Citation Nr: 1123471 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 06-34 290A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Lincoln, Nebraska THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Beatrice Community Hospital on December 2, 2005. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decision of a Department of Veterans Affairs (VA) Medical Center that denied the Veteran's claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred at Beatrice Community Hospital in Beatrice, Nebraska, on December 2, 2005. In September 2008 and June 2009, the Board remanded that claim for additional development. While the Veteran's medical expenses reimbursement claim was pending before the Board, he filed a separate claim for 38 U.S.C.A. § 1151 benefits, which was subsequently denied by the RO in Lincoln, Nebraska, and then appealed. That claim is addressed in a separate decision issued concurrently with this one. Additionally, the Board notes that, during the pendency of this appeal, the Veteran switched his representation from an attorney who is no longer authorized to represent VA claimants to the attorney listed on the title page of this decision. FINDINGS OF FACT 1. The Veteran is service connected for posttraumatic stress disorder (PTSD), rated 70 percent disabling, and is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. The Veteran underwent treatment for a nonservice-connected left shoulder disorder and for alcohol intoxication at Beatrice Community Hospital on December 2, 2005. 3. The evidence shows that the Veteran had other health care coverage under an insurance plan that would pay, in whole or in part, the costs of his December 2, 2005, private medical treatment. CONCLUSION OF LAW The criteria for entitlement to reimbursement for unauthorized medical expenses incurred on December 2, 2005, have not been met. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.93, 17.120, 17.161 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA facilities are not capable of furnishing the care or services required, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2010). The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2010); Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2010). Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For 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 § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) VA or other Federal facilities were not 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. 38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2010). All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). In this case, the evidence shows that the Veteran is service connected for PTSD, rated 70 percent disabling. However, the private medical treatment that he received on December 2, 2005, was not for PTSD but was instead for a nonservice-connected left shoulder disorder (chronic left shoulder pain associated with a prior surgery). In addition, the Board recognizes that the Veteran was simultaneously treated for acute alcohol intoxication. However, he has not established service connected for that disorder, either. Indeed, the Board observes that alcohol and drug use are not conditions for which service connection may be established on a direct basis. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). Rather, to qualify for service connection for such a condition, the Veteran must establish, by clear medical evidence, that the alcohol or drug use is secondary to or is caused by a primary service-connected disorder, and is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Significantly, the Veteran has not asserted, and the evidence of record does otherwise show, that his alcohol problems are associated with his service-connected PTSD. Thus, the Board concludes that none of the treatment that the Veteran received on the date in question was in any way related to a service-connected disability. Furthermore, the Veteran has not filed any claim that any alcohol problems are secondary to his service-connected PTSD. Additionally, the evidence of record does not show that the Veteran has a total disability, permanent in nature, resulting from a service-connected disability such that the treatment in question would qualify for reimbursement. 38 C.F.R. § 17.120(a)(3) (2010). While cognizant that the Veteran has been granted individual unemployability benefits based on his PTSD, the Board nevertheless observes that he has not been found to be permanently and totally disabled. Therefore, payment or reimbursement of medical expenses pursuant to 38 U.S.C.A. § 1728(a) must be denied. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-1008 (2010). To be eligible for reimbursement under that authority the Veteran must satisfy all of the following: (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; (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.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The Veteran is financially liable to the provider of that 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; (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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). If any one of the criteria is lacking, the benefit sought may not be granted. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2010); Zimick v. West, 11 Vet. App. 45 (1998); Malone v. Gober, 10 Vet. App. 539 (1997). In addition, a Veteran is required to file a claim 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. 38 C.F.R. § 17.1004 (2010). Here, the record shows that, on December 2, 2005, the Veteran reported to Beatrice Community Hospital with complaints of pain arising from a left shoulder injury for which he had undergone surgery two years earlier. Clinical evaluation revealed limited range of motion in the affected joint. Additionally, the Veteran was found to have a significantly elevated blood alcohol content. After an observation period, he was released later in the day on December 2, 2005, and advised to take Tylenol to control his shoulder symptoms. No subsequent complications were reported. The Board is sympathetic to the Veteran's contentions that the left shoulder pain and alcohol intoxication for which he was treated on December 2, 2005, were emergent conditions that required immediate medical attention and could not wait for treatment at a VA facility. Additionally, the Board recognizes that the Veteran had enrolled in the VA health care system and had been receiving medical services pursuant to 38 U.S.C.A. Chapter 17 within the 24-month period preceding the treatment in question. The Board also acknowledges that the Veteran's claim for medical care reimbursement was submitted within 90 days of treatment and, thus, is considered timely. 38 C.F.R. § 17.1004 (2010). Nevertheless, the Board observes that a Veteran is only considered to be personally liable for treatment if he has no entitlement to care or services under a health-plan contract. Critically, with respect to the claim at issue, such a health plan 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 expense of such services are paid or coverage provided by the Medicare program administered by the Social Security Administration(SSA). 38 U.S.C.A. § 1725(b)(3)(B), (f)(2)(A)(B) (West 2002). Here, pursuant to the Board's September 2008 and June 2009 remands, the RO obtained the Veteran's complete claims folder, which shows that he was awarded SSA disability benefits, effective May 1998, and was in receipt of Medicare A and B coverage at the time of his private emergent care treatment on December 2, 2005. Having established that the Veteran was covered under a health-plan contract for payment or reimbursement, in whole or in part, on the date of treatment at Beatrice Hospital, the Board finds that he is ineligible to receive payment or reimbursement for that treatment from VA. Accordingly, the Board need not address the remaining criteria of eligibility for payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1725 and its implementing regulations. In the absence of evidence showing that the Veteran meets the criteria for payment or reimbursement of non-VA medical services, either on the basis of eligibility under 38 U.S.C.A. § 1728 or under 38 U.S.C.A. § 1725, the Board finds that payment or reimbursement of those services is not warranted. The Board lacks authority to award medical care benefits except as authorized by statute and regulations. The Board finds that the preponderance of the evidence is against the Veteran's claim and that claim must be denied. Finally, the provisions regarding VA's duties to provide notice and assistance to claimants have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534 (2002). (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Beatrice Community Hospital on December 2, 2005, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs