Citation Nr: 1125064	
Decision Date: 07/01/11    Archive Date: 07/14/11

DOCKET NO.  08-00 245A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to payment of, or reimbursement for, unauthorized private medical expenses incurred at a non-VA medical facility, for services rendered on July 22, 2005.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Sherrard, Associate Counsel

INTRODUCTION

The appellant is seeking benefits as the surviving spouse of the late Veteran, who had active service from September 1965 to April 1970.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2006 decision by the above Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC).  

On the January 2008 VA Form 9, the appellant's representative requested a hearing before the Board.  The hearing was scheduled for August 10, 2009, at the Phoenix RO.  However, the appellant contacted VA via telephone on August 7, 2009, stating that she did not receive notice in enough time to be able to take off work to appear for the hearing.  Another hearing was scheduled for December 1, 2009.  The appellant contacted VA via telephone and facsimile on the day of the hearing stating that she was unable to attend the hearing since she was travelling the week prior and could not travel again for the hearing.  No request for postponement was received and granted prior to the hearing date.  Under 38 C.F.R. § 20.704(d), when an appellant fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn.  Because the appellant did not provide timely notice of her unavailability to appear for the hearing, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review.  See 38 C.F.R. § 20.702(d). 


FINDINGS OF FACT

1.  The Veteran received treatment at a private facility, Salina Regional Health Center, on July 22, 2005, for a non-service-connected disability, without first obtaining VA approval to receive such treatment at Government expense.

2.  A VA facility was feasibly available to admit and treat him.


CONCLUSION OF LAW

The criteria for payment or reimbursement for the cost of unauthorized private medical expenses incurred on July 22, 2005, at Salina Regional Health Center have not been met.  38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 17.1000-17.1002, 17.1005 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim."  Mason v. Principi, 16 Vet. App. 129, 132 (2002).  Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable.  Id.  The U.S. Court of Appeals for Veterans Claims (Court) has held that, when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002).  See also VAOPGCPREC 5-2004 (June 23, 2004). 

Because the law is dispositive in the instant appeal, the Board finds that the provisions of the VCAA are not applicable to this appellant's claim.  Nonetheless, we do note that a letter was sent to the appellant in September 2007 advising her of the type of evidence needed to support her claim and VA's duty to assist her in obtaining evidence.  In addition, the September 2007 Statement of the Case (SOC) included the laws and regulations pertaining to entitlement to payment or reimbursement for medical expenses incurred at a non-VA facility.  The appellant was given an opportunity to submit additional evidence after issuance of the September 2007 SOC.  Moreover, neither she nor her representative has identified any additional pertinent evidence which should have been obtained.  

The Board concludes that no further notification or development of evidence is required.  Therefore, 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 benefits flowing to the appellant.  The Court of Appeals for Veteran Claims has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Payment/Reimbursement

A.  Applicable Law

There are two sections of the United States Code under which a veteran may receive payment or reimbursement of private medical/hospital expenses which were not pre-approved by VA authorized personnel. 

First, under 38 U.S.C.A. § 1728(a) (West 2002 & Supp. 2010), as implemented by 38 C.F.R. § 17.120 (2010), such payment or reimbursement is available where - 

(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)) (2000); 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.

As to the above criteria, the Court of Appeals for Veterans Claims has held that, given the use by Congress of the conjunctive "and," "all three statutory requirements would have to be met before reimbursement could be authorized."  Malone v. Gober, 10 Vet. App. 539, 542 (1997).

Second, under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2010), as implemented by 38 C.F.R. §§ 17.1000-1003 (2010), enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law No. 106-177, 113 Stat. 1553 (1999) (effective from May 29, 2000), to be entitled to the payment for emergency care, the evidence must meet all of the following criteria:

(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. 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.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).

With regard to questions of payment for expenses which have not been pre-authorized, whether a "medical emergency" exists is a medical question best answered by a physician.  See Cotton v. Brown, 7 Vet. App. 325, 327 (1995).  

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

B.  Facts and Analysis

The record shows that the Veteran was treated at Salina Regional Health Center (SRHC), a non-VA facility, July 22, 2005, after suffering a fall.

An Emergency Physician Record from SRHC indicates the Veteran was going up a flight of stairs when he fell to the right against the wall, and then fell down, injuring his right shoulder, neck, and lower back.  At the time of admission, his pain was described as mild to moderate in severity.  There was no evidence of head trauma, and his vital signs were normal.  He denied loss of consciousness at the time of the fall.  A cervical collar had been placed.  However, X-rays of the cervical and lumbar spine and the right shoulder showed no definite evidence of fracture.  He was diagnosed with cervical and lumbar strains and a right shoulder contusion, and was discharged the same day.     

When the appellant sought payment for the costs of that hospitalization and treatment, the M&ROC had a Clinical Review and Assessment performed in April 2006, and the determination was that the Veteran's medical condition did not prevent him from traveling to the nearest VA facility, and that a VA facility was feasibly available to provide the services rendered at SRHC.  VA therefore denied payment or reimbursement for treatment rendered at SRHC on July 22, 2005, on the basis that the Veteran could have been taken to a VA facility instead.  

The M&ROC thereafter obtained a Physician Review in August 2006, which also resulted in the conclusion that a VA facility was feasibly available on July 22, 2005.  In a second, August 2006 decision, VA again denied payment or reimbursement for treatment at SRHC.  

The Board notes that the Veteran meets the initial criteria for payment or reimbursement of medical expenses under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, as he had a total service-connected disability rating for PTSD.    

With further regard to the above regulation at 38 C.F.R. § 17.120, the Board is aware that its authorizing statute, 38 U.S.C.A. § 1728 was amended by the Veterans' Mental Health and Other Care Improvements Act of 2008, Public Law No. 110-387, § 402, 122 Stat. 4110 (2008), which in pertinent part added a new 38 U.S.C.A. § 1728(c):  "In this section, the term "emergency treatment" has the same meaning given such term in section 1725(f)(1) of this title."  That amendment has not yet been incorporated into the regulation.  In any event, it does not affect the disposition herein, because, as noted above, the availability of a VA facility rules out application of 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120. 

Public Law No. 110-387 also expanded one of the criteria which defines the meaning of "emergency treatment" to include treatment rendered (1) until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or . . . (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (B) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility.  Id.

The Board has also considered whether the Veteran met the criteria under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 for the treatment rendered to him on July 22, 2005.  As above, the legislative change has not yet been incorporated into the regulation, but, in light of the evidentiary record, as discussed below, it does not affect the disposition herein.

Namely, the feasible availability of a VA facility to provide treatment rules out payment or reimbursement under both 38 U.S.C.A. §§ 1725 and 1728.  Based on the August 2006 Physician Review and on medical records from SRHC, the Board finds that the weight of the evidence is against a finding that a VA or Federal facility was not feasibly available to the Veteran.  The August 2006 Physician Review indicates that a VA facility was available to provide treatment to him.  In addition, there is no indication in the medical records from SRHC that the Veteran could not have been taken to a VA facility, nor is there any indication that an attempt to contact VA was made.    

The Board acknowledges the appellant's contention in a November 2007 statement that the Veteran's medical condition was too severe to take him to the nearest VA facility in Wichita.  However, the April 2006 Clinical Review and the August 2006 Physician Review indicate he was stable enough to be taken to a VA facility.  These assessments were conducted by a nurse and a physician, respectively, who have the professional credentials to make a determination as to medical stability and the feasibility of safely transporting the Veteran to a VA facility.  The appellant has not been shown to possess such credentials, and as a layperson, cannot render an opinion as to whether he was medical stable enough to be taken to a VA facility.  See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  

The Board is sympathetic to the appellant's contentions, and with the loss of her husband; however, the Board cannot grant the appellant's claim unless the facts of the case meet all the requirements under 38 C.F.R. § 17.1002 or 17.120.  Because of the requirement in the law that a VA facility be unavailable under 38 C.F.R. § 17.1002(c) and 17.120(c), 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 appellant's claim is without legal merit.


ORDER

Entitlement to payment of, or reimbursement for, unauthorized private medical expenses incurred at a non-VA medical facility, for services rendered on July 22, 2005, is denied.



____________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs