Citation Nr: 1106002 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 09-31 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in South Central VA Health Care Network in Jackson, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred on August 22, 2008, and from August 28, 2008, to September 18, 2008, at Freeman Cancer Institute in Joplin, Missouri. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty from January to June 2005 and from June 2006 to May 2007. This appeal to the Board of Veterans' Appeals (Board) is from a decision of the Department of Veterans Affairs (VA) South Central VA Health Care Network (VA HCS), which is the agency of original jurisdiction (AOJ), in Jackson, Mississippi. The Veteran initially requested a Travel Board hearing, but subsequently withdrew this request in writing in November 2009. 38 C.F.R. § 20.704(e) (2010). FINDINGS OF FACT 1. The Veteran has been service-connected for both testicular cancer and a left orchiectomy, but only effective from December 8, 2008. No other disabilities were service-connected prior to that date. 2. The Veteran received outpatient radiation therapy to treat his testicular disabilities on multiple instances during the period from August 22, 2008, to September 18, 2008, at the Freeman Cancer Institute in Joplin, Missouri. The Veteran did not have any adjudicated service-connected disabilities in effect at the time of these private radiation treatments. 3. There is no contention or indication that any of the radiation therapy at the Freeman Cancer Institute during August 2008 to September 2008 was provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. Rather, it appears the Veteran received treatment on an outpatient basis. CONCLUSION OF LAW The criteria are not met for payment or reimbursement of the unauthorized medical expenses incurred on August 22, 2008, and from August 28, 2008 to September 18, 2008, at Freeman Cancer Institute in Joplin, Missouri. 38 U.S.C.A. §§ 1703(a), 1725, 1728, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.52(a), 17.1000-17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Since the Veteran's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the respective claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See, too, VAOPGCPREC 5-2004 (June 23, 2004). The Veteran has appealed the AOJ's determination denying payment or reimbursement of the medical services he received at the Freeman Cancer Institute in Joplin, Missouri, during August 2008 to September 2008. In particular, he received radiation therapy as ongoing treatment for testicular cancer on August 22, 2008, and multiple other radiation treatments during the period from August 28, 2008, to September 18, 2008, at the Freeman Cancer Institute in Joplin, Missouri. The medical reimbursement claim process was initiated in December 2008 by Bethesda Cancer Center, an affiliate of Freeman Cancer Institute, and the ensuing appeal has been continued by the Veteran. The Veteran states that he unsuccessfully attempted to receive treatment for his testicular cancer problems from the VA outpatient clinic in Mount Vernon, Missouri, but allegedly could not obtain an appointment. He adds that he was told by his private physician that his testicular problems were "fast growing" and that he needed to have his left testicle removed that week. He states that he was told he needed 15 radiation treatments. Private treatment records show he underwent a left orchiectomy to treat a growing testicular cancer on July 31, 2008, following which he underwent the radiation therapy in question. Under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are incapable of furnishing economical hospital care or medical services because of geographic inaccessibility or are incapable of furnishing care or services required, VA may contract with or authorize non-VA facilities for care. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.52(a) (2010). When, as here, a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether he has an adjudicated service-connected disability. Under 38 U.S.C.A. § 1728, payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA, may be paid when the Veteran received care for: (a) an adjudicated service-connected disability; (b) nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (c) any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; or (d) any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in Sec. 17.48(j). 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 17.120(a) (2010). Concerning 38 U.S.C.A. § 1728, the Veteran is claiming that he had to obtain unauthorized radiation therapy from a private provider to treat his growing service-connected testicular cancer during various dates in August 2008 and September 2008. In that regard, the Board emphasizes that the Veteran has been service- connected for both testicular cancer and a left orchiectomy, which was initially rated at 100 percent, but only effective from December 8, 2008. With regard to whether the Veteran's claim for payment or reimbursement of the unauthorized medical expenses was timely filed, 38 C.F.R. § 17.126(b)(2) provides that VA payment may be made for care related to the service-connected disability received only within a 2-year period prior to the date the Veteran filed the original or reopened claim which resulted in the award of service connection but never prior to the effective date of the award of service connection within that 2-year period. Here, service connection was not established for either testicular cancer or left orchiectomy until December 2008, so the effective dates of the awards of service connection for testicular cancer and orchiectomy are several months after the pertinent treatments ceased in September 2008. Moreover, no other disabilities were service-connected prior to December 8, 2008. There is consequently no possibility that VA payment may be made under 38 U.S.C.A. § 1728 for an adjudicated service- connected disability (i.e., testicular cancer and residuals of left orchiectomy). Consequently, the only possible means to reimbursement of the unauthorized medical expenses in this case is by way of 38 U.S.C.A. § 1725, which pertains to treatment of disabilities that are not service-connected, pursuant to the Millennium Act. Under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Act), payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. The provisions of 38 U.S.C.A. § 1725 were changed by legislation that 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 word "shall" in the first sentence replaced the word "may." This made the payment or reimbursement by VA mandatory and non-discretionary if the requirements for such payment were satisfied. 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, all of the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). While the revised 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). Here, the claim for medical expense reimbursement was filed in December 2008. As such, it appears that the revised version of § 1725 applies to the instant case, although the result is the same regardless. That is, the Veteran fails to meet one of the key requirements for medical reimbursement claims under the promulgating regulatory provisions in 38 C.F.R. § 17.1002. Specifically, under 38 C.F.R. § 17.1002 (2010), the Veteran has to satisfy all of the following conditions to be eligible for reimbursement for a nonservice-connected disorder: (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 (in other words, 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, such as 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, as already explained, 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). These criteria under 38 C.F.R. §§ 17.1002 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]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met]. To prevail in this appeal, the Veteran must show that "the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public." 38 C.F.R. § 17.1002 (a). Without meeting this preliminary provision, the claim cannot prevail. In this immediate appeal, the Veteran has alleged that he required urgent, perhaps even emergent, medical attention in the form of immediate radiation therapy to treat his testicular cancer and residuals of a left orchiectomy from a private provider, the Freeman Cancer Institute in Joplin, Missouri. The December 2008 claim by the affiliated Bethesda Cancer Center provides billing information that confirms these unauthorized radiation therapies were provided on several repeated instances from August 22, 2008, to September 18, 2008. Even assuming arguendo that the Veteran's medical condition required "emergency treatment," the Board emphasizes that he was not provided emergency services in a hospital emergency department or a similar facility holding itself out as providing emergency care to the public. See 38 C.F.R. § 17.1002 (a). Indeed, from all indications in the medical record, the Veteran never sought his radiation therapies during August 22, 2008, to September 18, 2008 in a hospital emergency department or private facility offering emergency services. Rather, the medical records from Freeman Cancer Institute during this period show only outpatient treatment for his radiation therapies. Likewise, the billing summaries by the Bethesda Cancer Center for this period show medical bills for multiple medical procedures but do not denote any emergency room treatment or even emergent inpatient services. Indeed, there is no evidence that the Freeman Cancer Institute has an emergency department or provides emergency services of any sort to the public. Even the Veteran himself made no contention that he presented at an emergency room at Freeman Cancer Institute for any of his claimed medical expenses from August 2008 to September 2008. Since the Veteran does not meet all of the requirements of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002, particularly subsection (a), reimbursement is prohibited. The Board therefore need not discuss whether he meets any of the other criteria of this statute and regulation, as the failure to meet any of them precludes payment or reimbursement of unauthorized medical expenses. The Court has observed that, given the use by Congress of the conjunctive "and" in this statute and regulation, all of the requirements would have to be met before reimbursement could be authorized. See Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995). See also Hayes v. Brown, 6 Vet. App. 66 (1993) and Zimick v. West, 11 Vet. App. 45, 49 (1998). The Board is sympathetic to the Veteran's arguments, but unfortunately, is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The claim for payment or reimbursement of the unauthorized medical expenses incurred on August 22, 2008, and from August 28, 2008, to September 18, 2008, at Freeman Cancer Institute in Joplin, Missouri, is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs