Citation Nr: 1128085	
Decision Date: 07/27/11    Archive Date: 08/02/11

DOCKET NO.  10-36 337A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred from February 17-19, 2010.  




ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel 



INTRODUCTION

The Veteran reportedly served on active duty in the military from June 1951 to October 1952.

This appeal to the Board of Veterans' Appeals (Board) is from an April 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in Murfreesboro, Tennessee.

The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran has no adjudicated service-connected disabilities.

2.  From February 17-19, 2010, he received treatment at a hospital in Bowling Green, Kentucky, for complaints of acute chest pain and slurred speech.

3.  The treating physician there has indicated the nearest VAMC did not have any beds available, therefore, the Veteran had to remain a patient at this other hospital.

4.  However, he is in receipt of Medicare Part A benefits to assist him in paying for his medical expenses.


CONCLUSION OF LAW

The criteria are not met for payment or reimbursement of the unauthorized medical expenses in question incurred from February 17-19, 2010.  38 U.S.C.A. §§ 1703(a), 1725, 1728, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 17.52(a), 17.1000-17.1002 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist are Inapplicable to this Claim

Because this claim is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the laws pertaining to the duties to notify and assist and the implementing regulations are inapplicable to this claim.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004).  The Board nevertheless has reviewed the procedural history of this case to ascertain whether the Veteran has had a fair opportunity to present arguments and evidence in support of his claim.  And the Board concludes that deciding this appeal at this time would not be prejudicial to him.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that as the pleading party, the Veteran, not VA, has the burden of proof of showing there is a Veterans Claims Assistance Act (VCAA) notice or assistance error and, moreover, that it is unduly prejudicial - meaning outcome determinative of the claim).  See also 38 C.F.R. § 20.1102 (regarding nonprejudicial, i.e., harmless error).

Normally, upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information or evidence needed to substantiate the claim, including apprising him of whose specific responsibility, his or VA's, it is for obtaining this supporting evidence.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

A letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran, although a date is not listed on the letter indicating when it was sent.  This letter nonetheless duly informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence.


Therefore, he has been provided opportunity to submit evidence and argument in support of his claim and to respond to his notice.  That is say, he has had a meaningful opportunity to participate effectively in the adjudication of his claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

II.  Whether the Veteran is Entitled to Payment or Reimbursement of the Medical Expenses Incurred from February 17-19, 2010

Initially, in adjudicating a claim for payment or reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care at issue.  See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 17.54 (2010).  This is a factual, not medical, determination.  See Similes v. Brown, 5 Vet. App. 555 (1994).

The law provides that, in connection with its statutory obligation to provide medical services to a service member, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists.

Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "when [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 or 1712], may contract with non-Department facilities in order to furnish" certain care, including:  "[h]ospital 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 Department facility . . . until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility."  38 U.S.C. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2010).

The admission of a service member to a non-VA hospital at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54 (2010).  See Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care.").  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).

Here, there is no indication or suggestion the Veteran sought and obtained proper authorization for VA payment of the private medical expenses he incurred while at the hospital in question in Bowling Green, Kentucky.  And while it is true the treating physician apparently contacted the nearest VAMC only to learn there were no beds available, so as to have the Veteran transferred, it does not follow that authorization necessarily was given for the care he needed at this other hospital.  There simply is no such indication in the file, either that the Veteran received prior authorization under a fee-basis or contract arrangement, or even post hoc or after the fact once seen or admitted to this other hospital under the auspices that he had a medical emergency of such potentially grave nature that prior authorization could not have been obtained.

Accordingly, the Board must conclude that prior authorization was not obtained pursuant to 38 C.F.R. § 17.54 (2010), and that payment is unwarranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002).

Unauthorized Medical Expenses

When, as here, the issue is entitlement to payment or reimbursement of unauthorized medical expenses, there are two potentially applicable statutes, 38 U.S.C.A. § 1725 (the Millennium Act) concerning reimbursement for emergency treatment and 38 U.S.C.A. § 1728 concerning reimbursement of certain medical expenses.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.


The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has stated that one "avenue for potential relief for a Veteran entitled to VA care forced to obtain treatment at a non-VA facility is 38 U.S.C. § 1728, which provides that the Secretary 'may, under such regulations as the Secretary shall prescribe, reimburse 
. . . for the reasonable value of such care or services . . . for which such Veterans have made payment.'"  Malone v. Gober, 10 Vet. App. 539, 541 (1997), quoting 38 U.S.C.A. § 1728(a) (West 2002).

Such reimbursement is available only where (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a Veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service- connected disability, or (D) for any illness, injury, or dental condition in the case of a Veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.  38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2010).  See also Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Court has observed that, given the use by Congress of the conjunctive "and" in this statute, all three statutory requirements would have to be met before reimbursement could be authorized.  Malone, 10 Vet. App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993); Zimick v. West, 11 Vet. App. 45, 49 (1998).  That is to say, these criteria are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991).


The Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4123 (2008) amended 38 U.S.C. § 1728(a).  The amendment added § 1728(c), stating that in this section, the term "emergency treatment" has the meaning given such term in section 1725(f)(1) of this title.  The former standard under § 1728(a) was "such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health."  

Under § 1725(f)(1), "emergency treatment" means medical care or services furnished, in the judgment of the Secretary:

(A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; 

(B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and 

(C) until such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer, as further defined by the statute.

Thus, the definition of "emergency treatment" is now the same under 38 U.S.C. § 1728 and § 1725.  Additionally, the amending law did not indicate a specific effective or applicability date for this change, so a discussion of such may be necessary.  38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.  See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003); and VAOPGCPREC 3-2000 (Apr. 10, 2000).

But since the Veteran does not have any adjudicated service-connected disabilities, 38 U.S.C.A. § 1725 (rather than § 1728) is controlling.


Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities that has not been previously authorized may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  Section 1725 was enacted by Congress as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1553 (1999).  The provisions of the Act became effective as of May 29, 2000.  To be eligible for reimbursement under this authority the Veteran has to satisfy 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.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 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;

      and

(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.  See also 38 U.S.C.A. § 1725.

The records obtained from the hospital in Bowling Green, Kentucky, show the Veteran presented to the emergency room on February 17, 2010 complaining of chest pain and slurred speech.  His treating physician, Dr. D.P., annotated on one of the treatment records that the VA facility he had contacted (presumably the closest one) did not have any beds available and, therefore, the Veteran would remain a patient at the hospital in Bowling Green.  He continued receiving treatment there through February 19, 2010.

In accordance with the provisions of the § 1725(a), the hospital in Bowling Green is a facility providing emergency care to the public.  However, the evidence as a whole is unfavorable to the Veteran's claim since he has to meet all, not just some, of the criteria of this statute - and there are several other requirements (those enumerated above).  He arguably had the type of exigent situation and circumstances requiring rather immediate medical attention since acute chest pain and slurred speech suggested he may have been having a heart attack or stroke.

Regarding feasible availability of VA care, as already conceded, Dr. D.P. at the treating hospital in Bowling Green contacted the nearest VAMC but was told no beds were available to have the Veteran transferred.  So it cannot be said with any reasonable certainty that a VAMC was feasibly available to provide the type of medical care he needed, indeed, even perhaps had he gone there initially instead of to the hospital in Bowling Green.

But, even still, most fatal to the Veteran's claim is that he is in receipt of Medicare Part A benefits.  A health plan contract is specifically defined by the law as well as the implementing regulation to include an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j).  38 U.S.C.A. § 1725(f)(2)(B) (West 2002); 38 C.F.R. § 17.1001(a)(2) (2010).  42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B.  That is, the laws and regulations specifically exclude payment under the Millennium Act if, as here, the Veteran has coverage under either Medicare Part A or Medicare Part B.  Thus, while the Board realizes the Veteran is financially liable to the hospital in Bowling Green for his treatment there, he has insurance coverage under Medicare Part A.  And even if, as seems likely, this other coverage is insufficient to cover the cost of all the unexpected medical expenses he incurred, there is no provision for making an exception in this circumstance.  Instead, he is still required to satisfy all of the requirements for payment or reimbursement under 38 U.S.C.A. § 1725 (the Millennium Act), and he clearly does not.

Because the Veteran fails to meet the criteria required under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002, reimbursement or payment for any amount in question is prohibited.  While the Board empathizes with him, it is bound by the law, and its decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be inequitable.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No [in]equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).


ORDER

The claim for payment or reimbursement of the unauthorized medical expenses incurred from February 17-19, 2010 is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs