UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-1500

WALTER L. FRITZ, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal From the Board of Veterans' Appeals

(Decided October 6, 2006 )

Walter L. Fritz, pro se.

Tim S. McClain, General Counsel;R. Randall Campbell, Assistant General Counsel;Edward

V. Cassidy, Jr., Deputy Assistant General Counsel; and Deborah A. Hoet, all of Washington, D.C.,

were on the brief for the appellee.

Before GREENE, Chief Judge, and DAVIS and SCHOELEN, Judges.

DAVIS, Judge: Pro se appellant Walter L. Fritz appeals from a June 3, 2004, Board of

Veterans' Appeals (Board) decision that denied him entitlement to payment or reimbursement of

unauthorized private medical expenses incurred on July 7, 2001. His appeal is timely and the Court

has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). 

The Board denied Mr. Fritz's claim under both 38 U.S.C. §§ 1728 and 1725. Section 1728

allows the Secretary to reimburse a veteran for certain medical expenses if the veteran was either

service connected for at least one disability at the time that treatment was sought or participating in

a vocational rehabilitation program. Under section 1725, the Secretary may reimburse a nonservice-connected veteran for emergency medical treatment if the veteran was an active Department

health-care participant and personally liable for the emergency medical treatment. On appeal, we

must determine whether enrolling for treatment with a VA medical center and scheduling a future

appointment constitutes receiving "care" under section 1725. Because the Board properly concluded
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that Mr. Fritz was ineligible for reimbursement under section 1728 and that he had not received

"care" under section 1725, we will affirm the Board's decision.

I. BACKGROUND

Mr. Fritz served honorably in the U.S. Air Force from September 1966 to May 1971. On

July 3, 2001, he traveled nearly 90 miles from his home in Enid, Oklahoma, to the Oklahoma City

VA medical center and enrolled for VA medical benefits as a non-service-connected applicant. At

that time, he was informed that the earliest available appointment to see a primary care physician

was July 16, 2001; he scheduled an appointment for that date. A few days later, in the early morning

hours of July 7, 2001, Mr. Fritz awoke with severe back and chest pains. Fearful that he might be

having a heart attack, Mr. Fritz and his wife went to the local emergency room at St. Mary's

Regional Medical Center (St. Mary's Hospital), where he was diagnosed with acute pancreatitis

caused by a blockage of the bile duct by gallstones. The veteran was subsequently transferred to the

Oklahoma City VA medical center, where his gallbladder was surgically removed. At the time of

his July 2001 emergency treatment, he was not service connected for any disabilities nor was he

participating in any VA rehabilitation programs. In addition, he had no private medical insurance

that covered his expenses in whole or in part.

In November 2001, the Oklahoma City VA medical center denied his application for

payment of expenses incurred from the July 2001 emergency medical treatment. In January 2002,

Mr. Fritz filed a Notice of Disagreement with respect to that determination. He was issued a

Statement of the Case in August 2002 explaining that he was ineligible to have his medical bills paid

under 38 U.S.C. § 1725 because he had not received medical care from VA in the 24 months

preceding emergency treatment. In October 2002, the veteran appealed to the Board. In the June

3, 2004, decision here on appeal, the Board denied his claim for payment or reimbursement of his

medical expenses after concluding that he failed to qualify for reimbursement under 38 U.S.C. §§

1728 and 1725.

On appeal, Mr. Fritz neither disputes any of the Board's factual determinations nor contends

that the Board failed to obtain relevant documents in his case. He also does not contend that the

Board applied the wrong law or regulations in reaching its decision. Although he does not advance

any reasons why the Board's decision was wrong, Mr. Fritz asks this Court to "authorize payment
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of the emergency room bill to St. Mary's Hospital." Appellant's Informal Brief (Br.) at 2. The

Secretary asserts that he sympathizes with the veteran, but notes that under sections 1728 and 1725,

Mr. Fritz is simply not eligible to have VA pay his July 2001 emergency medical expenses. Because

this Court is not a Court of equity, but rather a Court of law, the Secretary argues that we are unable

to award an equitable remedy to the appellant. Secretary's Br. at 6-7. 

II. ANALYSIS

Congress has authorized the Secretary to reimburse veterans for unauthorized emergency

medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Section

1728 applies only to veterans who were either service connected for at least one disability at the time

that they sought treatment or who were participants in a vocational rehabilitation program. See

38 U.S.C. § 1728(a)(2). Section 1725 applies to non-service-connected veterans who meet certain

eligibility requirements. See 38 U.S.C. § 1725(b). The Board denied Mr. Fritz's claim under both

statutory provisions.

The Court interprets a statute de novo. See Butts v. Brown, 5 Vet.App. 532, 539 (1993)

(en banc). As in all matters involving statutory interpretation, we begin our analysis with an

examination of the statutory language. See Howe v. Smith, 452 U.S. 473, 480 (1981); Reiter v.

Sonotone Corp., 422 U.S. 330, 337 (1979). "[W]e assume 'that the legislative purpose is expressed

by the ordinary meaning of the words used,'" Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)

(quoting Richards v. United States, 369 U.S. 1, 9 (1962)), and we "follow the cardinal rule that a

statute is to be read as a whole . . . since the meaning of statutory language, plain or not, depends

on context." King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991). "Absent a clearly expressed

legislative intention to the contrary, that language must ordinarily be regarded as conclusive."

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). "Where a statute's

language is plain, and its meaning clear, no room exists for construction. There is nothing to

construe." Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991) (citing Lewis v. United States,

92 U.S. 618 (1876)), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S.

115 (1994);see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)

("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.").
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A. 38 U.S.C. § 1728

In order to be eligible for payment of emergency medical expenses under section 1728, a

veteran must have been service connected for at least one disability at the time that treatment was

sought or have been participating in a vocational rehabilitation program. See 38 U.S.C.

§ 1728(a)(2); 38 C.F.R. § 17.120(a) (2006). The relevant portion of section 1728 provides that the

Secretary may reimburse veterans for emergency medical expenses when

such care or services were rendered to a veteran in need thereof (A) for an

adjudicated service-connected disability, (B) for a non-service-connected disability

associated with and held to be aggravating a service-connected disability, (C) for any

disability of a veteran who has a total disability permanent in nature from a serviceconnected disability, or (D) for any illness, injury, or dental condition in the case of

a veteran who (i) is a participant in a vocational rehabilitation program . . . , and (ii)

is medically determined to have been in need of care or treatment to make possible

such veteran's entrance into a course of training, or prevent interruption of a course

of training, or hasten the return to a course of training which was interrupted because

of such illness, injury, or dental condition. . . .

38 U.S.C. § 1728(a)(2). 

Here, the Board determined that when Mr. Fritz received emergency medical treatment at

St. Mary's Hospital in July 2001, he was neither service connected for any disabilities nor

participating in a vocational rehabilitation program. We cannot overturn the Board's factual findings

unless they are "clearly erroneous." 38 U.S.C. § 7261(a)(4); see Gilbert v. Derwinski, 1 Vet.App.

49, 52 (1990). "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)). Because the Court is not left with the definite

and firm conviction that the Board committed a mistake when it determined that Mr. Fritz was

neither service connected for any disabilities nor participating in a vocational rehabilitation program

when he received emergency medical treatment, we hold that the Board properly concluded that

Mr. Fritz was not eligible for reimbursement or payment of emergency medical expenses under

section 1728.

B. 38 U.S.C. § 1725

Section 1725 was introduced as part of the Millennium Health Care and Benefits Act, Pub.

L. No. 106-117, § 111, 113 Stat. 1545 (1999), and became effective on May 29, 2000. The statute
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bestows upon the Secretary the power to reimburse an "eligible," non-service-connected veteran "the

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

§ 1725(a). In lieu of reimbursing the veteran directly, the Secretary may make payment directly to

the hospital or health care provider that treated the veteran. 38 U.S.C. § 1725(a)(2)(A). Under the

statute, an eligible veteran is defined as "an individual who is an active Department health-care

participant who is personally liable for emergency treatment furnished [to] the veteran in a nonDepartment facility." 38 U.S.C. § 1725(b)(1). The Secretary concedes that the veteran is personally

liable for the July 2001 emergency treatment, but contends that Mr. Fritz is not an "active

Department health-care participant" under section 1725.

To be considered an "active Department health-care participant" at the time of the emergency

treatment, a veteran must be enrolled in the VA health care system and have received "care under

[chapter 17 of title 38, U.S. Code,] within the 24-month period preceding the furnishing of the

emergency treatment." 38 U.S.C. § 1725(b)(2)(B) (emphasis added);see 38 U.S.C. § 1725(b)(2)(A);

38 C.F.R. § 17.1002(e) (2006). The parties agree that Mr. Fritz was enrolled in the VA health care

system at the time he received emergency medical treatment. However, the Secretary contends that

the Board properly concluded that Mr. Fritz had not received medical "care" or "services" within

24 months of being treated at St. Mary's Hospital, and, thus, is ineligible to have his emergency

medical expenses reimbursed or paid. We agree with the Secretary that enrolling for treatment with

a VA medical center and scheduling an appointment does not constitute receiving "care" under

section 1725. See 38 U.S.C. § 1725(b)(2)(B); 38 C.F.R. § 17.1002(e). 

Congress did not offer a precise definition of "care" as it is used in section 1725. However,

based on the word's plain meaning, we are able to discern Congress's intent. Dorland's Illustrated

Medical Dictionary defines "care" as the "services rendered by members of the health professions

for the benefit of a patient." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 298 (30th ed. 2003)

(emphasis added). Moreover, in 38 U.S.C. § 1701, Congress defined "hospital care" as including

"medical services rendered in the course of the hospitalization of any veteran." 38 U.S.C.

§ 1701(5)(A)(i) (emphases added). Congress defined "domiciliary care" as including "necessary
The Court also notes that the regulation implementing section 1725 requires a veteran to 1

have "received medical services under authority of 38 U.S.C. chapter 17 within the 24-month period

preceding the furnishing of such emergency treatment." 38 C.F.R. § 17.1002(e) (emphasis added).

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medical services and travel and incidental expenses pursuant to the provisions of section 111 of this

title." 38 U.S.C. § 1701(7) (emphases added).1

Based on the ordinary meaning of "care" as set forth in Dorland's Illustrated Medical

Dictionary, it is clear that "care" as used in section 1725 is synonymous and, thus interchangeable,

with "medical services." In section 1701, Congress defined "medical services" as including

"medical examination[s], treatment, and rehabilitative services," surgical services, dental services,

optometric and podiatric services, and, among other things, preventative health services. 38 U.S.C.

§ 1701(6); see 38 C.F.R. § 17.30(a) (2006).

In the decision here on appeal, the Board found that Mr. Fritz had not received care in the

24 months preceding his July 2001 emergency medical treatment. As noted above, we cannot

overturn the Board's factual findings unless they are clearly erroneous. 38 U.S.C. § 7261(a)(4); see

Gilbert, 1 Vet.App. at 52. Based on the entire evidence in the record as well as our interpretation

of the meaning of "care" under section 1725, we are not left with a definite and firm conviction that

the Board committed a mistake when it concluded that Mr. Fritz had not received care in the 24

months preceding his emergency medical treatment. To the contrary, the record indicates that when

Mr. Fritz enrolled in the VA health-care plan, he did not undergo a medical examination or receive

treatment or medical services of any kind. Because Mr. Fritz did not receive care in the 24 months

preceding his emergency medical treatment, we hold that the Board properly concluded that he was

not eligible for reimbursement or payment of emergency medical expenses under section 1725.

Mr. Fritz asks this Court to grant him equitable relief by arguing that it was not his fault that

he did not see a VA primary care physician prior to receiving emergency treatment at St. Mary's

Hospital. He notes that he scheduled the first available appointment to see a VA primary care

physician when he enrolled for benefits, but required emergency medical treatment before the

scheduled appointment date. Although the Court sympathizes with Mr. Fritz's circumstances and

concedes that he is a victim of unfortunate timing, this "Court is not a court of equity and cannot

provide equitable relief." Moffitt v. Brown, 10 Vet.App. 214, 225 (1997). Only the Secretary can
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provide equitable relief to a claimant. See Andrews v. Principi, 16 Vet.App. 309, 317 (2002). Our

hands are bound by section 1725's language, which explicitly requires a veteran to have received

"care" within the preceding 24 months in order to be eligible for reimbursement or payment of

emergency treatment expenses. 38 U.S.C. § 1725(b)(2); see 38 C.F.R. § 17.1002(e). Because the

veteran did not receive such care, we can neither reverse the Board's decision, nor order equitable

relief.

III. CONCLUSION

Based on the foregoing, the June 3, 2004, Board decision is AFFIRMED.