Citation Nr: 1007239 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-38 025A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Fort Harrison, MT THE ISSUE Entitlement to payment or reimbursement for the costs of non- VA hospitalization from July 3, 2006 to July 4, 2006 at Dixie Regional Medical Center in St. George, Utah REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1961 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 determination by the VA Medical Center (VAMC) in Fort Harrison, Montana. The Veteran was scheduled for a travel board hearing in October 2009 but failed to appear for the hearing. Accordingly, his request for a travel board hearing is deemed withdrawn. FINDINGS OF FACT 1. The Veteran received treatment at a private hospital from July 3, 2006 to July 6, 2006 for cardiac catheterization. 2. The Veteran is not service-connected for any disabilities. 3. At the time of the care, the Veteran had coverage under a health-plan contract for payment or reimbursement of expenses incurred secondary to such care 4. The Veteran did not file for reimbursement of his medical treatment until over 90 days after treatment. CONCLUSION OF LAW The criteria for reimbursement for the costs of non-VA hospitalization from July 3, 2006 to July 4, 2006 have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's duty to notify and duty to assist obligations had been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board observes that the appellant was not provided notice consistent with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) in connection with his current claim. However, the Board finds that it is the law, and not the evidence that is dispositive in this case, and as such, notice is not required in this case. In such situations, an opinion from the VA General Counsel has held that the VA is not required to provide notice of the information and evidence necessary to substantiate a claim or required to develop the evidence to substantiate a claim where that claim cannot be substantiated because there was no legal basis for the claim or because the undisputed facts render the claimant ineligible for the claimed benefit. See VAOGCPREC5-2004 (June 23, 2004). The United States Court of Appeals for Veterans Claims (Court) has also held that where the law, and not the underlying facts or development of facts are dispositive in a matter, the Veterans Claims Assistance Act can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534 (2002). The Board further notes that the Court has held that when there is an error in the notice, or in this case the absence of appropriate notice, there is no prejudice to a claimant as the result of the error if the benefit sought could not possibly have been awarded as a matter of law. Mayfield v. Nicholson, 19 Vet. App. 103 (121) (2005). II. Analysis Under 38 U.S.C.A. § 1728, generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that three criteria are met: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non- service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service- connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)) (2000); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were 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. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). The Veteran does not have any service-connected disabilities. The record does not indicate that this was an injury, illness, or dental condition in the case of a veteran who was participating in a rehabilitation program and who was medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i). Therefore, the veteran does not meet the requirements for 38 U.S.C.A. § 1728. As all three criteria must be met in order to establish entitlement to reimbursement for medical expenses under 38 U.S.C.A. § 1728, the Veteran cannot establish such reimbursement under this statute. See Zimick at 45, 49. As the Veteran does not meet the criteria of 38 U.S.C.A. § 1728, the Board will consider the criteria of 38 U.S.C.A. § 1725. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-1002 (2009). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, 113 Stat. 1556. To be eligible for reimbursement under this Act 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 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; (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 (2009). In addition, a veteran is required to file a claim within 90 days of the latest of the following: 1) July 19, 2001; 2) the date that the veteran was discharged from the facility that furnished the emergency treatment; 3) the date of death, but only if the death occurred during the stay in the facility that included the provision of the emergency treatment; or 4) the date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. See 38 C.F.R. § 17.1004 (2009). VA treatment records dated on June 22, 2006 noted that cardiac catheterization and coronary angiography were requested. VA records indicate that a cardiac catheterization procedure was scheduled at the San Diego VAMC for June 29, 2006. Records from Southwest Internal Medicine in St. George, Utah, dated on June 29, 2006, indicated that the Veteran was to be scheduled for an angiogram. On July 3, 2006, the Veteran was admitted to Dixie Regional Medical Center. He underwent coronary angioplasty on July 3, 2006 and was discharged from Dixie Regional Medical Center on July 6, 2006. In this case, the Veteran's claim must be denied. The Veteran's claim was not filed within 90 days of discharge, as required under § 17.1004. Additionally, because part of the treatment was covered by a healthcare plan, ASRM, the requirements set forth in § 17.1002 are not met. In order to establish entitlement to payment or reimbursement, all of the criteria enumerated in § 17.1002 must be satisfied. The law does not allow for reimbursement of private medical expenses under § 1725 when a veteran has at least partial payment or reimbursement. In conclusion, the Veteran filed his reimbursement claim more than 90 days after he was discharged from the hospital. The requirements for reimbursement under § 1725 are not satisfied because the Veteran had coverage under ASRM for payment of at least part of the services for which payment or reimbursement is sought. Accordingly, the claim for reimbursement lacks legal merit, and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment or reimbursement for the costs of non- VA hospitalization from July 3, 2006 to July 4, 2006 at Dixie Regional Medical Center in St. George, Utah is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs