Citation Nr: 0810882	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  06-00 343A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Iowa City, 
Iowa


THE ISSUE

Entitlement to payment or reimbursement of private medical 
expenses on September 21, 2004, at Dewitt Community Hospital.


ATTORNEY FOR THE BOARD

J. M. Macierowski, Associate Counsel




INTRODUCTION

The veteran served on active duty from November 1966 to 
October 1968.  This matter comes before the Board of 
Veterans' Appeals (Board) on appeal from the Department of 
Veterans Affairs (VA) Medical Center (MC) in Iowa City, Iowa.


FINDINGS OF FACT

1.  The veteran incurred medical expenses for treatment for a 
nonservice-connected disorder rendered on September 21, 2004, 
at Dewitt Community Hospital.

2.  At the time of the veteran's hospitalization in September 
2004, the veteran carried health care insurance with 
Accountable Health Plans.


CONCLUSION OF LAW

The requirements for entitlement to payment or reimbursement 
of all private medical expenses on September 21, 2004, at 
Dewitt Community Hospital, have not been met.  38 U.S.C.A. §§ 
1703, 1725, 1728, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
17.52, 17.120, 17.1000, 17.1002, 17.1003 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the provisions of the Veterans Claims Assistance Act of 
2000, VA has certain notice and assistance requirements.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 
(2007).  The VCAA, with its expanded duties, is not 
applicable to cases involving the waiver of recovery of 
overpayment claims, as the statute at issue in such cases is 
not found in Title 38, United States Code, Chapter 51 (i.e. 
the laws changed by VCAA).  Barger v. Principi, 16 Vet. App. 
132 (2002).  Similarly, the statute at issue in this matter 
is not found in Chapter 51, but rather, in Chapter 17.  
However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 
(2005), although not explicitly stated, the United States 
Court of Appeals for Veterans Claims (Court) appeared to 
assume that the VCAA was applicable to a Chapter 17 claim, 
but then held that the failure to comply with the VCAA notice 
requirements in that case constituted nonprejudicial error.

The provisions of Chapter 17 of Title 38 of the United States 
Code, as well as Part 17 of Title 38 of the Code of Federal 
Regulations, contain their own notice requirements.  
Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication 
of claims for reimbursement of unauthorized medical expenses.  
According to 38 C.F.R. § 17.124, the veteran has the duty to 
submit documentary evidence establishing the amount paid or 
owed, an explanation of the circumstances necessitating the 
non-VA medical treatment, and "other evidence or statements 
that are deemed necessary and requested for adjudication of 
the claim."  When a claim for payment/reimbursement of 
unauthorized medical expenses is disallowed, VA is required 
to notify the claimant of its reasons and bases for denial, 
his or her appellate rights, and to furnish all other 
notifications or statements required by Part 19 of Chapter 
38.  38 C.F.R. § 17.132.

In this case, the veteran was sent a letter in January 2006 
advising him of the information necessary to substantiate his 
claim as well as notifying him of all relevant procedure and 
appellate rights.  The VAMC has explained to the veteran the 
bases for denial of the claim, and afforded him the 
opportunity to present information and evidence in support of 
the claim.  There is no indication that any additional notice 
or development would aid the veteran in substantiating his 
claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 
2006).  Thus, any deficiency of notice or of the duty to 
assist constitutes merely harmless error.  See Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  In the circumstances of 
this case, additional efforts to assist or notify him in 
accordance with the VCAA would serve no useful purpose.  See 
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict 
adherence to requirements in the law does not dictate an 
unquestioning, blind adherence in the face of overwhelming 
evidence in support of the result in a particular case; such 
adherence would result in unnecessarily imposing additional 
burdens on VA with no benefit flowing to the veteran); 
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which 
would only result in unnecessarily imposing additional 
burdens on VA with no benefit flowing to the veteran are to 
be avoided).  VA has satisfied its duties to inform and 
assist the veteran at every stage of this case.  

VA may contract with non-VA facilities to provide medical 
services for which VA may assume financial responsibility in 
certain circumstances.  38 U.S.C.A. § 1703(a) (1)-(8); 38 
C.F.R. § 17.52.  However, the veteran in this case is not 
alleging that VA contracted with Dewitt Community Hospital 
for his medical treatment.  

The veteran asserts that the September 2004 hospitalization 
in question constituted a medical emergency.  Moreover, he 
argues that although he has private medical insurance, his 
policy includes a $3,000.00 deductible, an amount greater 
than amount payable for services rendered.  Thus, he states 
that even though he is enrolled in a private insurance 
policy, he had to pay the entire amount of medical expenses 
for the September 2004 date in question on his own.  For 
these reasons, he seeks reimbursement.   

To the extent allowable, payment or reimbursement of the 
expenses of care, not previously authorized, in a private or 
public (or Federal) hospital not operated by VA, or of any 
medical services not previously authorized including 
transportation (except prosthetic appliances, similar 
devices, and repairs) may be paid on the basis of a claim 
timely filed, under the following circumstances:

(a) For veterans with service connected 
disabilities.  Care or services not 
previously authorized were rendered to a 
veteran in need of such care or 
services: (1) For an adjudicated 
service-connected disability; (2) For 
nonservice-connected disabilities 
associated with and held to be 
aggravating an adjudicated service-
connected disability; (3) For any 
disability of a veteran who has a total 
disability permanent in nature resulting 
from a service-connected disability; (4) 
For any illness, injury or dental 
condition in the case of a veteran who 
is participating in a rehabilitation 
program under 38 U.S.C. Ch. 31 and who 
is medically determined to be in need of 
hospital care or medical services for 
any of the reasons enumerated in § 
17.48(j); and 

(b) In a medical emergency.  Care and 
services not previously authorized were 
rendered in a medical emergency of such 
nature that delay would have been 
hazardous to life or health, and

(c) When Federal facilities are 
unavailable.  VA or other Federal 
facilities were not feasibly available, 
and an attempt to use them beforehand or 
obtain prior VA authorization for the 
services required would not have been 
reasonable, sound, wise, or practicable, 
or treatment had been or would have been 
refused.

38 C.F.R. § 17.120; see also 38 U.S.C.A. § 1728(a) (1)-(3).  

All three statutory requirements must be met before 
reimbursement can be authorized.  Zimick v. West, 11 Vet. 
App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 
(1997).  In this case, the record does not reflect that at 
the time of the medical services in question, service 
connection was in effect for any disability.  Thus, criterion 
(a) is not satisfied.  Accordingly, the Board concludes that 
based on the evidence of record, the provisions of 38 C.F.R. 
§ 17.120 have not been met.

However, payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities may be 
authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-
1003.  To be eligible for reimbursement under this authority, 
all of the following conditions must be satisfied:

(a) The emergency services were 
provided in a hospital emergency 
department or a similar facility held 
out as providing emergency care to the 
public;

(b) The claim for payment or 
reimbursement for the initial 
evaluation and treatment is for a 
condition of such a nature that a 
prudent layperson would have reasonably 
expected that delay in seeking 
immediate medical attention would have 
been hazardous to life or health (this 
standard would be met if there were an 
emergency medical condition manifesting 
itself by acute symptoms of sufficient 
severity (including severe pain) that a 
prudent layperson who possesses an 
average knowledge of health and 
medicine could reasonably expect the 
absence of immediate medical attention 
to result in placing the health of the 
individual in serious jeopardy, serious 
impairment to bodily functions, or 
serious dysfunction of any bodily organ 
or part);

(c) A VA or other Federal 
facility/provider was not feasibly 
available and an attempt to use them 
beforehand would not have been 
considered reasonable by a prudent 
layperson (as an example, these 
conditions would be met by evidence 
establishing that a veteran was brought 
to a hospital in an ambulance and the 
ambulance personnel determined that the 
nearest available appropriate level of 
care was at a non-VA medical center);

(d) The claim for payment or 
reimbursement for any medical care 
beyond the initial emergency evaluation 
and treatment is for a continued 
medical emergency of such a nature that 
the veteran could not have been safely 
discharged or transferred to a VA or 
other Federal facility (the medical 
emergency lasts only until the time the 
veteran becomes stabilized); 

(e) At the time the emergency treatment 
was furnished, the veteran was enrolled 
in the VA health care system and had 
received medical services under 
authority of 38 U.S.C. Chapter 17 
within the 24-month period preceding 
the furnishing of such emergency 
treatment;

(f) The veteran is financially liable 
to the provider of emergency treatment 
for that treatment;

(g) The veteran has no coverage under a 
health-plan contract for payment or 
reimbursement, in whole or in part, for 
the emergency treatment (this condition 
cannot be met if the veteran has 
coverage under a health-plan contract 
but payment is barred because of a 
failure by the veteran or provider to 
comply with the provisions of that 
health-plan contract, e.g., failure to 
submit a bill or medical records within 
specified time limits, or failure to 
exhaust appeals of the denial of 
payment); 

(h) If the condition for which the 
emergency treatment was furnished was 
caused by an accident or work related 
injury, the claimant has exhausted 
without success all claims and remedies 
reasonably available to the veteran or 
provider against a third party for 
payment of such treatment; and the 
veteran has no contractual or legal 
recourse against a third party that 
could reasonably be pursued for the 
purpose of extinguishing, in whole or 
in part, the veteran's liability to the 
provider; and

(i) The veteran is not eligible for 
reimbursement under 38 U.S.C. 1728 for 
the emergency treatment provided (38 
U.S.C. 1728 authorizes VA payment or 
reimbursement for emergency treatment 
to a limited group of veterans, 
primarily those who receive emergency 
treatment for a service-connected 
disability).

See 38 C.F.R. § 17.1002.  

Under 38 C.F.R. § 17.1002(g), the term "health-plan 
contract" includes an insurance policy or contract, medical 
or hospital service agreement, membership or subscription 
contract, or similar arrangement under which health services 
for individuals are provided or the expense of such services 
are paid.  It also includes, but is not limited to, an 
insurance program described in section 1811 of the Social 
Security Act (42 U.S.C. 1395c), which refers to the Medicare 
program administered by the Social Security Administration, 
certain State plans for medical assistance, and workers' 
compensation laws or plans.  See 38 U.S.C.A. § 1725(f) (2); 
38 C.F.R. § 17.1001.

The evidence of record reveals that at the time of the 
medical treatment in question, the veteran had private health 
insurance coverage from Accountable Health Plans.  A Senate 
Report from November 10, 2005, reviewed and explained the 
current meaning of § 1725 stating that, "[u]nder current 
law, a veteran receiv[ing] emergency care in the private 
sector for a nonservice-connected condition can only be 
reimbursed if he or she has no other insurance coverage."  
S. Rep. No. 109-177, Veterans' Health Care Act of 2005 at 15 
(November 10, 2005).  That is, "...payment is...contingent 
on the veteran not having any other health insurance coverage 
for the service."  Id. at 13.  The report proposed an 
amendment to allow for reimbursement for veterans who only 
received partial reimbursement for medical expenses and who 
remain personally liable on the remainder of the medical 
bill.  To date, however, the proposed amendment has not been 
enacted and no other provision allows for such reimbursement.

The Board is bound by the law, and its decision is dictated 
by the relevant statutes and regulations.  Moreover, the 
Board is without authority to grant benefits simply because 
it might perceive the result to be equitable.  See 38 
U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. 
App. 416, 425 (1994).  Additionally, "no equities, no matter 
how compelling, can create a right to payment out of the 
United States Treasury which has not been provided for by 
Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 
(1992) (citing Office of Personnel Management v. Richmond, 
496 U.S. 414, 426 (1990)).  There simply is no provision in 
which the Board may grant the veteran the benefits sought.


ORDER

Payment or reimbursement of all private medical expenses at 
Dewitt Community Hospital on to September 21, 2004, is 
denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs