Citation Nr: 1120629 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 10-45 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred over the period of June 28, 2010, to July 6, 2010. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION Information with respect to the Veteran's period of active service is not of record. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 determination from the Department of Veterans Affairs Medical Center (VAMC) located in Gainesville, Florida, which denied the above claim. In a written statement accompanying his VA Form 9, the Veteran noted his numerous unsuccessful efforts to obtain representation in this matter. However, instead of requesting further assistance to obtain representation, he questioned how he could get someone to represent him when no one would return his calls, and then stated that he was "doing the only thing I can and that is to represent myself." Therefore, since the Board finds that a reasonable interpretation of the Veteran's statements is that because of his difficulty in obtaining representation the Veteran has decided to represent himself, the Board finds that there is no need to obtain further clarification from the Veteran in this regard. Accordingly, the Board will proceed to a review of the appeal on the merits. FINDINGS OF FACT 1. The care and services provided to the Veteran from non-VA medical providers during the period of June 28, 2010, to July 6, 2010, were not authorized in advance and were not for the purpose of treating an adjudicated service-connected disability. 2. The Veteran was entitled to benefits under a health plan contract as defined by law at the time he received the above treatment. CONCLUSION OF LAW The criteria for entitlement to reimbursement for the expenses associated with the private medical treatment received by the Veteran from private medical providers between June 28, 2010, and July 6, 2010, have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.120, 17.1000-.1008 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board would like to first point out that as this case will be decided as a matter of law based on essentially undisputed facts, the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010) (VCAA) is arguably not applicable here. Moreover, 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 non-prejudicial error. The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R Part 17, 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 an August 2010 letter advising him of the information necessary to substantiate his claim and all relevant procedure and appellate rights. The VAMC has explained to the Veteran alternative bases for denial of the claim, and has provided the Veteran with an 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. 2010). Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. 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); 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. In this case, however, the Veteran is not alleging that VA contracted with Orange Park Medical Center or any other private medical care provider who provided care to him between June 28, 2010, and July 6, 2010. The appellant is seeking entitlement to payment or reimbursement for private medical expenses incurred by appellant over the period of June 28, 2010, to July 6, 2010. More specifically, he asserts that it was his understanding that the fact that he had a private medical insurance plan did not preclude at least partial payment by VA of emergent care he received at the time of and following his admission to the Orange Park Medical Center on June 28, 2010, with a history of dyspnea and chest pain for the previous week, a temperature of 100, cough, and immediately prior symptom of tachycardia greater than 140 and chest pain radiating into the shoulder. The VAMC has denied payment of any private medical services rendered between June 28, 2010, and July 6, 2010, in treatment of the Veteran's symptoms during this period. In part, the VAMC made its decision based on the fact that some of the treatment had been paid by the Veteran's private medical insurance, a fact that is not in dispute. Turning first to the issue of entitlement to payment or reimbursement under the provisions of 38 U.S.C.A. § 1728, the record does not reflect that at the time of the medical services in question, service connection was in effect for any disability. Thus, the criterion found at of 38 U.S.C.A. § 1728(a)(2) is not satisfied. Accordingly, the Board concludes that based on the evidence of record, the provisions of 38 U.S.C.A. § 1728 have not been met. See also 38 C.F.R. § 17.120 (2010). 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 medical evaluation and treatment is for a condition of such a nature that a prudent layperson would have reasonably expected that any delay in seeking immediate medical attention would have been hazardous to his or her 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 medical 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). Under 38 U.S.C.A. § 1725, a veteran is only considered to be "personally liable" for treatment if he/she has no entitlement to care or services under a health-plan contract, which 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 expenses of such services are paid. 38 U.S.C.A. § 1725(b)(3)(B) and (f)(2)(A). As noted previously, the evidence of record, including the Veteran's own statements, indicates that he has private health coverage (Blue Cross) that has paid at least a portion of the medical expenses incurred over the period of June 28, 2010, to July 6, 2010. The Board finds that the definition of a health-care contract includes such an insurance plan. 38 U.S.C.A. § 1725(f)(2)(B). Thus, the criteria for reimbursement for the reasonable value of the subject medical treatment under the provisions of 38 U.S.C.A. § 1725 and its implementing regulations are not met. Consequently, the Board finds that the law and regulations in this case are dispositive, and prohibit the payment or reimbursement requested by the Veteran. See Sabonis, 6 Vet. App. at 430. As noted, a portion of the expenses for his treatment has already been paid under his private insurance plan. The fact that some of the bills were apparently not covered is not relevant under the foregoing statute and regulation. In addition, while the Veterans' Emergency Care Fairness Act (P.L. 111-137) provides that partial reimbursement may be warranted regarding payments still owed following partial payment made by a state mandated automobile reparations insurance, the instant case does not involve such circumstances. Clearly, Blue Cross does not constitute state mandated automobile reparations insurance. Accordingly, the Board concludes that the criteria for reimbursement of unauthorized medical expenses under 38 U.S.C.A. §§ 1725 and 1728 are not met. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred with private medical providers over the period of June 28, 2010, to July 6, 2010, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs