Citation Nr: 1122249 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-39 103 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) South Central VA Health Care Network in Jackson, Mississippi THE ISSUE Entitlement to payment or reimbursement for medical services provided by University Medical Center, from June 8, 2008 to June 14, 2008, pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill Act). ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from May 1995 to May 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the South Central VA Health Care Network in Jackson, Mississippi. FINDINGS OF FACT 1. The Veteran was injured in an accident in June 2008 and was provided medical services provided by University Medical Center, from June 8, 2008 to June 14, 2008. 2. The Veteran was provided $1000.00 toward his medical bills form a third party, the landowner where the accident occurred. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services provided by University Medical Center, from June 8, 2008 to June 14, 2008, pursuant to the Millennium Bill Act have not been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2009); 38 C.F.R. §§ 17.1000, 17.1001, 17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). There are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has been held not to apply to claims based on allegations that VA decisions were clearly and unmistakably erroneous. Id. It has been held not to apply to claims that turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on interpretation of the law, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Court has also held that compliance with the VCAA is not required if additional evidence could not possibly change the outcome of the case. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). In another class of cases, remand of claims pursuant to VCAA is not required because evidentiary development has been completed. Wensch v. Principi, 15 Vet. App. 362, 368 (2001); Dela Cruz. Although Court said in Wensch that VCAA did not apply in such cases, it may be more accurate to say that VCAA applied, but that its notice and duty to assist requirements had been satisfied. When it is clear that there is no additional evidentiary development to be accomplished, there is no point in remanding the case. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). During the drafting of the VCAA, Congress observed that it is important to balance the duty to assist against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. For example, wartime service is a statutory requirement for VA pension benefits. Therefore, if a veteran with only peacetime service sought pension, no level of assistance would help the veteran prove the claim; and if VA were to spend time developing such a claim, some other veteran's claim where assistance would be helpful would be delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Senator. Rockefeller). In this case, application of the law to the facts is dispositive. Thus, the appeal must be terminated because there is no entitlement under the law to the benefit sought. See Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994). As such, no further action is required pursuant to the VCAA. The matter decided herein depends on whether the Veteran received payment from an insurance source toward the medical bills in question. There is no question that he did receive funds. Moreover, because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations may not be applicable to such claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding, the Board has reviewed the case for purposes of ascertaining that the claimant has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. Nevertheless, a VCAA notice was issued in August 2008. Millennium Bill The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." In this regard, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-1008. To be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, 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; (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; (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; (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 (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002. The Veteran was in an ATV accident on June 7, 2008. He indicates that he called the Sonny Montgomery VA Medical Center for treatment, but was told that since it was the weekend, there was no trauma unit and to seek emergency care elsewhere. He was then driven by a friend to the River Region Medical Center in Vicksburg. The emergency room physician called the VA facility and was told that they could not admit the Veteran. The Veteran states that he was then transported by ambulance to University Medical Center where surgery and follow-up treatment were performed during the time period in question. The Veteran's claim was originally denied on the basis that information was not received in a timely manner. However, it was later determined that all pertinent information had been received, but that since State Farm Insurance had paid the Veteran $1000.00, that VA could not reimburse him as he had private insurance. The Veteran has explained that the State Farm payment was made by the landowner's policy where the accident occurred. He maintains that he was unemployed and had no healthcare provider/insurance other than VA. Thus, he maintains that he had no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment per criterion (g) above. However, the Board notes that criterion (h) has not been met. The medical treatment in question was necessitated by an accident on another person's property. The Veteran was provided $1000.00 reimbursement from a homeowner insurance policy. Thus, he was paid monies by a third party and the Veteran, therefore, has not "without success" exhausted all claims and remedies reasonably available to him against a third party for payment of such treatment as he admits that the payment was made toward to the medical bills. See VA Form 9, dated August 2010. The Veteran's arguments are directed toward criterion (g); however, criterion (h) is not met. Here, he had contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, his liability to the provider, and he was paid $1000.00 pursuant to a homeowner insurance policy. 38 U.S.C.A. § 1725(b)(3)(C). Accordingly, his claim must be denied. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). ORDER Payment or reimbursement for medical services provided by University Medical Center, from June 8, 2008 to June 14, 2008, pursuant to the Millennium Bill Act is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs