Van Dermark v. McDonough ( 2023 )

Case: 21-2225 Document: 61 Page: 1 Filed: 01/23/2023
United States Court of Appeals
for the Federal Circuit
______________________
PETER VAN DERMARK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2225
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2795, Judge Coral Wong Pi-
etsch, Judge Joseph L. Toth, Judge William S. Greenberg.
______________________
Decided: January 23, 2023
______________________
THOMAS SAUNDERS, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC, argued for claimant-appellant.
Also represented by DOMINICK HURLEY, Los Angeles, CA.
MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by MICHAEL GRANSTON, REBECCA SARAH
KRUSER, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM;
ALEXANDRA RIGBY, BRYAN THOMPSON, Office of General
Case: 21-2225 Document: 61 Page: 2 Filed: 01/23/2023
2 VAN DERMARK v. MCDONOUGH
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before DYK, TARANTO, and STARK, Circuit Judges.
TARANTO, Circuit Judge.
Peter Van Dermark is a veteran with a service-con-
nected disability recognized by the Department of Veterans
Affairs (VA). While abroad, he received medical treatment
from a non-VA source for conditions not derived from that
disability. By assumption here, the treatment was emer-
gency treatment. Mr. Van Dermark filed claims with VA
asking it to pay for his treatment, under 38 U.S.C. § 1728(enacted in 1973) and § 1725 (enacted in 1999), either by
paying those who treated him or by paying him (reimburs-
ing him) for what he had paid or owed them. VA’s Office of
Community Care denied both claims, the Board of Veter-
ans’ Appeals maintained the denials, and the Court of Ap-
peals for Veterans Claims (Veterans Court) affirmed the
Board’s decision. Van Dermark v. McDonough, 34 Vet.
App. 204, 206 (2021).
The basis of the denial was 38 U.S.C. § 1724, which, as
relevant here, took its current form in 1958, based on a
1940 statute containing the key phrase now in dispute.
Specifically, the Veterans Court, like VA, relied on
§ 1724(a), which prohibits VA from “furnish[ing] hospital
. . . care or medical services” abroad, except in limited cir-
cumstances concededly not present here. On Mr. Van Der-
mark’s appeal, we agree with the Veterans Court that the
“furnishing” phrase encompasses the payment for a vet-
eran’s hospital care or medical expenses abroad at issue
here, making the § 1724(a) prohibition applicable, and that
§§ 1728 and 1725 do not override that prohibition. We
therefore affirm.
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VAN DERMARK v. MCDONOUGH 3
I
We decide the issue before us based on facts accepted
by the parties for purposes of this appeal. Mr. Van Der-
mark served in the United States Navy from June 1963 un-
til his honorable discharge in May 1976. VA has found Mr.
Van Dermark to be totally and permanently disabled due
to service-connected injuries. As relevant here, Mr. Van
Dermark received treatment in Thailand (where he lived)
at non-VA facilities, from physicians and others not affili-
ated with VA, on two occasions—first in 2016, again in
2018—both times for cardiac conditions not related to his
service-connected disability. For each of the two instances
of treatment abroad, Mr. Van Dermark filed a claim with
VA under 38 U.S.C §§ 1728 and 1725 seeking VA pay-
ment—to him or his medical creditors—for the surgical or
other heart-related treatment he received abroad.
Section 1728(a) says that the Secretary “shall . . . reim-
burse veterans eligible for hospital care or medical services
under this chapter for the customary and usual charges of
emergency treatment . . . for which such veterans have
made payment, from sources other than the Department,
where such emergency treatment was rendered to such vet-
erans in need thereof” in specified circumstances. 38
U.S.C. § 1728(a). 1 One such circumstance is where the
treatment is for “[a]ny disability of a veteran if the veteran
has a total disability permanent in nature from a service-
connected disability.” Id. § 1728(a)(3). Section 1728 allows
1 Enacted in 1973 as 38 U.S.C. § 628 using “may,”
the provision was recodified as 38 U.S.C. § 1728 in 1991 (as
part of the general recodification of chapter 17, changing
“6xy” provisions to “17xy” provisions) and has used “shall”
since 2008. See Pub. L. No. 93-82, § 106(a), 87 Stat. 183(1973); Pub. L. No. 102-83, § 5(a), 105 Stat. 406 (1991) (re-
codification); Pub. L. No. 110-387, § 402(b)(1), 122 Stat.
4123 (2008) (replacing “may” with “shall”).
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4 VAN DERMARK v. MCDONOUGH
the Secretary, “in lieu of reimbursing such veteran,” to
“make payment of the reasonable value of emergency treat-
ment directly—(1) to the hospital or other health facility
furnishing the emergency treatment; or (2) to the person or
organization making such expenditure on behalf of such
veteran.” Id. § 1728(b). The section borrows the meaning
of “emergency treatment” from § 1725(f)(1). Id. § 1728(c).
Section 1728 makes no reference to treatment abroad.
Section 1725(a) says that, subject to certain conditions
and limitations, the Secretary “shall reimburse a veteran
described in subsection (b) for the reasonable value of
emergency treatment furnished the veteran in a non-De-
partment facility,” while authorizing the same direct-pay-
ment alternative to reimbursement as does § 1728. Id.
§ 1725(a)(1), (2). 2 Section 1725(b) describes the eligible
veteran as one “who is an active Department health-care
participant who is personally liable for emergency treat-
ment furnished the veteran in a non-Department facility.”
Id. § 1725(b)(1). The subsection identifies who is “an active
Department health-care participant” in terms of enroll-
ment in the VA health-care system under 38 U.S.C.
§ 1705(a) and recent receipt of care under chapter 17. Id.§ 1725(b)(2). It further identifies being “personally liable”
in terms that, among other things, exclude a veteran who
has “entitlement to care or services under a health-plan
contract” or eligibility “for reimbursement for medical care
or services under section 1728.” Id. § 1725(b)(3). 3 Section
2 Enacted in 1999 using “may,” the provision has
used “shall” since 2008. See Pub. L. No. 106-117, title I,
§ 111(a), 113 Stat. 1553 (1999) (enacting 38 U.S.C. § 1725);
Pub. L. No. 110-387, title IV, § 402(a), 122 Stat. 4123 (2008)
(changing “may” to “shall”).
3 The term “health-plan contract” covers various in-
surance and other arrangements, an “insurance program”
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VAN DERMARK v. MCDONOUGH 5
1725(c) adds that the veteran’s liability for the costs of the
treatment is extinguished if the Secretary makes payment
under the section on behalf of the veteran “to a provider of
emergency treatment” unless the payment is “rejected and
refunded by the provider within 30 days of receipt,” and it
makes specified contractual arrangements or their absence
immaterial to the applicability of that extinguishment pro-
vision. Id. § 1725(c)(3). Like § 1728, § 1725 makes no ref-
erence to treatment abroad.
Mr. Van Dermark contended that he was entitled to the
claimed payment because the treatment he received in
2016 and 2018 in Thailand constituted “emergency treat-
ment” under §§ 1728 and 1725. He claimed eligibility for
payment under § 1728 because of his total-disability rating
and under § 1725 because he was an active VA healthcare
participant with recent enough receipt of VA care. VA’s
Office of Community Care and the Board denied both
claims, applying § 1724(a)’s prohibition on VA’s “fur-
nish[ing] hospital care and medical services” “outside any
State” where, as is undisputed here, the exceptions stated
in § 1724 do not apply (because the treated conditions are
not related to a service-connected disability and this mat-
ter does not involve the Philippines).
The Veterans Court affirmed the Board’s decision. Van
Dermark, 34 Vet. App. at 206. For purposes of its decision,
the Veterans Court assumed arguendo that the treatment
was “emergency treatment” under §§ 1728 and 1725. Id. at
209–10. And the Veterans Court concluded that, as Mr.
Van Dermark did not dispute, the phrase “medical ser-
vices” of § 1724(a) covers “emergency treatment” of §§ 1728
and 1725 and hence, by assumption for purposes of the
specified in 42 U.S.C. § 1395c (Medicare Part A) or § 1395j
(Medicare Part B), a state plan under 42 U.S.C. § 1396 et
seq. (Medicaid), or a specified “worker’s compensation law
or plan.” 38 U.S.C. § 1725(f)(2).
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6 VAN DERMARK v. MCDONOUGH
appeal, the treatment Mr. Van Dermark received in 2016
and 2018. Id. at 210.
On the key point in dispute, the court ruled that “fur-
nish[ing] . . . medical services” in § 1724 included VA’s pay-
ing for treatment rendered by the direct hands-on
providers independent of VA, including when the payment
takes the form of “reimburse[ment]” paid directly to the
veteran for the veteran’s debt for the treatment. Id. at
210–15. The Veterans Court reasoned that “furnish” can
be understood to include “provide for” something indirectly,
id. at 210–11 (quoting Webster’s New International Diction-
ary 1021 (2d ed. 1934)), and that § 1724 uses the broad
sense, which includes paying for what others directly pro-
vide, as supported by the specific statutory context and its
history and implementation: Notably, § 1724(b)’s specific
authorization to “furnish hospital care and medical ser-
vices” in certain circumstances has long been understood
and applied to cover such payments, id. at 211–14. Having
concluded that the prohibition of § 1724(a) applied to bar
the requested payments for services abroad, the Veterans
Court also concluded that §§ 1728 and 1725 did not over-
ride that prohibition because there was no basis for reading
them to apply abroad. Id. at 214–15. Judge Greenberg dis-
sented. Id. at 215–16.
Mr. Van Dermark timely appealed the Veterans
Court’s decision. Because Mr. Van Dermark raises an is-
sue of law—statutory interpretation—we have jurisdiction
under 38 U.S.C. § 7292. Carter v. McDonough, 46 F.4th
1356, 1359 (Fed. Cir. 2022). We review the Veterans
Court’s statutory interpretation de novo. Gurley v.
McDonough, 23 F.4th 1353, 1356 (Fed. Cir. 2022).
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VAN DERMARK v. MCDONOUGH 7
II
The question before us is the scope of the phrase “fur-
nish hospital . . . care or medical services” in § 1724(a).
Section 1724 is the 1991 recodification of what had been 38
U.S.C. § 624, Pub. L. No. 102-83, § 5(a), 105 Stat. 406(1991), with the only change since 1991 being the 2000 ad-
dition of subsection (e), Pub. L. No. 106-377, § 1(a)(1) [title
V, § 501(c)], 114 Stat. 1441, 1441A-58 (2000). Congress en-
acted § 624 in 1958 in a form containing the language and
structure centrally at issue here, Pub. L. No. 85-857, 72Stat. 1105, 1144 (1958), having adopted a similar version
as part of a recodification the year before. 4
Section 1724 reads in full:
4 The 1958 enactment, 38 U.S.C. § 624, read:
§ 624. Hospital care and medical services abroad
(a) Except as provided in subsections (b) and
(c), the Administrator shall not furnish hospital or
domiciliary care or medical services outside the
continental limits of the United States, or a Terri-
tory, Commonwealth, or possession of the United
States.
(b) The Administrator may furnish necessary
hospital care and medical services for any service-
connected disability—
(1) if incurred during a period of war, to any
veteran who is a citizen of the United States
temporarily sojourning or residing abroad ex-
cept in the Republic of the Philippines; or
(2) whenever incurred, to any otherwise el-
igible veteran in the Republic of the Philip-
pines.
(c) Within the limits of those facilities of the
Veterans Memorial Hospital at Manila, Republic of
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8 VAN DERMARK v. MCDONOUGH
(a) Except as provided in subsections (b) and
(c), the Secretary shall not furnish hospital or dom-
iciliary care or medical services outside any State.
(b)(1) The Secretary may furnish hospital care
and medical services outside a State to a veteran
who is otherwise eligible to receive hospital care
and medical services if the Secretary determines
that such care and services are needed for the
treatment of a service-connected disability of the
veteran or as part of a rehabilitation program un-
der chapter 31 of this title.
(2) Care and services for a service-connected
disability of a veteran who is not a citizen of the
the Philippines, for which the Administrator may
contract, he may furnish necessary hospital care to
a veteran of any war for any non-service-connected
disability if such veteran is unable to defray the ex-
penses of necessary hospital care. The Administra-
tor may enter into contracts to carry out this
section.
Pub. L No. 85-857, 72 Stat. 1144 (1958). This was part of
a broad recodification of Title 38. Id. at 1105–1274.
A 1957 codification, Pub. L. No. 85-56, 71 Stat. 83–175
(1957), included 38 U.S.C. § 524, 71 Stat. 113, which read:
Sec. 524. The Administrator shall not fur-
nish hospital or domiciliary care or medical
services outside the continental limits of the
United States, or a Territory, Commonwealth,
or possession o f the United States, except that
he may furnish necessary hospital care and med-
ical services for service-connected disabilities
incurred during a period of war to v eterans
who are citizens of the United States temporar-
ily sojourning or residing abroad.
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VAN DERMARK v. MCDONOUGH 9
United States may be furnished under this subsec-
tion only—
(A) if the veteran is in the Republic of the
Philippines or in Canada; or
(B) if the Secretary determines, as a matter
of discretion and pursuant to regulations
which the Secretary shall prescribe, that it is
appropriate and feasible to furnish such care
and services.
(c) Within the limits of those facilities of the
Veterans Memorial Medical Center at Manila, Re-
public of the Philippines, for which the Secretary
may contract, the Secretary may furnish necessary
hospital care to a veteran for any non-service-con-
nected disability if such veteran is unable to defray
the expenses of necessary hospital care. The Sec-
retary may enter into contracts to carry out this
section.
(d) The Secretary may furnish nursing home
care, on the same terms and conditions set forth in
section 1720(a) of this title, to any veteran who has
been furnished hospital care in the Philippines
pursuant to this section, but who requires a pro-
tracted period of nursing home care.
(e) Within the limits of an outpatient clinic in
the Republic of the Philippines that is under the
direct jurisdiction of the Secretary, the Secretary
may furnish a veteran who has a service-connected
disability with such medical services as the Secre-
tary determines to be needed.
38 U.S.C. § 1724. “State” means “each of the several
States, Territories, and possessions of the United States,
the District of Columbia, and the Commonwealth of Puerto
Rico.” Id. § 101. We use “abroad” to mean “outside any
State.”
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10 VAN DERMARK v. MCDONOUGH
The two subsections of central significance here are (a)
and (b). Subsection (a) prohibits VA from furnishing hos-
pital care and medical services abroad, subject only to the
“[e]xcept[ions]” stated in subsections (b) and (c). Subsec-
tion (b) then defines an exception that allows VA to furnish
hospital care and medical services only for service-con-
nected disabilities. 5 The other three subsections—inappli-
cable here, and on which Mr. Van Dermark has not relied
for his argument—all concern the distinctive situation pre-
sented by the Republic of the Philippines, reflecting its
unique relationship to the United States, especially during
World War II. See, e.g., S. Rep. No. 85-1469, at 1–12
(1958). 6
We conclude that the “furnish” phrase at issue covers
what Mr. Van Dermark claims here—VA payment for a
veteran’s treatment (i.e., hospital care or medical services),
whether payment is made to the treated veteran or to those
to whom the veteran owes a debt for the treatment. It is
undisputed that, if we so conclude, the § 1724(a) prohibi-
tion applies where, as in this case, the treatment was ren-
dered abroad and is not for a service-connected disability.
We also conclude that §§ 1728 and 1725 do not override the
§ 1724(a) prohibition.
5 The subsection refers also to “a rehabilitation pro-
gram under chapter 31,” 38 U.S.C. §§ 3100–3122, which
applies to “veterans with service-connected disabilities,”
38 U.S.C. § 3100; see 38 U.S.C. ch. 31 heading.
6 VA has explained that it “has had a presence in the
Philippines since 1922” and its “Manila Regional Office and
Outpatient Clinic is the only VA office located outside [the]
United States or its territories,” with the Clinic offering
various medical services. Fact Sheet, Department of Vet-
erans Affairs (Sept. 2020), https://www.bene-
fits.va.gov/ROMANILA/docs/VAManilaFactSheet.pdf.
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VAN DERMARK v. MCDONOUGH 11
A
Our analysis of the phrase at issue from § 1724(a) (“fur-
nish hospital . . . care or medical services”) reflects the fact
that what is substantively the same phrase appears in
§ 1724(b) (“furnish hospital care and medical services”).
The phrase in subsection (a) is a prohibitory, “shall not”
phrase, and so uses “or,” whereas the phrase in subsection
(b) is an authorizing, “may” phrase, and so uses “and.” But
Mr. Van Dermark agrees that the two phrases have the
same meaning with respect to the disputed issue of cover-
age of VA’s payment for treatment provided by others, Oral
Arg. at 1:43–50, and we see no basis for a contrary conclu-
sion. See also Oral Arg. at 19:45–20:20 (Secretary urging
same meaning).
This premise is important for at least two reasons.
First, the phrase appears in the 1940 predecessor to cur-
rent § 1724(b) (and in the 1958- and 1957-enacted statutes
quoted above)—that is, in the phrase authorizing VA to fur-
nish treatment abroad for service-connected conditions. 7
7 In 1933, Congress granted VA authority to “furnish
. . . medical and hospital treatment” in existing VA facili-
ties to certain veterans. Title I § 6, Pub. L. No. 73-2, 48Stat. 8 (1933). That authority was implemented in two
1933 executive orders (available at 38 U.S.C. Ch. 12A
(1934)) that by regulation authorized VA to “furnish . . .
hospital care, including medical treatment” in VA facilities
to certain veterans, but declared that “[n]o person shall be
entitled to receive domiciliary, medical, or hospital care, in-
cluding treatment, who resides outside of the continental
limits of the United States or its territories or possessions,”
Exec. Order No. 6094 §§ I, IV; see Exec. Order No. 6232
§§ I, IV (same). In 1940, Congress “amended” § IV of the
regulation “to read as follows,” authorizing care abroad:
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12 VAN DERMARK v. MCDONOUGH
Accordingly, we look to 1940 (or to 1933–1940) as the per-
tinent time of initial congressional adoption, a fact of sig-
nificance in statutory interpretation, and we focus on the
scope of Congress’s authorization of treatment abroad.
Second, a narrowing of the “furnish” phrase would sim-
ultaneously narrow the § 1724(a) prohibition and the
§ 1724(b) authorization. With respect to what benefits vet-
erans, the two effects are opposites—the first would relax
a limit on possible benefits to veterans, and the second
would constrain the provision of benefits to veterans. In
fact, VA has long been paying for veteran-obtained care
abroad under § 1724(b), and Mr. Van Dermark agrees that
his interpretation would require curtailment of VA’s prac-
tice, Oral Arg. at 1:00–2:10. In the circumstances before
us, where each of the argued-for interpretations would ben-
efit some veterans at the expense of others, and we lack
information to compare magnitudes, we see no role for the
pro-veteran interpretive canon. See Burden v. Shinseki,
727 F.3d 1161, 1169 (Fed. Cir. 2013).
1
We start with consideration of the statutory provision’s
“ordinary meaning at the time Congress enacted the
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 or its Territories or possessions: Pro-
vided, That in the discretion of the Administrator
of Veterans’ Affairs necessary hospital care, includ-
ing medical treatment, may be furnished to veter-
ans 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.
Pub. L. No. 76-866, § 4, 54 Stat. 1195 (1940).
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VAN DERMARK v. MCDONOUGH 13
statute.” New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539
(2019) (cleaned up). The language permits a meaning that
includes the meaning adopted by the Veterans Court. The
prominent comprehensive contemporaneous dictionary,
Webster’s Second, released in 1934, gives definitions of “fur-
nish” that include “to provide” and (listed first among the
non-obsolete meanings) “to provide for.” Webster’s New In-
ternational Dictionary of the English Language 1021 (2d
ed. 1937). Each definition on its face—as well as “provide
what is necessary for,” listed next to “provide for” in the
same definition, id.—is sufficiently broad to include, where
context makes it appropriate, both directly delivering
treatment and more indirectly enabling receipt of treat-
ment by paying (in advance or after the fact) for the treat-
ment, whether payment is made to the treater or to the
recipient. And nothing on the face of § 1724 precludes the
broader meaning, under which Congress barred VA from
both the delivery and payment roles for treatment abroad,
subject to specific exceptions for service-connected prob-
lems and the special situation presented by the Philip-
pines.
Thus, the expression at issue here is one that can be
used differently in different settings—for example, to refer
just to the actions of the direct treaters (or their principals)
or, more broadly, to various forms of indirect provision, in-
cluding by funding. Context always matters, Artis v. Dis-
trict of Columbia, 138 S. Ct. 594, 603–04 (2018); Johnson
v. United States, 559 U.S. 133, 139 (2010), and “the specific
context in which that language is used” is especially im-
portant, Merit Management Group, LP v. FTI Consulting,
Inc., 138 S. Ct. 883, 892–93 (2018). Still more specifically,
courts give effect to clear differences in context to identify
which of the available meanings is the right one for a par-
ticular setting, even if the differences are among parts of a
single overall statute. See Return Mail, Inc. v. U.S. Postal
Service, 139 S. Ct. 1853, 1863 (2019) (requiring different
meanings “when a statutory term is used throughout a
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14 VAN DERMARK v. MCDONOUGH
statute and takes on ‘distinct characters’ in distinct statu-
tory provisions” (quoting Utility Air Regulatory Group v.
EPA, 573 U.S. 302, 320 (2014))); Cherokee Nation v. State
of Georgia, 30 U.S. (5 Pet.) 1, 19 (1831). That approach
applies a fortiori within a chapter of a title of the U.S. Code
when the differences are among provisions enacted at dif-
ferent times.
Here, for the reasons now set forth, we conclude that
the “specific” context supports the broader meaning within
§ 1724.
2
Mr. Van Dermark effectively agrees that the narrow
direct-provision meaning is not appropriate for § 1724. In
particular, he accepts that § 1724(b)’s use of “furnish . . .
medical services”—and hence, too, § 1724(a)’s use of the
same phrase—reaches beyond VA’s own delivery of care,
through its own facilities, employees, or agents making VA
the principal responsible for the treatment (the “provider”
in modern parlance). E.g., Reply Br. at 8–9; Van Dermark,
34 Vet. App. at 211. And he does not dispute the Veterans
Court’s explanation of the evident reason: Congress was
seeking to enable veterans abroad to get treatment for ser-
vice-connected disabilities, and VA had virtually no pres-
ence abroad. Van Dermark, 34 Vet. App. at 212–13
(discussing both 1940 legislative history and VA non-pres-
ence abroad); see U.S. Br. at 23–24; Annual Report of the
Administrator of Veterans’ Affairs for the Fiscal Year
Ended June 30, 1941, at 11, 52–53 (1942). Mr. Van Der-
mark adds, moreover, that there are “good reasons” for a
congressional policy against a VA expansion of its presence
abroad that would put it “in the business of providing care
abroad through its own facilities or through other advance
arrangements with private providers” abroad, e.g., that
“giving the Secretary’s medical infrastructure a global
reach might entail unwanted complexities, including the
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VAN DERMARK v. MCDONOUGH 15
need to reconcile such infrastructure with the healthcare
laws of other nations.” Opening Br. at 29–30.
These acknowledgements confirm the inappropriate-
ness of the narrow reading of the phrase at issue in § 1724.
They also indicate why the broader reading allows
§ 1724(b) to be more effective in furthering the evident con-
gressional purpose of enabling veterans to receive care
abroad for service-connected conditions. “A textually per-
missible interpretation that furthers rather than obstructs
the document’s purpose should be favored,” and “evident
purpose always includes effectiveness.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts § 4, at 63 (2012); see also Transpacific Steel LLC v.
United States, 4 F.4th 1306, 1323 (Fed. Cir. 2021). Con-
gress allowed the Secretary to make judgments about how
to implement the authorization, considering all relevant
factors, including benefits to veterans, administrative
costs, and others. The broad reading of the scope of author-
ization thus permits the grant of authority to be more ef-
fective in achieving the plain congressional purposes.
Later expressions of congressional understanding lend
further support to the broader reading of the “furnish”
phrase in § 1724, which encompasses paying for treatment
delivered by others for whom VA was not the principal.
When Congress enacted 38 U.S.C. § 624 in 1958, it consid-
ered the proper scope of the special provisions for the Phil-
ippines. In that context, the Senate Committee recognized,
based on the submissions of VA and the Bureau of the
Budget, that “American veterans residing in other coun-
tries, such as France, England, or Germany, are not given
medical care at VA expense for non-service-connected disa-
bilities.” S. Rep. No. 85-1469, at 5 (1958) (emphasis added).
The phrase suggests coverage, by the statutory phrase at
issue, of the payment function here in dispute.
Congressional action in 1987 is even more supportive
of the broader reading of the phrase in dispute. Before
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16 VAN DERMARK v. MCDONOUGH
1988, subsection (b)—of what was then 38 U.S.C. § 624—
permitted VA to furnish care abroad only if the veteran re-
ceiving care was “a citizen of the United States” or “in the
Republic of the Philippines.” 38 U.S.C. § 624(b) (1982). In
1988, Congress amended the subsection to cover U.S. vet-
erans who were Canadian citizens living in Canada. See
Title I § 105, Pub. L. No. 100-322, 102 Stat. 487 (1988)
(providing that VA may furnish care to non-citizens “only
. . . if the veteran is in the Republic of the Philippines or
Canada” or otherwise “as a matter of discretion”). The per-
tinent House Committee described the effect of the House
bill, which included language substantially similar to that
of the final enactment. Compare H.R. Res. 2616, 100th
Cong. (1987), and H.R. Rep. No. 100-191, at 54, with Title I
§ 105, Pub. L. No. 100-322, 102 Stat. 487 (1988). It ex-
plained that such Canadian citizens would be able to re-
ceive medical care “for their service-connected conditions
on a reimbursable basis by the VA,” H.R. Rep. No. 100-191,
at 11 (emphasis added), demonstrating that Congress un-
derstood § 1724(b)’s grant of authority to furnish care
abroad to permit reimbursement. That language is used in
§ 1728 (already enacted by 1987), and in § 1725 (yet to be
enacted), to refer to payment to the veteran, not to pay-
ments to the direct provider “in lieu of reimbursing [the]
veteran.” 38 U.S.C. § 1728(b); see 38 U.S.C. § 1725(a)(2).
