[00:00:00] Speaker 01:
which is number 21, 2225.

[00:00:03] Speaker 01:
Vandermark versus McDonough.

[00:00:06] Speaker 01:
Mr. Saunders.

[00:00:10] Speaker 04:
Thank you, Your Honors, and may it please the Court.

[00:00:12] Speaker 04:
So properly interpreted, there isn't a conflict between the statutes at issue here.

[00:00:18] Speaker 04:
Congress used the term furnished when talking about the direct provision of care or advanced arrangements made by the VA.

[00:00:26] Speaker 04:
And in the command that the VA shall reimburse, it was talking about paying back a veteran for care that he's had to secure on his own.

[00:00:35] Speaker 03:
Does your view of furnishing in 1724 make it unlawful for the VA, under the B provisions, the exceptions to the ban on furnishing, to reimburse for non-previously arranged private care, which the regulations expressly provide for him?

[00:00:56] Speaker 04:
Right.

[00:00:57] Speaker 04:
There are two ways to look at it.

[00:00:59] Speaker 04:
Under the understanding that we have of furnish and appears to be understanding throughout.

[00:01:05] Speaker 04:
Title 17, it may be that the VA needs to be doing more proactively under that section to be furnishing under it.

[00:01:15] Speaker 04:
Now, there is a way to resolve this case without.

[00:01:19] Speaker 01:
I'm not understanding your answer.

[00:01:21] Speaker 01:
Are you saying that furnish in B does not allow reimbursement?

[00:01:27] Speaker 04:
The furnish in B, when you look at the way it's used throughout the statute, should be that they

[00:01:34] Speaker 04:
For what they're furnishing under the May furnish provision, they should be engaged in more proactive efforts to supply that gear.

[00:01:41] Speaker 01:
That's not answering the question.

[00:01:43] Speaker 01:
Furnish has the same meaning in A and B, right?

[00:01:47] Speaker 01:
Correct.

[00:01:47] Speaker 01:
OK.

[00:01:48] Speaker 01:
Does furnish in B then not allow reimbursement?

[00:01:53] Speaker 04:
Furnish in B would not allow pure reimbursement

[00:01:59] Speaker 04:
It would allow payment after it's made advance arrangements for care, something that would fall under the meaning of furnish.

[00:02:07] Speaker 01:
OK, that seems to me to ignore the 1987 legislative history.

[00:02:12] Speaker 01:
The statute was amended to remove the US citizenship requirement because of Canadians who had served in Vietnam.

[00:02:21] Speaker 01:
And the House report, in connection with that legislation, specifically says that the statute would allow reimbursement.

[00:02:29] Speaker 01:
Are you familiar with that?

[00:02:31] Speaker 04:
I'm familiar with the change that was made then.

[00:02:35] Speaker 04:
I think that regardless of what may be- Are you familiar with the House report?

[00:02:43] Speaker 04:
I'm not as familiar with the House report in the 1980s.

[00:02:47] Speaker 01:
It specifically talks about the statute would allow reimbursement of Canadian veterans.

[00:02:53] Speaker 04:
And you could have a situation

[00:02:56] Speaker 04:
I think in which you would still be furnishing the care if the VA is involved in advance in helping to find the doctor, in setting up that network, then the payment details, there might be flexibility in how they're done.

[00:03:12] Speaker 04:
but to have a situation where you're purely not doing it in advance.

[00:03:17] Speaker 03:
Now, the government's position- Just to be clear, so 38 CFR 17.35C, in your view, is overbought.

[00:03:27] Speaker 03:
Claims for payment or reimbursement for services not previously authorized by VA under this section are governed by

[00:03:36] Speaker 03:
17123 to 127, which are the procedures that govern the 1728 reimbursement process.

[00:03:43] Speaker 04:
Right, so that provision added in 2018, I think, is

[00:03:48] Speaker 04:
was being pushed by the VA's understanding of furnish being a broader term.

[00:03:56] Speaker 04:
It's being driven by its misreading of the statutory text.

[00:04:01] Speaker 03:
That's overbroad.

[00:04:01] Speaker 04:
Yes, it's overbroad to the extent it applies to individuals.

[00:04:04] Speaker 04:
Now, the statute's set up in such a way that I suppose you could call it reimbursement when the provider is directly submitting the bill, which is something that can be allowed as well.

[00:04:17] Speaker 01:
I think another thing to remember here is- But I'm still not understanding how you can get around the fact that furnish in B is specifically designed to include reimbursement.

[00:04:33] Speaker 01:
If furnish means reimbursement is possible, then the A provision, which bars furnishing, bars reimbursement,

[00:04:44] Speaker 01:
veterans abroad who are not getting treated for a service-connected disability.

[00:04:50] Speaker 04:
Well I think then there's before we get to sort of specific first general cannons the only other thing I would say on the face of

[00:04:58] Speaker 04:
of the statute there is for purposes of 1725 and 1728.

[00:05:04] Speaker 04:
Congress is clearly distinguishing in those provisions between reimbursing and furnishing.

[00:05:11] Speaker 04:
The premise of those provisions is the veteran needs to be reimbursed because the secretary has not furnished.

[00:05:19] Speaker 01:
So at least in 1724, furnish includes reimburse, you lose, right?

[00:05:27] Speaker 01:
No, not at all.

[00:05:29] Speaker 04:
If furnish includes reimburse in 1724, then we have conflicting statutes.

[00:05:38] Speaker 04:
We have a shall not command, and we have a shall command.

[00:05:43] Speaker 04:
And the way that that would be reconciled is to look traditionally at the more specific provision governing over the general.

[00:05:50] Speaker 03:
And here, the emergency treatment.

[00:05:53] Speaker 03:
But the problem is that there are two different ways of looking, at least two different ways of looking at which is more specific, the border way and the type of service way.

[00:06:02] Speaker 03:
And so which one?

[00:06:03] Speaker 04:
Well, and what's being done.

[00:06:05] Speaker 04:
I mean, I think there are actually three dimensions.

[00:06:07] Speaker 04:
So one is the type of service, emergency treatment, the shall reimbursed for that, clearly a subset of medical services.

[00:06:17] Speaker 04:
So that's more specific.

[00:06:18] Speaker 03:
Also, to get to the conflict, foreign is clearly a subset of no matter where.

[00:06:25] Speaker 04:
Well.

[00:06:27] Speaker 04:
I don't think it's quite right to say that 1725 and 1728 are saying no matter where.

[00:06:33] Speaker 04:
Because remember, the definition of emergency treatment only applies when the department.

[00:06:39] Speaker 03:
OK, no matter where, but without regard to geography in any way.

[00:06:44] Speaker 04:
Well, but they only apply when the department or other federal facility is not reasonably available.

[00:06:53] Speaker 04:
I think when you talk about which is more specific or which is more general, 1724 is painting, yes, with this very broad geographic brush.

[00:07:03] Speaker 04:
For 1725 and 1728, yes, those are covering areas in the US too, but it's narrowly sliced.

[00:07:11] Speaker 04:
It looks more like a scalpel.

[00:07:13] Speaker 04:
If you're within a certain proximity of one of those federal facilities, and there are

[00:07:20] Speaker 04:
medical centers in the US and many more outpatient clinics.

[00:07:24] Speaker 04:
If you're in proximity to one of those, you're not going to be entitled to reimbursement there.

[00:07:28] Speaker 04:
So I think in one provision, geographically, we have the broad brush.

[00:07:33] Speaker 04:
And the other provision, we have the scalpel.

[00:07:35] Speaker 04:
If you did a map of where you could be reimbursed, it's going to look more like Swiss cheese, all sorts of

[00:07:41] Speaker 04:
Well, so I reject the premise that one is more general or specific with respect to geography.

[00:07:49] Speaker 04:
I think at least is a closer call.

[00:07:51] Speaker 04:
And I would submit the degree of specificity there makes ours more specific.

[00:07:56] Speaker 04:
And then here's the other dimension.

[00:07:58] Speaker 04:
The entire premise of the government's argument, the only way you get to a conflict is by saying that furnish is the broader category.

[00:08:08] Speaker 04:
that subsumes reimbursement.

[00:08:10] Speaker 04:
So that's another dimension on which 1725 and 1728 are the narrower provisions.

[00:08:16] Speaker 04:
So I think on those three dimensions, you have two that are absolutely unequivocally, we are the narrower provisions.

[00:08:23] Speaker 04:
And then the third one for geography, I would say we are at least the more specific provision in terms of the way it's defined.

[00:08:31] Speaker 03:
Can I ask you another question about

[00:08:34] Speaker 03:
in some sense, legislative history, or in one sense, maybe statutory history.

[00:08:40] Speaker 03:
So as I understand it, in 1968, I think it was, VA adopted a regulation that provided for reimbursement of non-previously arranged emergency services.

[00:08:56] Speaker 03:
At the time, the statute

[00:08:59] Speaker 03:
again, my understanding, provided no possible authority for that regulation except a furnished statute, the 1958, basically, predecessor of this.

[00:09:16] Speaker 03:
And then Congress, in 1973, enacts the first emergency provision.

[00:09:23] Speaker 03:
That's, I guess, 1728, is it?

[00:09:26] Speaker 03:
And says we're expanding it some.

[00:09:35] Speaker 03:
By and large, it doesn't say we're giving a statutory basis that didn't previously exist.

[00:09:41] Speaker 03:
So why wouldn't we read that somewhat in the vein of the recent George against McDonough case to say, when the VA first enacted a reimbursement provision by regulation, it was doing so under authority of a furnished provision, so thought that furnished covered reimbursement.

[00:10:03] Speaker 03:
And then Congress in 1973 just codified that, plus expanded it to certain non-service connected things.

[00:10:12] Speaker 04:
I don't remember the VA in 1968 in that regulation.

[00:10:19] Speaker 04:
saying that that was the source of its authority.

[00:10:22] Speaker 04:
I think this sort of chain for me breaks at the beginning, which is the VA was doing it.

[00:10:28] Speaker 03:
I don't think, as I read the then existing statutes, the 638 kind of series, I was not able to find anything, any authorization that could possibly apply except a furnished provision.

[00:10:44] Speaker 04:
And I think, unfortunately, it may beg the question as to what the basis for its authority was or whether it was pushing the envelope.

[00:10:56] Speaker 04:
with that regulation.

[00:10:58] Speaker 04:
And so given that, I think it becomes attenuated in terms of looking for something in the legislative history of the 1973 act to require Congress to specifically say, we're filling in.

[00:11:16] Speaker 04:
the basis here.

[00:11:18] Speaker 04:
I don't think this would be the first time that an agency might have gotten a little bit out over its skis and had Congress come in and maybe be silent on the question.

[00:11:27] Speaker 04:
So I just think that as between the plain text and the distinction Congress is making in those provisions itself, 1725 and 1728, between furnishing and reimbursing

[00:11:45] Speaker 04:
And the way we see furnish being used in the other sections of Title 17, I think it would be a real stretch to say Congress is endorsing the furnish.

[00:11:59] Speaker 03:
or general depends on reading in 1725 and 1728 the absence of any reference to foreign versus domestic as an affirmative command to reach beyond US borders.

[00:12:19] Speaker 03:
As opposed to, it's silent on the subject, so the right way to accommodate a very clear ban about the borders with a provision that says nothing about borders is follow the ban about the borders.

[00:12:33] Speaker 04:
Well, I think two responses, John.

[00:12:36] Speaker 04:
First, the operative command in 1725 and 1728 is domestically focused.

[00:12:44] Speaker 04:
The shall reimburse command.

[00:12:47] Speaker 04:
isn't about regulating the primary conduct or what happens in the doctor's office.

[00:12:52] Speaker 04:
It is a command to a US official sitting in the United States.

[00:12:57] Speaker 04:
And then geographically, it doesn't specifically mention borders.

[00:13:02] Speaker 04:
But again, the clear concern animating

[00:13:06] Speaker 04:
was Congress's concern that a veteran who's too far away from a medical facility and has a medical emergency.

[00:13:12] Speaker 03:
Can you suggest to me, I'm just thinking aloud at the moment, but suggest to me an argument that I don't remember you making that actually when payment is made from the United States Treasury down on

[00:13:31] Speaker 03:
I don't know, 14th Street or I guess right over here, that that is not actually furnishing hospital or domiciliary care or medical services outside the United States.

[00:13:45] Speaker 03:
In fact, maybe it's not because whatever furnishing is going on is going on inside the United States.

[00:13:56] Speaker 04:
I think that with respect to the first questions about the foreign medical program, I mean, those would also be, to the extent it's being operated as a reimbursement system, I think that what you've described is exactly right.

[00:14:12] Speaker 04:
The actual conduct of reimbursement

[00:14:15] Speaker 04:
happens in the United States, because we think re-furnish is being sort of more directly involved in the provisions.

[00:14:23] Speaker 04:
I think that is more naturally read as something that would be outside the United States.

[00:14:29] Speaker 01:
So I'm puzzled as to how these emergency provisions could be interpreted to apply outside the United States, because the assumption seems to be

[00:14:40] Speaker 01:
that it's dealing with providing for emergency service for people who would otherwise be entitled to regular service, correct?

[00:14:48] Speaker 01:
Correct.

[00:14:49] Speaker 01:
And if the people are not entitled to regular service by virtue of 1724, then why would Congress intend to have them get emergency service when they couldn't get regular service?

[00:15:04] Speaker 04:
Well, I'll back up.

[00:15:06] Speaker 04:
When we say entitled to regular service, I mean they're enrolled in the program and they had received health care within the last 24 months.

[00:15:13] Speaker 04:
Those are the eligibility criteria.

[00:15:15] Speaker 01:
No, but the whole purpose of the emergency service provisions, as I thought you agreed, was to provide emergency service to people who would otherwise be entitled to regular health care.

[00:15:27] Speaker 01:
And the people we're talking about, by virtue of 1724, are not entitled to regular health care because they're outside the United States.

[00:15:37] Speaker 04:
Well, I mean, the nature of the health care, the nature of the emergency is what was allowed me to say.

[00:15:43] Speaker 04:
So 1725, 1728, imagine there's a veteran who lives in the United States and goes on a trip overseas to visit Vietnam or Guadalcanal and has a heart attack while traveling.

[00:15:55] Speaker 04:
Those will be covered.

[00:15:56] Speaker 04:
1724 was originally designed, it's trying to keep the US from having that sort of permanent footprint.

[00:16:04] Speaker 04:
They didn't want to be building the hospitals overseas.

[00:16:07] Speaker 04:
That may also ensnare someone.

[00:16:09] Speaker 04:
If someone is permanently moved overseas and is entirely disconnected from the US system

[00:16:16] Speaker 04:
isn't enrolled in the health care system here, hasn't received health care through the US system in the last 24 months, then that person's not going to be eligible.

[00:16:24] Speaker 04:
So what we're talking about is because of the eligibility criteria of 1725 and 1728.

[00:16:29] Speaker 04:
Correct.

[00:16:30] Speaker 04:
And so what we're talking about is really veterans who have a presence in the US and may be moving back and forth.

[00:16:37] Speaker 04:
I mean, Mr. Vandermark lives in Florida now.

[00:16:39] Speaker 04:
He was in Thailand for a period of time because his wife is from Thailand.

[00:16:43] Speaker 04:
But they moved back to Florida.

[00:16:45] Speaker 04:
He had lived in the United States before that.

[00:16:47] Speaker 04:
So he wasn't someone who had sort of severed his connection from the US medical.

[00:16:52] Speaker 04:
And interpreting it that way would leave the person who's truly just absolutely present in the US, always receives health care here, travels temporarily overseas, and has a heart attack, and suddenly they're bankrupt because they can't afford it.

[00:17:09] Speaker 01:
Congress was trying to avoid that.

[00:17:12] Speaker 01:
sailors in the United States and travels abroad and doesn't have an emergency.

[00:17:17] Speaker 01:
We're not talking about an emergency situation.

[00:17:20] Speaker 01:
That person cannot receive medical services at US government expense, right?

[00:17:28] Speaker 04:
Through the VA, no.

[00:17:31] Speaker 04:
But if it's not an emergency, that person, I mean, depending on the nature of the treatment, that person may have a chance to travel to the United States, that the person who's having the emergency

[00:17:42] Speaker 04:
doesn't.

[00:17:43] Speaker 04:
In other words, if you're overseas and you get diagnosed with cancer and you're facing a very expensive course of treatment, you can choose to come home to the United States at that point.

[00:17:51] Speaker 01:
We agree that that person wouldn't be able to get US government funded health care abroad.

[00:17:58] Speaker 04:
The only reason I'm disagreeing with the US government funded is because if you're under TRICARE from the VA, they wouldn't receive the VA funded

[00:18:07] Speaker 04:
health care abroad for a non-emergency, where there may be more opportunity to get back to the United States, but in an emergency where it's of such urgency that a reasonable person couldn't get to a federal facility, then they didn't want that person to be left in the colerge.

[00:18:26] Speaker 04:
And I stand well into my rebuttal time.

[00:18:28] Speaker 04:
Any further questions?

[00:18:40] Speaker 00:
May I please the court?

[00:18:41] Speaker 00:
Congress instructed the Secretary of Veterans Affairs not to furnish Medicare abroad for non-service-connected disabilities.

[00:18:47] Speaker 00:
This prohibition, which was enacted at Section 1724, prevented the Secretary from reimbursing Mr. Vanden Mark for medical expenses he incurred during treatment at a hospital in Thailand.

[00:18:58] Speaker 00:
The Veterans Court's decision was correct, and it should be affirmed.

[00:19:02] Speaker 00:
So I'll begin with the language of 1724.

[00:19:05] Speaker 03:
So it seems to me

[00:19:11] Speaker 03:
What you just said is not quite a complete argument.

[00:19:16] Speaker 03:
You also have to be saying that 1725 and 1728 don't override a 1724A ban, having established that that ban does apply here.

[00:19:29] Speaker 00:
That's right, Your Honor.

[00:19:29] Speaker 00:
And I'll make both parts of the argument.

[00:19:33] Speaker 00:
But the Veterans Court's decision encompass both pieces of that.

[00:19:36] Speaker 00:
And both pieces, in our view, are correct.

[00:19:38] Speaker 00:
So I'll begin with the 1724 analysis and then I'll turn to the relationship between 1724 and 1725 and 1728.

[00:19:48] Speaker 00:
So as the panel's question suggested, VA is of the view that 1724A and 1724B are parallel provisions.

[00:19:57] Speaker 00:
They both use the word furnish.

[00:19:59] Speaker 00:
That word furnish in both provisions goes back to the same route, which is a 1940 statute that the Veterans Court discussed that the current 1724A is derived from.

[00:20:12] Speaker 00:
And the VA's understanding of furnish is that it encompasses reimbursement, both in A and both and in B. And as the court noted, the foreign medical program is- It might have been helpful if you'd looked at the 1987 legislative history about the Canadian citizens.

[00:20:31] Speaker 00:
Understood, Your Honor.

[00:20:33] Speaker 00:
Appreciate that point, which I think does support our view.

[00:20:38] Speaker 00:
So there's the history dating back to 1940 where you have a statute that says claimants will not be entitled to receive in substance benefits abroad for not

[00:20:55] Speaker 00:
period, and then the proviso, which is that for service-connected disabilities, the administrator can furnish care abroad.

[00:21:05] Speaker 00:
So in 1940, you have this prohibition.

[00:21:09] Speaker 00:
And in our view, that prohibition was carried forward in the late 1950s statutes and carries forward to this day.

[00:21:16] Speaker 00:
There's no indication that Congress ever intended to alter the meaning of

[00:21:22] Speaker 03:
Are you suggesting that the 1940 provision is actually somehow textually clear about encompassing near-monetary payments?

[00:21:36] Speaker 00:
So the 1940 provision says no person shall be entitled to receive domiciliary medical or hospital care, including treatment who resides outside the continental limits.

[00:21:48] Speaker 03:
And that's just care, including treatment, which by itself

[00:21:51] Speaker 03:
suggests not just payment, but at least it doesn't.

[00:21:56] Speaker 03:
So what part of it makes clear that this is actually contemplating payment as part of the subject of the sentence?

[00:22:05] Speaker 00:
The verb receive, the emphasis on what the claimant receives rather than... Receiving care.

[00:22:11] Speaker 03:
Receiving money is not receiving care.

[00:22:13] Speaker 00:
Right.

[00:22:13] Speaker 00:
So in our view, the administrator would not have been permitted to make payments for that care under this statute.

[00:22:20] Speaker 00:
And that carried forward into subsequent statutes.

[00:22:24] Speaker 03:
I'm sorry.

[00:22:25] Speaker 03:
I guess my question is, why do you think it is clear under this statute

[00:22:29] Speaker 03:
that VA would not have been entitled to pay for care.

[00:22:37] Speaker 00:
So if no person shall be entitled to receive care, that would mean that if the person, in our view, receives

[00:22:45] Speaker 00:
care from a third-party service provider, the VA would not be able to use treasury funds to pay for that care.

[00:22:54] Speaker 00:
So we understand the 1940 statute to bar reimbursement, just as the late 1950s statutes do.

[00:23:02] Speaker 00:
And then the proviso is created, and this is where the word furnish comes in, that the administrator may furnish or the care may be furnished to veterans.

[00:23:14] Speaker 00:
So the proviso is the first introduction of the word furnish, and in our view that word furnish

[00:23:20] Speaker 00:
is then imported into what's now 1724A in the late 1950s with those revisions.

[00:23:29] Speaker 00:
And there's no reason to think that the two provisions have a different meaning.

[00:23:34] Speaker 02:
Doesn't furnish, though, imply some degree of active effort to accomplish the designated end, as the Black's Law Dictionary suggests?

[00:23:42] Speaker 00:
So in the context of administrative law, even if the premise is correct, there absolutely is active effort on the part of the secretary.

[00:23:52] Speaker 00:
And you can see that by looking at the foreign medical program, which implements 1724b furnish.

[00:24:00] Speaker 00:
So before making any reimbursement payments under the foreign medical program,

[00:24:06] Speaker 00:
The secretary had to enact regulation, he had to set up this program, he had to allocate employees to deal with it.

[00:24:15] Speaker 02:
The secretary didn't have to do anything with respect to whoever is actually providing the care to a veteran like Mr. Vandermark when he happens to be in Thailand, is that correct?

[00:24:26] Speaker 00:
Right.

[00:24:27] Speaker 00:
But when Congress is using the word furnish in an instruction to the secretary, the most reasonable way of understanding that is talking about, is saying to the secretary, this is the type of program you're allowed to set up.

[00:24:41] Speaker 00:
This is the type of program you're not allowed to set up.

[00:24:44] Speaker 00:
So furnished care means this is what you can spend money on.

[00:24:47] Speaker 00:
This is what you cannot spend money on.

[00:24:50] Speaker 01:
They're kind of at a contemplation at the time there would be VA facilities.

[00:24:54] Speaker 01:
that were providing the care.

[00:24:56] Speaker 01:
There were no VA facilities abroad.

[00:24:58] Speaker 01:
There was no contemplation that there would be any VA facilities abroad.

[00:25:02] Speaker 01:
The whole purpose of this statute, or the major purpose of the statute, was to give medical benefits to veterans with service-connected disabilities.

[00:25:13] Speaker 01:
And realistically, the only way that could happen

[00:25:18] Speaker 01:
for the VA to pay somebody to provide the services are either in advance or by reimbursement.

[00:25:28] Speaker 00:
I agree with that.

[00:25:30] Speaker 00:
Congress wasn't thinking about direct provision of care abroad in the late 1950s.

[00:25:34] Speaker 00:
They were thinking about VA spending money on care.

[00:25:37] Speaker 00:
And that's how we interpret section 1724.

[00:25:41] Speaker 03:
What's the best evidence for that?

[00:25:44] Speaker 03:
I mean, I understand that that picture makes it kind of intuitive.

[00:25:49] Speaker 03:
sense.

[00:25:51] Speaker 03:
Where does one get that from?

[00:25:53] Speaker 00:
One point is the 1940 statute that uses the word furnish.

[00:26:00] Speaker 00:
The reason that the proviso was introduced into the 1940 statute was to mitigate the effect of the prohibition.

[00:26:11] Speaker 00:
So it was saying to the administrator, you cannot provide care abroad.

[00:26:16] Speaker 00:
or you can't furnish care abroad, but you can furnish care for service-connected disabilities.

[00:26:23] Speaker 00:
So there's no reason to think that Congress would have had a narrow idea of what furnish meant in the 1940s when it was trying to do something that was beneficial to veterans.

[00:26:33] Speaker 00:
And from our perspective, that furnish was then carried forward into the late 1950s statute.

[00:26:42] Speaker 00:
And just more generally,

[00:26:46] Speaker 00:
a broader conception of a furnish that we're advocating for.

[00:26:50] Speaker 00:
The contrary view would be to say that Congress was permitting reimbursement, but it was prohibiting direct provision of care and entering into contracts in advance.

[00:27:05] Speaker 00:
But it doesn't really make sense that Congress would say that the better methods of providing care from the perspective of controlling costs and ensuring that care is provided effectively.

[00:27:21] Speaker 03:
maybe a paragraph on this in the blue brief.

[00:27:24] Speaker 03:
But the idea, I think, that the blue brief is suggesting that there would be reasons not to set up federal government facilities in Thailand, say, that wouldn't extend

[00:27:42] Speaker 03:
to refusing to pay for a veteran exercising freedom to travel the way anybody else could, finding himself in Thailand with a need for emergency care and the government pays money for it, not whatever the

[00:28:05] Speaker 03:
tie doctor charges because the 1725 and 1728 give the VA plenty of authority to pay nothing more than is reasonable but you don't they don't the government wouldn't open itself to

[00:28:21] Speaker 03:
There's not a lot of concreteness about this.

[00:28:23] Speaker 03:
I don't know whether it's medical malpractice liability, whether it's providing abortions in a country that doesn't allow abortions.

[00:28:32] Speaker 03:
This was not elaborated in the blue brief.

[00:28:35] Speaker 03:
But there could be reasons, could there not, for Congress to say, don't make the more boots on the ground presence

[00:28:43] Speaker 03:
abroad, but writing checks, that's another thing.

[00:28:47] Speaker 00:
Well, first, the reason you're positing Judge Toronto, I don't think that would extend to entering into contracts in advance with third parties.

[00:28:58] Speaker 00:
Any need to prohibit that, even if there was a concern about federal facilities abroad.

[00:29:05] Speaker 00:
More generally, I think consistent with the broader purposes of Chapter 17, the focuses are much more

[00:29:13] Speaker 00:
on controlling taxpayer costs and on ensuring quality of care.

[00:29:21] Speaker 00:
and more than where federal facilities are built.

[00:29:24] Speaker 02:
Is there something you can point to that would support that statement you just made?

[00:29:29] Speaker 00:
Well, even in 1725, you see in the definition of emergency treatment that Mr. Vandermark's focused on, understandably, the focus is on getting somebody to the nearest possible or the nearest federal facility possible as quickly as possible.

[00:29:51] Speaker 00:
The focus is on how the government can recoup costs once they've been paid out.

[00:29:57] Speaker 00:
So all these are indications of Congress's overarching purpose of controlling costs and making sure care is appropriately provided.

[00:30:07] Speaker 03:
What would you describe the overarching purpose of providing for the emergency care

[00:30:12] Speaker 03:
when you can't get to a VA facility.

[00:30:15] Speaker 03:
Isn't it just that travel is such a normal and part of a enriched life that Congress wanted veterans to be able to travel without the risk of needing emergency care for which they would not have the government assistance.

[00:30:36] Speaker 00:
I don't know if there's any indication that travel abroad was one of the purposes of 1725 or 1728.

[00:30:41] Speaker 00:
It certainly is the case.

[00:30:44] Speaker 01:
Does it have anything to do with domestic travel?

[00:30:47] Speaker 00:
Well, it certainly is the case that Congress wanted veterans to be free to go about their lives and get paid for or get covered for emergency care that they received.

[00:31:02] Speaker 00:
So we don't dispute that that was Congress's purpose.

[00:31:05] Speaker 01:
The question is- But I guess, specifically, was Congress concerned about emergency treatment for veterans who

[00:31:14] Speaker 01:
or traveling as opposed to living in remote areas distant from hospital facilities.

[00:31:23] Speaker 00:
I'd understood the purpose to be more... I'm sorry, Your Honor.

[00:31:27] Speaker 00:
I'd understood the purpose to be focused on remote areas more than travel but I don't recall specifically one way or the other the legislative history on that point.

[00:31:42] Speaker 02:
Could you talk a little bit about the presumption against extraterritoriality?

[00:31:46] Speaker 02:
Have you seen it applied to a benefits program?

[00:31:49] Speaker 00:
I'm not aware of any cases that have applied to the benefits program.

[00:31:52] Speaker 00:
I'm not aware of any cases that are foreclosed applying into a benefits program.

[00:31:57] Speaker 00:
Consistent with some of the discussion

[00:32:01] Speaker 00:
Earlier, the purpose of Chapter 17 is to certainly, we don't disagree that part of it is to give veterans benefits for the health care they receive.

[00:32:17] Speaker 00:
But it's not a pension statute where it's a status-based determination and veterans automatically get benefits based on their disability status.

[00:32:28] Speaker 00:
Congress is much more granular in describing when care

[00:32:34] Speaker 00:
qualifies for federal reimbursement and for federal provision.

[00:32:41] Speaker 00:
So in our view, just describing the purpose of these provisions as just providing benefits to veterans is too general a purpose.

[00:32:52] Speaker 00:
Congress went into painstaking detail about when care is covered.

[00:32:58] Speaker 00:
So looked at from the perspective of the Morrison test,

[00:33:03] Speaker 00:
and subsequent Supreme Court precedent, the conduct relevant to the statute, to the statute's purpose or statute's focus, is the care that Mr. Vandermark received here, and that care was received abroad.

[00:33:18] Speaker 00:
So in our view,

[00:33:21] Speaker 00:
the canon should apply here.

[00:33:24] Speaker 00:
To be clear, though, that's a secondary argument from our perspective, because our primary argument is that Congress was not silent in this statutory provision on whether this statute applies abroad.

[00:33:38] Speaker 00:
Congress said care cannot be provided abroad for non-service-connected disabilities.

[00:33:45] Speaker 03:
Care cannot be furnished.

[00:33:47] Speaker 00:
Care cannot be furnished.

[00:33:48] Speaker 00:
That's right.

[00:33:49] Speaker 00:
Provided.

[00:33:50] Speaker 00:
Provided for is a definition.

[00:33:55] Speaker 00:
Provided for is a definition that the Veterans Court used.

[00:34:01] Speaker 00:
And in our view, that encompasses both direct and indirect.

[00:34:06] Speaker 03:
It seems certainly broad.

[00:34:08] Speaker 03:
So just to double check something, I think you answered these questions.

[00:34:12] Speaker 03:
But if we were to look at the legislative history in 1973 for 1728,

[00:34:17] Speaker 03:
1999 for 1725, if I've got that right.

[00:34:21] Speaker 03:
And maybe also the Federal Register in 1968, when the VA adopted the regulation that eventually became 1728.

[00:34:29] Speaker 03:
Would we see any discussion of either the following two distinctions, foreign versus domestic, or travel by veterans

[00:34:46] Speaker 03:
living close to VA facilities versus veterans who are residing too far from veterans facilities, actually residing too far?

[00:34:59] Speaker 00:
I'm not aware of any legislative history along those lines that would address those issues.

[00:35:07] Speaker 00:
So to address, I see my time is expired.

[00:35:12] Speaker 00:
If I could.

[00:35:13] Speaker 00:
You can have it included.

[00:35:15] Speaker 00:
I'm sorry, Your Honor.

[00:35:16] Speaker 01:
You can make a concluding thought.

[00:35:17] Speaker 00:
OK.

[00:35:18] Speaker 00:
I just want to address briefly the specific general point.

[00:35:23] Speaker 00:
So as to the specific versus the general, our view is not just that the 1724 is more specific because it deals with territory, while 1725 and 1728 deal with the type of care.

[00:35:38] Speaker 00:
Our argument is that 1724 contains both the rule and the exceptions to that rule related to extraterritorial application of or extraterritorial provision of care, furnishing of care.

[00:35:53] Speaker 00:
So from our perspective, 1724 is more specific in that it is a comprehensive, self-contained accounting for the rules in this subject.

[00:36:07] Speaker 00:
And as compared to that self-contained set of rules and exceptions, 1725 and 1728 are more general.

[00:36:18] Speaker 00:
And of course, those statutes were enacted later in time.

[00:36:23] Speaker 00:
Thank you.

[00:36:25] Speaker 01:
Is there any indication in the legislative history of the emergency care provisions that they were designed to enable veterans to travel?

[00:36:49] Speaker 01:
and receive emergency treatment.

[00:36:52] Speaker 04:
The legislative history doesn't speak to that level of detail.

[00:36:58] Speaker 04:
The best indication of Congress's intent is the language Congress used in the statute, and that is he was concerned about whether a VA facility or other federal facility was reasonably available.

[00:37:11] Speaker 04:
Could a prudent person make it to that facility, or is this a sufficiently threatening emergency that you can't make it there?

[00:37:20] Speaker 04:
And that is generalized logic.

[00:37:22] Speaker 04:
That applies to whether it's your residence, that applies to whether you're traveling domestically, that applies to whether you're

[00:37:28] Speaker 04:
traveling abroad.

[00:37:29] Speaker 04:
And so what we have here on the Genover specific point is we have an old statute that is about all forms of medical services, all forms of hospital care, all forms of domiciliary care not being furnished overseas.

[00:37:46] Speaker 04:
And then Congress comes back later and thinks very specifically about the issue of emergency treatment, the small subset

[00:37:55] Speaker 04:
and things very specifically about reimbursement, which, again, to even have a conflict would be the subset of furnishing, and things very specifically about where it wants this provided.

[00:38:09] Speaker 04:
vis-a-vis the facilities.

[00:38:11] Speaker 04:
So even if there is a conflict on the statute, the specific provision here is 1725 and 1728.

[00:38:20] Speaker 04:
I'd also just make, we haven't talked about the veterans canon here, but I think that in making- Can I just, since you have very little time.

[00:38:28] Speaker 03:
So at least since 1973, there has been this prohibition and an emergency treatment provision.

[00:38:38] Speaker 03:
That's 50 years.

[00:38:40] Speaker 03:
What do we know about VA practice in all that time?

[00:38:46] Speaker 04:
Well, here's the key thing.

[00:38:48] Speaker 04:
In 1973 and 1999, the statutes about emergency treatments said May.

[00:38:54] Speaker 04:
So the VA, at a long period of time,

[00:38:57] Speaker 04:
It wasn't under those mandates.

[00:38:59] Speaker 04:
It had discretion.

[00:39:01] Speaker 03:
In 2008.

[00:39:01] Speaker 03:
And during those periods, it was not, in fact, paying for services like the services here.

[00:39:10] Speaker 04:
I couldn't tell from looking into that.

[00:39:12] Speaker 04:
I couldn't tell what the practice was in this period.

[00:39:15] Speaker 03:
2008.

[00:39:16] Speaker 04:
2008 flips the May at a shell.

[00:39:18] Speaker 04:
That is where the conflict started.

[00:39:21] Speaker 04:
comes here in the legislative history in 2008 that's congratulating Congress on being the sort of most pro-veteran Congress they've had.

[00:39:29] Speaker 04:
And that's what sort of turns it over and creates this conflict here.

[00:39:35] Speaker 04:
While we're talking about legislative history, Judge.

[00:39:37] Speaker 01:
So 1724, of course, your interpretation would not be veteran friendly because the veteran living abroad who had a service-connected disability would not be able to get reimbursement

[00:39:52] Speaker 04:
Well, but if the VA has to do more to accommodate that veteran, in other words, be more involved.

[00:40:00] Speaker 04:
No, I'm going to answer my question.

[00:40:02] Speaker 01:
Your construction of 1724 is less veteran-friendly because it would mean that the VA for someone with a service-connected disability couldn't pay, couldn't reimburse the veteran for care received abroad.

[00:40:20] Speaker 04:
That would be correct.

[00:40:22] Speaker 04:
Now the VA could then change its behavior and be more involved up front.

[00:40:28] Speaker 04:
I also would say on this reimbursement point, Judge Egg, I just want to turn back to the 1988 legislative history.

[00:40:34] Speaker 04:
House Conference Report 10578, pages 77 through 78 are talking about the House bill is relating to contract hospital and outpatient treatment or care.

[00:40:47] Speaker 04:
And in describing the conference agreement, it's all about furnish care, furnish care, furnish care.

[00:40:52] Speaker 04:
It's using the term furnish.

[00:40:54] Speaker 04:
Earlier in the report, it talks about to furnish appropriate care, to furnish contract outpatient care, or to arrange for the veteran to receive the nearest care at the nearest VA facility.

[00:41:06] Speaker 04:
But I take the point, if you disagree with me on furnish in the abstract,

[00:41:12] Speaker 04:
then I think this is a general specific case.

[00:41:15] Speaker 04:
And there, you can apply the pro-veteran canon in thinking about which is the more specific provision.

[00:41:22] Speaker 04:
And you're not doing anything to 1724.

[00:41:26] Speaker 04:
You're leaving it in place.

[00:41:27] Speaker 04:
It's just a classic situation where Congress spread out over two different periods of time, has created two provisions that are in conflict, and you're giving effect to the later in time

[00:41:38] Speaker 04:
more specific provision that speaks to emergency treatment.

[00:41:43] Speaker 01:
And that would be the pro-veteran result.