Wilmering v. West

Wilmering v. West, 12 Vet. App. 394, decided 1999-06-11.

ORDER

PER CURIAM: On August 30, 1996, the appellant filed pro se a Notice of Appeal (NOA) as to an August 16, 1996, decision of the Board of Veterans’ Appeals that ordered as follows: “Evidence of a legally meritorious claim not having been submitted, the claim of entitlement to authorized [Department of Veterans Affairs (VA) ] *395outpatient care on June 7,1993, and inpatient care provided from April 19 through April 22, 1993, and from November 29 through December 7, 1993, is dismissed.” Record (R.) at 6. The appellant has filed through counsel a brief, asserting that his claim is not one for an award of benefits but that VA should be estopped from requiring him to pay for VA medical treatment already received on the ground that he was misled by VA employees into believing that that treatment would be without cost. The Secretary has filed a brief, and the appellant has filed a reply brief.

The Court notes, however, that neither the appellant nor the Secretary has addressed the question whether 38 U.S.C. § 5302 (waiver of recovery of payments where such recovery would be “against equity and good conscience”) might have applicability to this case.

On consideration of the foregoing, it is

ORDERED that, not later than 30 days after the date of this order, the appellant file, and serve on the Secretary, a memorandum addressing the potential applicability of 38 U.S.C. § 5302 to this case. It is further

ORDERED that, not later than 30 days after service of the appellant’s memorandum, the Secretary file a memorandum in response.

Wilmering v. West, 13 Vet. App. 199, decided 1999-12-03.

*200ORDER

PER CURIAM: On May 25,1999, the Court ordered that the case be submitted to a panel and that oral argument be scheduled. On June 11, 1999, the Court ordered supplemental briefing regarding the applicability of the waiver process under 38 U.S.C. § 5302 to a Department of Veterans Affairs adjudication of indebtedness for medical care. On August 2, 1999, the appellant filed a memorandum, and the Secretary filed one on November 3, 1999, that completed the briefing process. The parties agree in their memoranda that a section 5302 waiver would be available for such purpose, and the Secretary conceded (Memorandum (Memo.) at 3) that the appellant had, at least implicitly, sought such a waiver (R. at 229). In addition, on July 30, 1999, the appellant submitted a request for such a waiver. Aug. 2, 1999, Memo., Attachment.

On consideration of the foregoing, it is

ORDERED that a telephonic settlement conference will be scheduled by the Court at the convenience of the parties, but no later than December 23, 1999, to be conducted by the Court’s Central Legal Staff. The purpose of the conference is to discuss the applicability of the 38 U.S.C. § 5302 waiver process to the settlement of this case. The parties are notified that the Court will proceed to schedule oral argument if a settlement is not forthcoming. It is further

ORDERED that, not later than January 4, 2000, the appellant and the Secretary each provide a status report, or a joint status report, on the results of the conference and the progress of the settlement negotiations.