Mr. Van Dermark advances a kind of middle position.
He contends that VA must have some kind of contract with
the treating persons or entities in order for its role in ena-
bling veterans to receive services to constitute “furnishing”
the services. Opening Br. at 28, 31–34; Reply Br. at 5, 9.
This contention, even aside from some uncertainty about
what Mr. Van Dermark suggests must be in the contract,
is unpersuasive.
The suggestion runs counter to the indications of con-
gressional contemplation, quoted above, that the furnish-
ing phrase covers VA bearing the “expense” and covers
“reimbursement”—the latter term focusing on the VA-
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VAN DERMARK v. MCDONOUGH 17
veteran relationship, not a VA-treater relationship. More
fundamentally, Mr. Van Dermark has supplied no persua-
sive reason that a contractual obligation, on VA’s part or
on direct service deliverers’ part, is a necessary aspect of
“furnishing” (e.g., “providing for”) in its available, broad
sense, which encompasses indirect provision through pay-
ing to help enable receipt of the service. That sense might
even encompass such paying without any obligation preex-
isting the service, but it readily encompasses what is in-
voked here—an alleged obligation to pay that preexisted
the service—and that meaning is independent of the par-
ticular legal basis for the obligation, whether the obligation
is contractual or, instead, as Mr. Van Dermark asserts
here, statutory or regulatory.
When Congress wished to focus on contracts as one
means of implementing the “furnishing” phrase, it did so
by including additional language, over and above the “fur-
nishing” phrase itself. In § 1724, for example, subsection
(c) ends with a sentence saying: “The Secretary may enter
into contracts to carry out this section.” 38 U.S.C.
§ 1724(c). The separate mention of contracts confirms that
the “furnishing” phrase itself does not require contracts.
And the “may” language makes clear that all it does is de-
clare that contracts are one way to implement the section,
not that they are the only way.
Sections 1703 and 1703A provide an instance in which
Congress used additional language to refer to contracts
when VA is furnishing care by paying for care directly de-
livered by others. Section 1703, in its current form, states
that the Secretary “shall, subject to the availability of ap-
propriations, furnish hospital care, medical services, and
extended care services to a covered veteran through [spec-
ified] health care providers,” 38 U.S.C. § 1703(d)(1), which
include “[a]ny health care provider that is participating in
the Medicare program,” id. § 1703(c)(1), in certain enumer-
ated circumstances, including where “the covered veteran
and the covered veteran’s referring clinician agree that
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18 VAN DERMARK v. MCDONOUGH
furnishing care and services through a non-Department
entity or provider would be in the best medical interest of
the covered veteran based upon criteria developed by the
Secretary,” id. § 1703(d)(1)(E); see also id. § 1703(a), (e).
This language clearly uses the “furnishing” phrase in the
broad sense now at issue. See id. § 1703(i) (addressing
“payment rates for care and services,” referring to Medi-
care rates (capitalization removed)).
The provision then uses additional language to address
the matter of VA-treater contracts for this indirect provi-
sion of care, seemingly (we need not here say definitively)
to require such contracts. See id. § 1703(h) (requiring the
Secretary to “enter into consolidated, competitively bid con-
tracts to establish networks of health care providers speci-
fied in . . . subsection (c) for purposes of providing sufficient
access to hospital care, medical services, or extended care
services”); id. § 1703A(a)(1)(A), (B) (stating that, in speci-
fied circumstances, the Secretary “may furnish such care
or service . . . through an agreement under this section,”
giving the agreement the name, “Veterans Care Agree-
ment”). If there is such a requirement, it is established by
language over and above the “furnishing” phrase. Such
provisions confirm that Mr. Van Dermark’s contract view
is not to be read into the phrase itself.
3
VA’s actions over time reflect the broad reading of the
“furnish” phrase at issue. In 1968, VA promulgated a reg-
ulation, under the heading “Payment or reimbursement of
the expenses of unauthorized hospital care and other med-
ical expenses,” approving VA reimbursement to certain
veterans for certain emergency medical treatment, related
to service-connected disabilities, received from non-VA fa-
cilities for which those veterans did not get authorization
from VA in advance of treatment. 33 Fed. Reg. 19,011 (Dec.
20, 1968) (38 C.F.R. § 17.80 (1968)). At the time, VA’s only
statutory authority for the regulation was its authority to
Case: 21-2225 Document: 61 Page: 19 Filed: 01/23/2023
VAN DERMARK v. MCDONOUGH 19
“furnish” care. 38 U.S.C §§ 610–612, 624 (1958). The re-
imbursement regulation rests on an understanding that
furnishing care includes paying for emergency care re-
ceived from non-VA facilities without prior VA involve-
ment. That action preceded Congress’s enactment of 38
U.S.C. § 1728 (then 38 U.S.C. § 628) in 1973, which ex-
panded VA’s approach and created a clearer statutory
foundation. Compare Pub. L. No. 93-82, § 106, 87 Stat. 179(1973), with 33 Fed. Reg. 19,011. See also S. Rep. No. 92-
776, at 29 (1972); S. Rep. No. 93-54, at 25 (1973) (similar).
In fact, the parties do not dispute two key facts about
VA’s longstanding practice relevant here. First, aside from
the treatment for service-connected disabilities where sub-
section (b) applies, and the situations covered by the Phil-
ippines-specific subsections, VA has not paid for treatment
abroad, even in the five decades or so after enactment of
§ 1728 (then 38 U.S.C. § 628) in 1973. See, e.g., S. Rep. No.
85-1469, at 5 (quoted above: “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.”). Second, VA has long paid for
treatment abroad where subsection (b) applies (or where
the Philippines subsections apply). Current 38 C.F.R.
§ 17.35(a) and (c)—with predecessors dating back as far as
1959, see 24 Fed. Reg. 8,327 (Oct. 14, 1959) (38 C.F.R.
§ 17.36); see also 33 Fed. Reg. 19,011 (1968 regulations 38
C.F.R. §§ 17.80, 17.84)—make clear that, under the For-
eign Medical Program, eligible veterans can submit claims
for payment for reimbursement for treatment received
abroad, if properly tied to a service-connected disability,
even if not authorized by VA in advance. When VA adopted
the current provision in 2018, it said that it was doing so to
“clarify” and “reflect current VA practice and statutory
Case: 21-2225 Document: 61 Page: 20 Filed: 01/23/2023
20 VAN DERMARK v. MCDONOUGH
authority.” 83 Fed. Reg. 29,447 (June 25, 2018); see 83 Fed.
Reg. 4,452 (Jan. 31, 2018) (proposed rule). 8
Mr. Van Dermark’s position, which he acknowledges
would require alteration of VA practice, Oral Arg. at 1:00–
2:10, would represent a break with VA’s long practice both
8 See Van Dermark, 34 Vet. App. at 213–14; VA
Health Administration Center, Foreign Medical Program
Fact Sheet 01-17 (Nov. 2001), https://web.ar-
chive.org/web/20020922203959/http://www.va.gov/hac/fact
sheet/fspages/01-17fmpprovidersheet.pdf (“The Foreign
Medical Program (FMP) . . . provides reimbursement for
VA adjudicated service-connected conditions. . . . Claims
are reviewed to determine whether the medical care pro-
vided is related to the service-connected condition.”); VA
Health Administration Center, Foreign Medical Program
Fact Sheet 01-5 (Nov. 2001), https://web.ar-
chive.org/web/20020922204000/http://www.va.gov/hac/fact
sheet/fspages/01-05fmp.pdf (“The FMP is a program for
veterans who live or travel overseas. Under the FMP, Vet-
erans Affairs will pay 100% of the charges for any health
care the veteran needs that is associated with a service con-
nected disability.”); VA Health Administration Center,
Foreign Medical Program (Aug. 2001) (explaining that
FMP is for “US veterans with VA-rated service-connection
conditions who are residing or traveling abroad (Canada
and Philippines excluded),” under which “VA assumes pay-
ment responsibility for certain necessary medical services
associated with the treatment of those service-connected
conditions”); VA, Federal Benefits for Veterans and De-
pendents (Jan. 1981) (“The Veterans Memorial Hospital in
Manila is the only overseas hospital where VA-paid care is
available to veterans with nonservice-connected disabili-
ties.”).
Case: 21-2225 Document: 61 Page: 21 Filed: 01/23/2023
VAN DERMARK v. MCDONOUGH 21
of not paying for non-service-connected-disability emer-
gency treatment abroad and of paying (without contracts)
for service-connected-disability treatment abroad. That
consequence provides additional reason to reject Mr. Van
Dermark’s interpretation. See National Labor Relations
Board v. Noel Canning, 573 U.S. 513, 525 (2014) (“The
longstanding practice of the government can inform our de-
termination of what the law is.” (cleaned up)).
4
Mr. Van Dermark points to other provisions within
chapter 17 of Title 38 of the U.S. Code for support for his
view, either because they use “furnish medical services” or
a similar phrase to refer only to the direct treatment pro-
viders to whom a patient owes payment for the treatment
or because they refer to VA contracts with the treaters (or
their principals). Such provisions do not alter the conclu-
sion about the meaning in § 1724. The essence of the con-
text-dependency principle most recently stated in Return
Mail, as quoted above, is that a term with one meaning in
one provision can take on a different meaning in a different
provision that contains surrounding words that require the
different meaning. That principle differentiates the “fur-
nish” provisions on which Mr. Van Dermark relies from
§ 1724. And the “contract” provisions to which he points
depend not on a narrow meaning of the “furnish” phrase
but on additional language for their contract prescriptions.
Sections 1725 and 1728 contain surrounding words
that establish they use “furnish,” with “treatment” as the
object, to refer to the direct provision (and only the direct
provision) of emergency treatment. Section 1728 permits
VA to, “in lieu of reimbursing [an eligible] veteran,” directly
pay “the hospital or other health facility furnishing the
emergency treatment.” 38 U.S.C. § 1725(b)(1). And § 1725
speaks expressly of “reimburse[ment]” for the reasonable
value of the emergency “treatment furnished,” id
§ 1725(a)(1); see id. § 1725(b). The same is true of 38 U.S.C.
Case: 21-2225 Document: 61 Page: 22 Filed: 01/23/2023
22 VAN DERMARK v. MCDONOUGH
§ 1720J(a), which directs the Secretary, in a three-item list,
to “furnish emergent suicide care to an eligible individual
at a medical facility of the Department,” to “pay for emer-
gent suicide care provided to an eligible individual at a non-
Department facility,” and to “reimburse an eligible individ-
ual” for such non-VA-facility care. The “furnish” phrase
there, because of the surrounding words, refers to direct
provision.
Other provisions cited by Mr. Van Dermark are akin to
§§ 1703 and 1703A, discussed above, which authorize the
Secretary to furnish services through third-party providers
and which use additional language to authorize or perhaps
require contracts to do so. See 38 U.S.C. § 1712A(e)(1)
(granting the Secretary “the same authority to enter into
contracts or agreements with private facilities” when “fur-
nishing counseling and related mental health services un-
der subsections (a) and (b)”); id. at § 1720I(c)(1)–(2)
(granting the Secretary the authority “to enter into con-
tracts or agreements” pursuant to § 1703 “or any other pro-
vision of law” when “furnishing mental or behavioral
health care services” to certain individuals); id. at
§ 1720C(a), (b)(1) (granting the Secretary authority to “fur-
nish medical, rehabilitative, and health-related services in
noninstitutional settings” or eligible veterans “in need of[]
nursing home care” “solely through contracts with appro-
priate public and private agencies”); id. at § 1788(c) (grant-
ing the Secretary authority to “furnish to [a] live donor”
certain “care and services . . . at a non-Department facility
pursuant to an agreement entered into by the Secretary
under [Title 38]”). None of the provisions cited by Mr. Van
Dermark imply that, in § 1724, the “furnish” phrase is less
broad than we have concluded.
B
Having concluded that § 1724(a) prohibits the re-
quested VA payment for treatment abroad, we also con-
clude that the prohibition is not overridden by the later-
Case: 21-2225 Document: 61 Page: 23 Filed: 01/23/2023
VAN DERMARK v. MCDONOUGH 23
enacted §§ 1728 or 1725. Mr. Van Dermark contends that,
even if the “furnish” phrase in § 1724(a)’s prohibition in-
cludes “reimbursement,” §§ 1725 and 1728 conflict with the
prohibition and that the proper resolution of the conflict is
that §§ 1725 and 1728 govern. We reject that contention at
the threshold, finding no conflict needing to be resolved.
The threshold task is to determine if the provisions can
be harmonized.
When confronted with two Acts of Congress alleg-
edly touching on the same topic, this Court is not
at “liberty to pick and choose among congressional
enactments” and must instead strive “‘to give effect
to both.’” Morton v. Mancari, 417 U.S. 535, 551
(1974). A party seeking to suggest that two stat-
utes cannot be harmonized, and that one displaces
the other, bears the heavy burden of showing “‘a
clearly expressed congressional intention’” that
such a result should follow. Vimar Seguros y Rea-
seguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533
(1995). The intention must be “‘clear and mani-
fest.’” Morton, supra, at 551. And in approaching a
claimed conflict, we come armed with the “stron[g]
presum[ption]” that repeals by implication are “dis-
favored” and that “Congress will specifically ad-
dress” preexisting law when it wishes to suspend
its normal operations in a later statute. United
States v. Fausto, 484 U.S. 439, 452, 453 (1988).
Epic Systems v. Lewis, 138 S. Ct. 1612, 1624 (2018) (alter-
ations in original) (citations in original, but parallel cita-
tions omitted); see Scalia & Garner, Reading Law § 27, at
180 (“[T]here can be no justification for needlessly render-
ing provisions in conflict if they can be interpreted harmo-
niously.”).
Here, harmonization is straightforward. Section 1724
requires VA to furnish care abroad in limited circum-
stances and bars VA from furnishing care abroad in all
Case: 21-2225 Document: 61 Page: 24 Filed: 01/23/2023
24 VAN DERMARK v. MCDONOUGH
other circumstances. Section 1728 requires that VA reim-
burse certain veterans for emergency treatment they re-
ceive at non-VA facilities, under VA’s power to furnish care,
but there is no mention of treatment abroad. The same is
true of section 1725. The simple textual harmonization of
the three provisions is that §§ 1728 and 1725 do not apply
to treatment abroad when such treatment is outside the
limited authorization of § 1724(b) to furnish such treat-
ment.
There is, accordingly, no conflict of provisions that
must be resolved by reference to an identification of greater
specificity or on any other basis. And there is no occasion
to test §§ 1728 and 1725 against the presumption against
extraterritoriality.
III
For the foregoing reasons, we affirm the Veterans
Court’s decision, concluding that 38 U.S.C. § 1724(a) bars
VA from reimbursing Mr. Van Dermark for the treatment
he received abroad.
The parties shall bear their own costs.
AFFIRMED