challenging the validity and interpretation of the regulations and statutes appl ied by the Veterans Court.

2007-7261 3Kavanaugh argued before the Ve terans Court that he was entitled to payment or reimbursement under 38 U.S.C. §§ 1703 and 1710. In rele vant part, § 1710(a)(2)(G) provides: The Secretary . . . shall furnish hospi tal care and medical services . . . which the Secretary determines to be needed to any veteran . . . who is unable to defray the expenses of neces sary care as determined under section 1722(a) of this title. Applying its own precedent, the Veterans Court held that, although a veteran may be entitled to receive hospital care and medical services in a VA hospital under § 1710, “that section does not contain any provision which would authorize the Secretary to provide reimbursement to a veteran for services rendered at a non-VA facility .” Kavanaugh , slip op. at 4, 2007 WL 716029, at *3 (emphasis added) (quoting Zimick v. West , 11 Vet. App. 45, 50 (1998)); see also Malone v. Gober , 10 Vet. App. 539, 543 (1997) (holding that Veterans Court lacked authorit y to create reimbursement remedy from language of § 1710). The plain language of § 1710 makes no refe rence to payment or reimbursement of medical expenses incurred at non-VA hospitals. “In constr uing a statute . . . we begin by inspecting its language for plain meaning. If the words are u nambiguous, no further inquiry is usually required.” Medrad, Inc. v. Tyco Healthcare Group LP , 466 F.3d 1047, 1051 (Fed. Cir. 2006) (alteration in the original) (quoting Camargo Correa Metais, S.A. v. United States , 200 F.3d 771, 773 (Fed. Cir. 1999) (c itation omitted)). Because the plain language of § 1710 unambiguously does not provide for reimbursement or payment of medical expenses incurred in non-VA hospitals, we agree with the Veterans Court that “even if Mr. Kavanaugh were qua lified to receive VA medical care under section 1710(a)(2)(G), applicatio n of that section alone woul d be insufficient to qualify

2007-7261 4Mr. Kavanaugh for reimbursement of his expenses for non-VA medical care.” Kavanaugh , slip op. at 4, 2007 WL 716029, at *3. Section 1703(a)(3) provides, in relevant part: When Department facilities are not capable of furnishing economical hospital care or medical services because of geographica l inaccessibility or are not capable of fu rnishing the care or services required, the Secretary, as authorized in section 1710 of this ti tle, may contract with non-Department facilities in order to furn ish . . . [h]ospital care or medical services for the treatment of medi cal emergencies which pose a serious threat to the life or health of a vete ran receiving medical services in a Department facility . . . . Unlike § 1710 (which provides that the Secr etary “shall” furnish care in designated circumstances), § 1703 relies on t he discretion of the Secretar y: “the Secretary . . . may contract with non-Department facilities.” 38 U.S.C. § 1703(a) (emphasis added). Pursuant to 38 U.S.C. § 501, the Se cretary has authority to promulgate regulations implementing laws carried out by the Department of Veterans Affairs, including “regulations with respect to the na ture and extent of proof and evidence and the method of taking and furnis hing them in order to establish the right to benefits” and “the forms of application by claimants under such laws.” One such regulation—38 C.F.R. § 17.54—requir es prior authorization for treatme nt at a non-VA hospital pursuant to § 1703(a): The admission of a veteran to a non- Department of Veterans Affairs hospital at Department of Veterans A ffairs expense must be authorized in advance. In the case of an emergency which existed at the time of admission, an authorization may be deem ed a prior authoriz ation if an application, whether formal or informa l, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf is dispatched to the Departm ent of Veterans Affairs . . . within 72 hours after the hour of admission . . . . 38 C.F.R. § 17.54(a).

2007-7261 52007-7261 6 Relying on § 17.54, the Veterans Cour t held that Kavanaugh wa s not entitled to reimbursement under § 1703, be cause “[n]othing in the record suggests, nor does Mr. Kavanaugh argue, that he sou ght authorization for his non-VA hospital treatment prior to or within 72 hours of t hat treatment nor that t he VA authorized it.” Kavanaugh , slip op. at 4, 2007 WL 716029, at *3. The Veterans Court’s interpretation of § 17.54 is plainly correct—the regulation ex pressly requires “prior” authorization, i.e., authorization made in advance or within 72 hours after admission to a non-VA hospital. The discretionary “may contract” languag e of 38 U.S.C. § 1703 necessarily affords the Secretary the discretion to require at least some form of VA authorization for private medical treatment, at some time ei ther prior to or after hospitalization. See 38 U.S.C. § 1703(a). We only addr ess the validity of a regulat ion “to the extent presented and necessary to a decision.” 38 U.S. C. § 7292(c). Here, Kavanaugh has presented no basis for us to conclude that the terms of § 17.54 or the Veterans Court’s interpretation thereof is arbitr ary or otherwise unreasonable. See Doe v. United States , 372 F.3d 1347, 1359 (Fed. Cir. 2 004) (“[T]he party contesting the regulation ‘bear[s] the burden of showing that the agency’s approach is arbitr ary or otherwise unreasonable.’” (quoting Koyo Seiko Co. v. United States , 258 F.3d 1340, 1347 (Fed. Cir. 2001))). Accordingly, the decision of the Veterans Court must be affirmed

. COSTS No costs.