Citation Nr: 0902000 Decision Date: 01/16/09 Archive Date: 01/22/09 DOCKET NO. 07-21 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Network Authorization and Payment Center in Fort Harrison, Montana THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at the McKay-Dee Hospital from June 20, 2005, to June 22, 2005. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 decision of the Department of Veterans Affairs (VA) Network Authorization and Payment Center in Fort Harrison, Montana that denied payment or reimbursement of medical expenses incurred by the veteran at McKay-Dee Hospital from June 20, 2005, to June 22, 2005. FINDINGS OF FACT The veteran was enrolled in the VA health care system on the date on which he received private treatment, but he had not been an active participant in the VA health care system during the 24 months prior to receiving the private treatment for which he seeks payment or reimbursement. CONCLUSION OF LAW The criteria for payment or reimbursement by VA of the cost of unauthorized medical services provided by the McKay-Dee Hospital from June 20, 2005, to June 22, 2005, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & 2008); 38 C.F.R. §§ 17.120, 17.1002 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION As this case concerns a legal determination as to whether the veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. § 1703, 1725, and 1728, the provisions of 38 U.S.C.A. §§ 5103, 5103A are not applicable. The provisions of 38 U.S.C. Chapter 17 and the relevant 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 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. 38 C.F.R. § 17.132. The veteran was notified of the decision and his appellate rights in October 2005 and provided with a the Statement of the Case in April 2007 that informed him of the evidence that VA had considered, the pertinent laws and regulations, and the reasons and bases for VA's decision. All pertinent evidence regarding the reported non-VA medical treatment in June 2005 has been obtained and associated with the claims file. Based upon the above analysis, the Board finds that VA has fulfilled its duty to assist the appellant in the development of the current claim. Reimbursement of Unauthorized Medical Expenses Congress has authorized the reimbursement for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. The first statute applies to veterans either service connected for at least one disability at the time they sought treatment or who were participants in a vocational rehabilitation program. The veteran does not contend, and it is not shown, that he is service-connected for any disability or is a participant in a vocational rehabilitation program. As such, payment or reimbursement under 38 U.S.C.A. § 1728 is not warranted. Payment or reimbursement for emergency services for non service-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000- 1008. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. The provisions of the Act became effective as of May 29, 2000. To be eligible for reimbursement under this authority the veteran has to satisfy all of the following conditions: (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 before hand 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 transferred to a VA or other Federal facility; (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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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. As noted, the veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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. These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The provisions of 38 U.S.C.A. §§ 1725 and 1728 were changed via legislation which became effective October 10, 2008. See Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § __, 122 Stat. 4110, __ (2008). Specifically, the change of interest is that the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary, if the veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. While the provisions became effective when the law was signed on October 10, 2008, there was no specific effective date or applicability date indicated for the provision. There is a general presumption against the retroactive effect of new statutes. Landgraf v. USI Film Products, 511 U.S. 244 (1994). Under both the former and revised versions of § 1725, the definition of the term "active Department health-care participant" was and is defined as a veteran enrolled in the health care system established under section 1705(a) of this title who received care under this chapter within the 24- month period preceding the furnishing of emergency treatment. 38 U.S.C.A. § 1725(b)(2). Thus, although the veteran has not been apprised of the revised version of § 1725, the Board finds that there is no prejudice to the veteran by this Board decision as the statutory language relevant to the appeal was not revised. See Bernard v. Brown, 4 Vet. App. 384 (1993). Further, the Board need not here determine whether § 1725 as revised effective October 10, 2008, is to be given retroactive effect. Whether the version effective prior to October 10, 2008, or the version effective since October 10, 2008, is applied, the result is the same; as the appeal must be denied. The veteran is seeking reimbursement of payment of medical expenses he incurred at the McKay-Dee Hospital from June 20, 2005, to June 22, 2005, when he sought treatment for abdominal pain and was admitted for surgical treatment for a perforated sigmoid colon. Although the veteran was enrolled in the VA healthcare system at the time he was admitted to the McKay-Dee Hospital for emergency treatment, he had not received VA care within the 24-month period preceding the furnishing of this emergency treatment. In an August 2005 letter the veteran related that he had enrolled in the "VA hospital" in January 2005. He acknowledged not having received any VA care from his initial enrollment to the time he was admitted to the McKay-Dee Hospital on June 20, 2005. The Network Authorization and Payment Center in Fort Harrison, Montana conducted a search of VA records to ascertain if the veteran had received any VA care in the 24 months prior to his admission to the McKay-Dee Hospital and found that he had not. Under these circumstances, because the veteran did not receive any VA care in the 24 months prior to this admission, he does not qualify as an active Department health-care participant and the claim must be denied. The Board acknowledges the veteran's and his private physician's statements that following his admission to McKay- Dee Hospital he was denied admission to a VA facility due to lack of beds. However, as outlined above, the criteria necessary to establish this claim are conjunctive; thus the statutory and regulatory provisions pertaining to the feasibility of obtaining treatment at a VA or other Federal facility have no bearing on the current appeal. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at the McKay-Dee Hospital from June 20, 2005, to June 22, 2005, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs