UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 14-1235
C A R O L Y N K. H O L L E , A P P E L L

A N T ,
V

. R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(De cided June 10, 2016)

Marshall E. Jack

son, Jr. , of Washington, D.C., wa s on the brief for the a ppellant. Leigh A. Bradley , Gene ral Counsel; Mary Ann Flynn , Chief C ounsel; Thomas E. Sullivan , Deputy Chief Counsel; and Ronen Z. M orris , Senior Appellate Attorney , all of Washington, D.C.,
wer e on the br ief for

the appe llee.

Be fore DAVI S, SC HOEL EN, and PI ETSCH, Judges

. SCHOEL EN, Judge : The pro se appellant, Caro l y n K. Holle, appea ls a Marc h 26, 2014, Boa rd of Veter ans' Appea ls (B oard) decision in which t h e Bo ard denied elig ibilit y for benef its throug h the Civil ian Hea lth and Medica l Prog ram of the Depa rtment of Veter an s Af

fa i rs (CHAMPVA) from Dec ember 1, 2004, throug h May 31, 2009. Record of Procee dings (R.) at 2-7. This ap p ea l i s t i m ely , and the Court has jurisdiction to revie w the Boa rd' s decision pursuant to 38 U.S.C. §§ 7252(a) a

nd 7266(a)

. This appea l prese nts two issues of first impression bef ore this Court; specific ally , (1) whether enrollment in Medica re Part B is a prec ondition to CHAMPVA elig ibilit y , and (2) whether the principle of equitable tolling applies to CHAMPVA' s Medica re Part B enrollment deadlines. For the foll owin g rea sons, the C ourt will aff irm the Board' s Marc h 2014 decision.I. BACKG ROUND

The appellant, Caroly

n K. Holle, is the spouse of veter an Norman L

. Holle. R. at 497. The
veter an served on ac tive duty in the U.S. Army from April 1962 to April 1965. R. at 915-16. An Augu s t 2002 rating decision found the veter an was entitled to a total disability rating based on individual unemploy ability beca use his post-t ra umatic stress disorder (PTSD) rende red him unemploy able. R. at 277-80. I n November 2002, Mrs. Holle applied for CHAMPVA benef its, indicating that she was born on J une 22, 1944, an d t h at h er h usband was rate d perma nently and totally disabled from a service -conne cted disabili ty

. R. at 873. I n Dec ember 2002, Mrs. Ho l l e rece ived a letter from the VA Health Administration Center (HAC) informing her that she was elig ible for CHAMP VA benef its and ex plaining how to apply

. R. at 872. The letter informed her t hat a new CHA M P VA handbook wa s enclosed a nd that a handbook supple ment would be mailed se para tely

. Id. I n May 2005, the Social Security Administration (SSA) awa rded Mrs. Holle disability benef its. R. at 849-54. An April 2009 corr espondenc e betwee n the HAC and Mrs. Holle indicates that Mrs. Hol l e was enrolled in Medica re Part A as of Decembe r 1, 2004, and in Medica re Part B as of J une 1, 2009. R. at 871

. I n a M ay 2 0 09 letter, the HAC notified Mrs. Holle t hat s he had "a b re ak or ineligible period of cover ag e." R. at 857. The letter explained that, pursuant to th e elig ibilit y criter ia outlined in the CHAMPVA handbook, Mrs. Holle was ineligible for CHAMPVA benef its during the p er i o d s h e wa s not enrolled in Medica re Part B. Id. Acc ording ly , the letter informed Mrs. Holle that she would rec eive an i n v oice for any CHAMPVA monetary benef its

rec eived dur ing the period of ine ligibility

. Id. After an inquiry from Mrs. Holle' s Congr essman, the HAC explained that when the SSA
g rante d Mrs. Holle disability compensa tion in May 2005, she wa s "aut omatically enrolled in Medica re Part A and Part B, eff ective Dec ember 2004; however, s h e t er m inated her Part B Coverag e." R. at 855. Be cause she did not enroll in Medica re Part B ag ain until J une 2009, she was ineligible for CHAMPVA fo r t h e p eriod while she was not enrolled in Medica re Part B, from Dec ember 1, 2004, throug h May 31, 2009. Id. The letter noted that the elig i bility criter ia wer e included in the CHAMPVA handbook that Mrs. Holle would have rec eived in 2002 and 2004. Id. I n J une 2009, Mrs. Holle submitt ed a statement asser ting that she had had a s t ro ke that

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

she "did not know that [she] sho u l d b e u sing Part B" and indicated that her husband' s PTSD
preve nted him from helping her. Id. I n September 2009, the HAC issued a Statement of the Case. R. at 829-34. I n October 2009, Mrs. Holle submitt ed another statement asking to appea l the CHAMPVA decision. R. at 826. Mrs. Holle ag ain asser t ed that her stroke has left her with "se vere memory problems" and that " [she] did not even know that [she] needed to ha ve Medic are ." Id. I n Aug ust 2010, Mr. and Mrs. Holle testi fied at a Boa rd hear ing. R. at 789-800. They testified that neither

was a war e that Mrs. Holle neede d to be enrolled in Medica re Part B to retain her elig ibilit y for CHAMPVA benef its and that beca

use of their "se vere head problems

. . . it never

once dawne d on [t hem]" that they neede d Medica re. R. at 793. The veter an stated that it would have been better for them to have had Medica re beca use it would have been easie r to find doctors and that they never intended to do any thing wrong
. Id. The veter an also indicated that they had broug ht to the hearing statements from doctors attesting t o the s ever ity o f t heir indi vidual mental di sabilities – in particular

that Mrs. Holle strug g les with short-term memory . R. at 791. I n the Marc h 2014 decision on appea l, the Boa rd noted that "the leg al criter ia in the case are cl ea r and the pertinent fac ts are not in dispute." R. at 6. The Boa rd noted that th e C HA M P VA criter ia require that Mrs. Holle be enrolled in Medica re Part B, and that from De ce m b er 1, 2004, throug h May 31, 2009, Mrs. Holle was not e nrolled in Me dicar e Part B. Id. The Boa rd expressed
sy mpathy for Mrs. Holle' s situation but conclude d that "the re is simply no leg al provision pursuant
t o which the Boa

rd m ay g rant the benef

its soug ht." Id. The Boar d also found t hat t h e n o t i ce an d assistance require ments of t he Ve tera ns Claims Assi stance Act (VCAA) are not applicable in this

case beca use the law and not the evidenc e is dispositi ve of the appellant' s elig ibilit y for CHAMPVA benef its. Id. There fore , the B oard de nied Mrs. Holle' s claim. Id. This appea l followed.

II. THE P ARTIES' ARG UMENTS Mrs. Holle arg

ues that althoug h she was not enrolled in Medica re Part B from Dec ember 1, 2004, throug h May 31, 2009, she is entitled to equitable tolling of "he r Dec ember 1, 2004, filing of her enrollment in Medica re Part B." Appellant' s Br ief (B r.) at 4. Mrs. Holle arg ues that she suffe rs

3from sever e mental and phy sical conditions that inhibited her ability to understand the require ments

for CHAMPVA elig ibilit y and proper ly enroll in Medica re Part B during the period at issue, despite the exercise of rea sonable diligenc e. Id. at 15. Consequently , s h e ar gu es that she is entitled to equitable tolling of

the Dec ember

1, 2004, filing date of her enrollment in Medica

re Par t B. Id. at 18. Alterna tively , she arg ues that the Boa rd failed to satisfy the duty to assist by not developing the

rec ord ade quately

reg arding her e ntitlement to equitable tolling. Id

. at 18-20. The Secre tary arg

ues that under 38 U. S

. C

. § 1 7 81, Mrs. Holle was require d to enroll in Medica re Part B to be elig ible for CHAMPVA benef its. Secre tary ' s Br

. at 5. The Secre tary asser ts that Mrs. Holle' s equitable toll ing argu ment is misplaced for three rea sons: (1) This case does not

conce rn t he abilit y to bring or prosecute an appea l; (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 statut o ry and
reg ulatory

prec ondition to t he re ceipt of CHAMPVA be nefits. Id. at 5.

III. ANALYSIS A. Statutory

I nterpre tation This case calls upon the Court to i n t erpr et the statutory provisions rela ted to CHAMPVA elig ibilit y under 38 U.S.C. § 1781. The Court revie ws VA' s interpre tation of statutes and reg ulations de novo. See Lane v. Principi , 339 F.3d 1331, 1339 (F ed. Cir. 2003) (" [I ]nt erpr etation of a statute

or reg ulation is a question of law

. . . .") ; Butts v. Brown , 5 Vet.App. 5 3 2 , 5 3 9 (1993) (en banc) (stating that the Court revie ws "que stions of law d e novo without any defe renc e to the [Board' s] conclusions of law" ). The Court must first analy ze the lang uag e of the authorizing s t at u t e and deter mine "whether Congr ess has direc tly spoken to the prec ise question at issue." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 837, 842 (1984). Statutory terms are interpre ted "' in the ir context and with a view to the ir place in the overa ll statutory scheme .' " Tyler

v. C a i n , 5 33 U.S. 656, 662 (2001) (quoting Davis v. Mich. Dep't of Treasury , 489 U.S. 803, 8 0 9 (1989))

. I f, employ ing the traditional tools of statutory construction, the Court finds that the "intent of Cong ress is clea

r, that is the end of

the matter; for

the [C] ourt, as we ll as the age ncy , must give eff ect to the unambig uously expressed intent of Congr ess." Id. at 842-43. On the other hand, if the Court conclu d es t h at "the statute is silent or ambig uous with respe ct to the specific issue, the

4question for the court is whether the ag ency ' s answer is based on a pe rmissible construction of the statute." Chevron , 467 U.S. at 843. Pursuant to 38 U.S.C. § 1781, VA is authorized to provide medical car e for the survivors and depende nts of cer

tain veter ans throug h the CHAMPVA prog ram. 38 U.S

. C

. § 1 7 8 1; 38 C.F.R. § 17.271 (2015). For this prog ram, elig ible persons include the spouse or child of a veter an who has been adjudicate d by VA as having a perma n en t an d t o t al service -conne cted disability

. Id. I n addition to this require ment, section 1781(d) (1)( A) re quires that [ a]n individual otherwise elig ible for medical car e under this section who i s al s o entitled to hospital insurance b en ef i t s under part A of the medicar e prog ram is elig ible for medic al ca

re under thi s section only if the individual is also enrolled in the supplementary medical insurance prog ram under part B of the medicar e prog ram. 38 U.S.C. § 1781(d)(1)( A). F urthermor e, sec tion 1781 (d)(1)( B) states: The limitation in subparag raph ( A) doe s not apply to an individual who – (i) has a ttained 65 y ear s of ag e as of J une 5, 2001; and (ii) is not e nrolled in the supplementary medical insurance prog ram under part B of the medica

re pr og ram a s of that date. 38 U.S.C. § 1781(d)(1)( B)

. The Court's analy sis beg ins with the lang uag e of the sp ecific provision at issue, 38 U.S.C. § 1781(d)( 1)(A)

. See Myore v. Nicholson , 4 8 9 F. 3 d 1207, 1211 (F ed. Cir. 2007) (" ' Statutory interpre tation beg i n s wi t h t h e lang uag e of the statute, the plain meaning of which we derive from its tex t and structure .' " ( quoting McEnte e v. M.S.P.B. , 404 F.3d 1320, 1328 ( Fe d. Cir. 2005)))

. Pursuant to this provision, an individual who satisfies the other require ments for t h e prog ram and is entitled to hospital insurance benef its under Medica

re Part A "is elig ible for medical

car e under [] section [1781(d)(1)(A )] only if the indi vidual is also enrolled in the supplementary medical insurance program under Part B of the medicare program. " 38 U.S.C. § 1781(d)( 1)(A) (empha sis a dded). Her e, the plain meaning of the word "only " as "sole ly " or "e x clusively " cre ates

a mandatory prer equisite to CHAMPVA elig ibilit y : Even if a claimant satisfies the other elig ibilit y criter ia, he or she is elig ible for CHA M P VA b en efits "only if" the claimant is also "e nrolled" in Medica re Part B. See M E R

R I A M -W E B S TE

R ' S C O L L E G I A T E D I C T I O

N A R Y 812 (10th ed. 1999) (def ining "only " as a single fac t or instance and nothing more; solely , exclusively ). Fur thermore , the plain

5meaning o f t h e p h rase "is also enrolled in" signifie s a curr ent and ong oing state of enrollment, in

essenc e providing an individual who is otherwise qualified for CHAMPVA benef its with an ong oing Medica re Part B e nrollment obliga tion. See O X F O R D E N G L I S H D I C TI O N

A R Y 276-77 (2d ed. 1989) (def ining " enroll" as " to incorpora te as a reg istered or

acknow ledg ed member ")

. The Court notes that section 1781 includes an exemption. Under section 1781(d)( 1)(B ), the Medica re Part B require ment in subpa rag raph A does not a

pply to a n individual who "ha s attained 65 y ear s of ag e as of J une 5, 2001," and "is not enrolled in the supplementary medical insurance
prog ram under part B of the medicar e prog ram as of that date." Mrs. Holle does not arg ue, and the fa ct s do not sug g est, that she qualifies for this exemption. There fore , the Court holds that t h e statutory lang uag e cre ates a cle ar r equire ment that a claimant be enrolled in Me dicar e Part B to be elig ible for CHAMPVA benef its unless that claimant satisfies one specific exemption. See Ventas, Inc. v. United States , 381 F.3d 1156, 1161 (F ed. Cir. 2004) (" Where Congr ess incl u d es cer tain exceptions in a statute, the maxi m expre ssio unius est exc lusio alterius presumes that those are the only exceptions Congr ess intended." ); McCray v. McG ee , 504 A.2d 1128, 1130 (D.C. 1 9 8 6 ) ( q u o ti n g 2A S U TH E R

L A N D , S TA TU TE S A

N D S TA TU TO R

Y C O N S TR

U C TIO N § 4 7.23 (4th ed. 1984) for the proposition that, "w hen a leg islature makes express mention of one thing, the exclusion of others is implied, beca

use ' there is an infere nce that all omissions should be understood as exclusions'" ); see also Haines v. W

est , 154 F.3d 1298, 1301-02 (F ed. Cir. 1998) (" A party 'ca nnot rely upon the
g ener ous spirit t h at suffuses the law g ener ally to overr ide the clea r meaning of a particula r provision.'" (quoting Smith v. Brown , 35 F.3d 1516, 1525 ( Fe d. Cir. 1994))). I n the dec ision on appeal, the Boa rd properly articula ted and applied the leg al standar d set forth in sections 1781(d)( 1)(A) and (B ). The Boa rd noted that in order to rec eive CHAMPVA benef its, Mrs. Holle neede d to be enrolled in Medica re Part B, but did not enroll until J une 1, 2009. R. at 6, 855. The Boa

rd further found that Mrs. Holle did not qualify for the exemption enumer ated in section 1781(d)( 1)(B ) beca use "she [onl y ] rea ched the ag e of 65 on J u n e 22, 2009." Id. Mrs. Hol le does not dispute either finding of fac t. The Court conclude s that the Bo ar d p ro p er l y interpre ted the statute re g arding Mrs. Holle' s CHAMPVA elig ibilit y
.

6B. Equitable Tolling

Equitable tolling is a tool used to g rant relief when a potent i al ap p el l an t fails to file suit within a statutory limit ations period. See 51 A M

. J U R

. 2 D Limitat io n o

f A ct i ons § 153 (2016) (" Equitable tolling

. . . allows a [party ] to initiate an actio n b ey o n d t h e statute of limit ations deadline

. . . .")

. As Mrs. Holle herse lf corr ectly points out, equitable tolling is appropr iate in case s wher e timely filing of a Notice of Appeal ( NOA ) is prec luded by circ umstances such as "( 1) mental illness r ender ing one incapa ble of handling one' s own aff airs or other extraordinary circ umstances bey ond one' s control, (2) relianc e on the incorre ct statement of a VA officia l, or (3) a misfiling at the
reg ional office or the Boa rd." Appellant' s Br

. at 4 (quoting Snee d v. S h i n s ek i , 737 F.3d 719, 723 (F ed. C i r. 2 0 1 3 )) ; see generally Hende rson v. Shinseki , 131 S. Ct. 1197, 1206 (2011); Bove v. Shinseki , 25 Vet.App. 136, 140 ( 2011) (pe r cur iam). Mrs. Holle acknow ledg es that she was not enrolled in Medica re Part B from Dec ember 2004 throug h May 2009. Rather, she sug gest s that althoug h she does not satisfy the Medica re Part B require ment, her extreme medical disabiliti es constitute an extraordinary circ umstance under which she should be allowe d to benef it from CHAMPVA. Specifica lly , she ar g ues that she is e ntitled to equitable toll i n g of t he "NOA" deadline "due to the ex traordina ry circ umstances she fac ed during the [r] eleva

nt [p] eriod and continues to fac e today ." Appellant' s Br

. at 15-16. She further arg ues that h er phy sical and mental disabiliti es war rant "a dditional time

. . . to file for Medica re P ar t B t o continue to have full CHAMPVA benef its." Id. at 6. Mrs. Holle' s arg ument that she is entitled to equitable tolling is misplaced. Mrs. Holle takes
g rea t pains to descr ibe her medical conditions – which are indeed sever e – and to explain how they
preve nted her from enrolling in Medica re Part B. Howeve r, althoug h Mrs. Holle char acte rizes her
reque st as a reque st to toll an NOA deadline, what Mrs. Holle asks the Court to toll is "he r Dec ember 1, 2004, filing [date] of her enrollment in Medica re Part B." Appellant' s Br

. at 4, 18. The Court cannot g rant the r equeste d relief

. I n other contexts, both the U.S. Court of Appea ls for the Fe dera l Circuit (F eder al Circuit) and this Court have ref

used to a pply equitable tolling principles to sta tutes and reg ulations tha t merely indicate when benefits may beg in. For example, in Andrews v. P r incipi , 351 F.3d 1134, 1137-38 (F ed. Cir. 2003), and R o driguez v. W est , 189 F.3d 1351, 1354-55 (F ed. Cir. 1999), the Fe dera l

7Circuit held that 38 U.S.C. § 5110, which g overns the eff ective date of the pay

ment of benef

its, does
not contain a statute of l imitations

. The Fede ral Ci rcuit unequivocally s t ated that "[section] 5110 does not contain a statute of limit ations, but mere ly indicates when benef its may beg in and provides for an ear lier date under cer tain limit ed circ umstances

. . . . Section 5110 addre sses the question of when bene fits beg in to acc rue, not whether a veter an is entitled to benef its at all." Andrews , 351 F.3d a t 1137-38. I n Edwards v. Peak

e , this Court relied on Andrews and Rodriguez to hold in othe r contexts that the period for submitt ing evidenc e is not subject to equitable tolling. 22 Vet.App. 29, 36 (2008), aff' d sub nom. Edwards v. Shinseki , 582 F.3d 1351 (F ed. Cir. 2009). Specifica lly , the Court held that the per iod for submitting additional evide nce in c onnection with a claim that has bee n denied, see 38 C.F.R. § 3.156(b) (2015), is not a statute of limit ations that may be equitably tolled, concluding that "[Mr. Edwar ds]

. . . [wa]s ' ask[ing] this [C ]ourt to waive the express statutory require ments for

an ear lier eff

ective date for [service connec tion] , which we ca n n o t do.' " Id

. at 36-37 (quoting Andrews , 351 F.3d a t 1138). I n this case , the statutes and reg ulations at issue in Andrews , Rodriguez , and Edwa r d s ar e i nstructive. L ike section 5110 and § 3.156(b), section 1781 mere ly indicates whe n C HA M P VA benef its may beg in – afte r an individual en ro l l s in Medica re Part B. Conspicuously absent from section 1781 is any lang uag e denotin g a s t at ute of limit ations that the Court can equitably toll. Acc ording ly , the Court holds that CHAMPVA' s enrollment require ments cannot be construed as a statute of limitations and, theref ore, a re not subjec t to equitable tolling. I n Dec ember 2004, afte r Mrs. Holle wa s d ee m ed elig ible for CHAMPVA benef its, she terminated her enrollment in Medica re Part B. Although Mrs. Holle provides a detailed discussion of equitable tolling prec edents, Mrs. Holle fails to explain how the principle of equitable tolling may be applied to her Dec ember 200 4 fi l i n g t erminating Medica re Part B. Simpl y put, there is no mecha nism permitting this Court to equitably toll CHAMPVA' s statutory enrollment require ments. See ge nerally Office of Pe rs. Mgmt. v. Richm ond , 496 U.S. 414 (1990). Finally , to the extent Mrs. Holle' s arg ument may be construed as seek in g e q u ita ble relief from this Court, the Court is unable to provide such a reme dy

. The Court sy mpathizes with Mrs. Holle' s circ umstances. Howeve r, this Court may not awa rd equitable relief

, no matter how compelling the

8fac ts. See Taylor v. W est , 11 Vet.App. 436, 440 (1998); Mof f i t t v. B rown , 10 Vet.App. 214, 225 (1997). The Court notes that the Secre tary , in appropr iate case s, may provide equitable relief

. See 38 U.S.C. § 5 0 3 ; Z i mi ck v. W est , 11 Vet.App. 45, 50-51 (1998); 38 C.F.R. § 2.7 (2015). The Secre tary ' s authority under section 503 is en t i re l y d i scre tionary and not revie wable by this Court. See Zimick , supra ; see also Smith v. Gobe r , 14 Vet.App. 227 ( 2000). C. Duty To Assist The Secre t ar y "sha ll make rea sonable eff orts to assist a claimant in obtaining evidenc e

nece ssary to substantiate the claimant' s claim for a b enef it under a law administered by the Secre tary ." 38 U.S.C. § 5103A(a )(1)

. Howeve r, the "[ t ] h e S ec re tary is not require d to provide assistance to a claimant under this section if no rea sonable possibili ty exis ts that such as s i s t an ce

wo u l d aid i n substantiating the claim." 38 U.S.C. § 5103A(a )(2)

. The Court revie ws the Bo ar d 's deter mination that VA satisfied its duty to assist unde r the "c lear ly err oneous" standard of revie w. Nolen v. Gober , 14 Vet.App. 183, 184 (2000). "A fac tual finding ' is "cl ea rl y err oneous" when althoug h there is evidenc e to support it, the reviewing court on the entire evidenc e is left wit h 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. G ypsum Co. , 333 U.S. 364, 395 (1948)). Mrs. Holle essentially arg ues that beca use the rec ord contains evidenc e that she has cog nitive impairments, VA was put on notice "tha t additional evidenc e is neede d to fully d evelop the fac ts reg arding equitable toll ing." Appellant' s Br

. at 20. The Boar d stated t hat "VA' s Gene ral Couns el has held that the notice and assistance require ments of the [VCAA] are not a pplicable wher e there is no leg al basis for the claim o r b ec au se undisputed fac ts rende r the claimant ineligible for the claimed benefit." R

. at 6 (citi ng VA Gen. Coun. Prec. 5-2004 (June 23, 2004)). As noted above, th er e is no leg al m echa

nism by which the Court can equitably toll CHAMPVA' s Medica re Part B enrollment require ment. Be cause there is no l egal method of g ranting Mrs. Holle the relief she seeks, no further development of the rec ord is require d. See 38 U.S.C. § 5103A(a )(2)

. Acc ording ly the Court finds that the Boa rd did not clea

rly err in its deter

mination that no assistance was require d.

9IV. CONCLUSION

After consideration of the appellant' s and the S ec retary ' s pleading s, and a revie w of the

rec ord, the B oard' s Marc h 26, 2014, decision is AFF I RMED.

10