Citation Nr: 1120618 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 10-19 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Flowood, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized private medical expenses incurred on February 2, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 decisions of the above-referenced VA Medical Center (VAMC) and subsequent review by the South Central VA Health Care Network (SCVHCN) in Jackson, Mississippi. A transcript of the April 2010 videoconference hearing before the undersigned has been associated with the claims file. FINDINGS OF FACT 1. The care and services rendered to the Veteran at a non-VA medical facility on February 2, 2010, were not authorized in advance and were not for the purpose of treating an adjudicated service-connected disability. 2. Since January 2008, the Veteran has had coverage under a health-plan contract for payment or reimbursement of expenses incurred secondary to such care. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized private medical expenses incurred on February 2, 2010 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-1008 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify and assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). These changes, however, are not applicable to claims such as the one decided herein. See Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to certain cases, including for example those appeals involving the waiver of recovery of overpayment claims, because the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws affected by VCAA). Similarly, the statute at issue in the current matter is not found in Chapter 17. With regard to VA's duty to assist the Veteran, the Board notes that the development of medical evidence appears to be complete. Unlike many questions subject to appellate review, the issue of whether the Veteran is entitled to reimbursement or payment of medical expenses, by its very nature, has an extremely narrow focus. The facts underlying this case do not appear to be in dispute. Here, the only evidence necessary to decide the claim revolves around what transpired on February 2, 2010. This decision involves the medical records from that time period and the medical determination from the VAMC. Thus, evidence which is necessary to decide the case is already of record and, as explained in further detail in the following decision, the outcome of the case is mandated by the relevant law and regulations. Therefore, no amount of additional evidentiary development would change the outcome of the case. Indeed, the Veteran does not assert that there is additional evidence to be obtained or that there is a request for assistance that has not been acted on. The Board finds that the VA has complied with its duty to assist the Veteran with the development of the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the Board finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Law and Analysis The Veteran seeks reimbursement for the costs of private medical care received on February 2, 2010 for chest pain attributed to an acute coronary syndrome. At the time his established service-connected disabilities were posttraumatic stress disorder, rated as 50 percent disabling; as well as malaria and scars, each of which were rated as noncompensably disabling. It is neither contended, nor suggested by the record, that the Veteran had any prior authorization from VA to receive the medical care that he was provided on that date. The Veteran's claim for reimbursement was denied on the basis that the situation was non-emergent and that a VA medical facility was feasibly available to provide the same medical services rendered by the private hospital. After review of the evidence of record, the Board concurs with this decision. Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (West 2002). The Board notes that both 38 U.S.C.A. §§ 1728 and 1725 were amended by the Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110 (2008). The changes made do not include any critical to the circumstances of this case. Generally, to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy the following three conditions: (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)); 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. If any one of the foregoing requirements is lacking, the benefit sought may not be granted under 38 C.F.R. § 17.120. See also 38 U.S.C.A. § 1728; Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). In this case, the private medical treatment that the Veteran received on February 2, 2010, was not for a service-connected disability, but rather for nonservice-connected acute coronary syndrome, which was not associated with or aggravating an adjudicated service-connected disability. The evidence does not show that the Veteran has a total disability that is permanent in nature resulting from a service-connected disability, or that he is participating in a rehabilitation program. Thus, the Veteran fails to meet any of the first criterion under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, and reimbursement cannot be allowed under these provisions. In considering every possible theory of entitlement, the Board has considered whether reimbursement is warranted under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002. 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 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; (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). 38 C.F.R. § 17.1002 (2010). The relevant facts in this case are not in dispute. Pertinent records from Summit Medical Center show that, on February 2, 2010, the Veteran presented to the emergency room with complaints of severe chest pain. On examination he was pale, diaphoric, short of breath, and nauseated. An electrocardiogram (EKG) was abnormal. The clinical assessment was acute coronary syndrome. The Veteran was transferred to St. Edwards Mercy Medical Center for specialized cardiac care. The Board notes that there are no treatment records from this facility in the claims folder, but the Veteran testified at October 2010 Board hearing that he underwent surgery the next day. He also testified that he was covered by his wife's health insurance plan, but that it did not pay all of his expenses. He noted that the insurance company paid a portion (80 percent) of the bill and that the remaining balance and deductible were his responsibility. He contends that reimbursement for the expenses that he incurred is warranted. Evidence in the record confirms that the Veteran has been entitled to health care coverage under Novasys Health since January 2008. In April 2010, the Veteran's claim for payment of medical expenses was denied by the VAMC, on the basis that the Veteran had other health coverage as a means of payment for all, or part, of the private treatment provided. A subsequent reconsideration of the claim by the SCVHCN in April 2010 upheld this decision. In this case, the criteria for reimbursement for private medical expenses under the provisions of 38 U.S.C.A. § 1725 and its implementing regulations are not met. While the Board is sympathetic to the Veteran's plight, the information he has provided is insufficient to confer entitlement to payment for the expenses being considered in this appeal. The record clearly states that he is in receipt of medical insurance and indeed has been insured with Novasys Health since January 2008. The law is clear. VA is not authorized to pay or reimburse unauthorized medical expenses where a health-plan contract covers the cost of medical expenses either in whole or in part. 38 C.F.R. § 17.1002(g). The Veteran does not meet one of the criterion of § 17.1002. Reimbursement for any amount is prohibited, and the Board need not go into whether the Veteran meets any of the other criteria, as the failure to meet one of them precludes payment. The Board recognizes that financial difficulties arise from unexpected medical expenses. While the Board sympathizes with the Veteran's situation, the Board is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "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)). Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied. ORDER Entitlement to payment or reimbursement of unauthorized private medical expenses incurred on February 2, 2010 is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs