Citation Nr: 1121801	
Decision Date: 06/06/11    Archive Date: 06/20/11

DOCKET NO.  09-13 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida


THE ISSUE

Whether the claim of entitlement to payment or reimbursement of costs incurred as a result of unauthorized medical treatment received from Manatee Lakewood Radiology, a non-VA medical provider, on September 2, 2008, was timely submitted.

REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

The Veteran served on active duty from January 1968 to October 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 adverse action by the Department of Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida, which is the Agency of Original Jurisdiction in this matter.

On his substantive appeal, received in March 2009, the Veteran requested a Board hearing, and such a hearing was scheduled for March 2011.  However, the Veteran did not appear at the hearing and did not provide a reason for his failure to appear.  As such, the Board considers his hearing request to have been withdrawn.

The certified issue on appeal is entitlement to payment of the cost of unauthorized medical expenses incurred on September 2, 2008.  VA denied the claim on the narrow question as to whether the Veteran timely submitted a complete application for the benefit sought.  Thus, the issue has been characterized accordingly.


FINDING OF FACT

The claim for payment or reimbursement of the costs associated with radiology care received on September 2, 2008, was received more than 90 days after the date of discharge from Manatee Memorial Hospital, and is therefore not timely submitted.


CONCLUSION OF LAW

Entitlement to payment or reimbursement for the costs incurred as a result of unauthorized non-VA radiology treatment received on September 2, 2008, is denied as a matter of law.  38 U.S.C.A. §§ 1725, 5107 (West 2002); 38 C.F.R. § 17.1004 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

In this case, the threshold issue is whether the Veteran's claim was submitted in a timely manner.  The basic facts in this case are not in dispute.  The Veteran presented to the emergency room at Manatee Memorial Hospital on August 28, 2008, with complaints of chest pain.  He was admitted, treated for an acute myocardial infarction, and discharged on September 4, 2008.  On his notice of disagreement, the Veteran indicated that his claim for reimbursement was approved for most of his hospital stay, however, in this appeal, he is specifically requesting payment or reimbursement for care he received from Manatee Lakewood Radiology on September 2, 2008.  

Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations.
Pertinent in this case, a reimbursement claim must be filed 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 (2010).

According to a March 9, 2009, letter, the VAMC denied the claim because it was not timely submitted.  Later in March 2009, the Veteran's notice of disagreement was received and stated that he should not be penalized for submitting his claim late because he had not received the billing statement from Manatee Lakewood Radiology until December 2, 2008.  He further noted that the bill submission was less than 5 days past the 90 days. 

According to the March 2009 statement of the case, VAMC indicated that the Veteran's claim, received on March 9, 2009, was not timely submitted.  

However, on his substantive appeal, received in April 2009, the Veteran indicated that the date of claim noted by the VAMC is incorrect.  Rather, the Veteran reported that he submitted his claim on December 10, 2008, and explained that he did not received a billing statement from Manatee Lakewood Radiology until December 2, 2008.  
The Board has reviewed the claims folder and is sympathetic to the Veteran's claim, however, the Board cannot grant the claim unless the facts of the case meet all the requirements under 38 C.F.R. §§ 17.10001-8, including the filing requirements under 38 C.F.R. § 17.1004.   Regardless of the Veteran's disagreement as to whether his claim was initially submitted on December 10, 2008, or March 9, 2009, both dates are not within 90 days of the date that he was discharged from Manatee Hospital.  As indicated, the record reflects that he was discharged from Manatee Memorial Hospital on September 4, 2008, which means he had 90 days from that date, or until December 4, 2008, to timely submit his claim.  Significantly, by the Veteran's own admission, he did not timely submit his claim.  As the Veteran did not meet the filing requirement under 38 C.F.R. § 17.1004(d), the Board must deny the claim.  Where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  For these reasons, the Board finds that the claim is without legal merit.

To the extent that the appellant suggests that VA had an obligation to inform it about its basic eligibility or ineligibility for reimbursement of the non-VA medical expenses, the remedy for breach of such obligation could not involve payment of benefits where statutory eligibility requirements for those benefits were not met.  See Harvey v. Brown, 6 Vet. App. 416, 424 (1994).


ORDER

The claim of entitlement to payment or reimbursement of costs incurred as a result of unauthorized medical treatment received from Manatee Lakewood Radiology on September 2, 2008, was not timely submitted; the claim is therefore denied.

____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs