Citation Nr: 1103648 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 04-18 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Olean General Hospital and Millard Fillmore Gates Circle Hospital from January 19, 2009, to January 30, 2009. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs Medical Center/Fee Processing Center in Canandaigua, New York, which denied the Veteran's claim for entitlement to payment or reimbursement of unauthorized medical expenses. In August 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the VA Regional Office (RO) in Buffalo, New York. A transcript of the hearing has been associated with the Veteran's claims file. Following that hearing, the presiding Veterans Law Judge held the record open for 30 days to afford the Veteran the opportunity to submit additional evidence in support of his claim. Since that time, however, he has submitted no such evidence for consideration. FINDINGS OF FACT 1. From January 19, 2009, to January 30, 2009, the Veteran underwent treatment from private medical providers at Olean General Hospital and Millard Fillmore Gates Circle Hospital. 2. On March 12, 2009, the Albany VA Medical Center (VAMC) issued correspondence to the Veteran and his private medical providers requesting medical records and an insurance verification statement in support of his claim for unauthorized medical expenses reimbursement. 3. Neither the above information nor a request for additional time to submit that information was received within 30 days of the Albany VAMC's March 12, 2009, correspondence. 4. In April 2009, June 2009, and September 2009, the Albany VAMC issued correspondence to the Veteran and his private medical providers indicating that his medical reimbursement claim was considered abandoned. CONCLUSION OF LAW The criteria for entitlement to reimbursement for unauthorized medical expenses incurred at Olean General Hospital and Millard Fillmore Gates Circle Hospital have not been met. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.93, 17.120, 17.161, 17.1004(e) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA facilities are not capable of furnishing the care or services required, the Secretary may contract with non-Department 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 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.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; Malone v. Gober, 10 Vet. App. 539, 541 (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.A. 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); 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). 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 this authority the appellant 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 (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-VAMC (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, 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). 38 C.F.R. § 17.1002 (2010). If any one of the criteria is lacking, the benefit sought may not be granted. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; Zimick, 11 Vet. App. at 49; Malone, 10 Vet. App. at 547. The Veteran is required to file a claim within 90 days of the latest of the following: (1) July 19, 2001; (2) the date that he 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 he finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004 (2010). Additionally, and most significantly for the purposes of this appeal, VA regulations direct that, if a VAMC decision maker finds that additional information is needed to make a determination regarding a medical reimbursement claim, such official must contact the Veteran in writing and request that additional information. 38 C.F.R. § 17.1004(e) (2010). The Veteran must then submit that requested information to the decision maker within 30 days of receipt of the written correspondence or his claim will be considered abandoned. An exception to this policy may only be made if, within the 30-day time period, the Veteran applies in writing for an extension to submit the requested information. In this instance, the deadline for submission of the information may be extended as reasonably necessary for the requested information to be obtained. Id. The Board now turns to the specific facts of the Veteran's appeal. In written statements and testimony before the Board, he contends that he is entitled to reimbursement for the emergency medical care he received at two private facilities (Olean General Hospital and Millard Fillmore Gates Circle Hospital) in late January 2009. As a preliminary matter, the Board observes that the Veteran fails to satisfy the criteria for reimbursement under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The Board acknowledges that the Veteran is currently in receipt of a 10 percent rating for a knee disorder. However, the Veteran neither contends, nor does the evidence otherwise show, that the medical care for which he now seeks reimbursement pertained to that service-connected disability. On the contrary, he asserts that he required emergency private medical treatment for complications of a stroke, which he suffered "on [his] way home" from a VAMC in Rochester, New York. As the Veteran is not service connected for stroke complications or for any related cardiovascular disability, the Board finds that 38 U.S.C.A. § 1728 is not for application with respect to his claim. Accordingly, the Board must now consider whether the Veteran is entitled to private emergency medical care reimbursement for a nonservice-connected disability under the provisions of the Veterans Millennium Health Care and Benefits Act. See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. In this regard, the threshold question is whether the Veteran and his medical providers submitted a timely response to the VAMC's March 12, 2009, request for additional evidence in support of his claim. 38 C.F.R. § 17.1004(e). Specifically, the VAMC requested medical records from the private facilities (Olean General Hospital and Millard Fillmore Gates Circle Hospital) where the Veteran was treated from January 19, 2009, to January 30, 2009. Additionally, the VAMC requested that the Veteran provide a statement verifying that he did not have private medical insurance that would cover his treatment. The record shows that copies of the VAMC's March 2009 correspondence were sent to the Veteran and his private treating providers, specifically Exigence Medical of Olean, P.L.L.; Cardiology Reading Panel; Dent Neurological Group, P.C.; Kaleida Health; Buffalo Medical Group, P.C.; University at Buffalo Pathologists, Inc.; and University at Buffalo Neurosurgery, Inc. However, the requested information was not submitted within 30 days of receipt of the VAMC's correspondence. Nor was any written request for additional time to submit that information received within the 30-day time period. Thereafter, in correspondence dated in April 2009, June 2009, and September 2009, the VAMC informed the Veteran and his private medical providers that his medical reimbursement claim was considered abandoned. The Board acknowledges that, at his August 2010 Travel Board hearing, the Veteran testified that he had submitted copies of his January 2009 private hospital invoices to an official at the VAMC in Bath, New York. He stated that this had been his prior practice when requesting reimbursement for private medical care. The Veteran further indicated that he presumed the Bath VAMC official would send the information to the proper VA facility - specifically, the Albany VAMC -- in a timely fashion, as she had done in the past. The Board recognizes that the Veteran has effectively asserted that the Bath VAMC official failed to submit his private medical bills to in a timely manner, and that this breach of protocol prevented him from prevailing on his medical reimbursement claim. However, there is a presumption of regularity that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. The law presumes the regularity of the administrative process. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Crain v. Principi, 17 Vet. App. 182 (2003). Furthermore, clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992); United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). The United States Court of Appeals for Veterans Claims has expressly held that the presumption of regularity applies to procedures at the Board and the RO. See Ashley, supra; Mindenhall v. Brown, 7 Vet. App. 271 (1994). Similarly, the Board believes that this presumption also applies to administrative actions undertaken by personnel at a VAMC in the regular and proper discharge their official duties. The Board does not question the sincerity of the Veteran's belief that he furnished copies of his January 2009 invoices to the Bath VAMC official, whom he trusted to submit information in support of prior claims for medical reimbursement. However, the Court has held that a statement by the Veteran or his authorized representative, standing alone, is generally insufficient to rebut the presumption of regularity. Mindenhall, supra. The Board recognizes that the Veteran testified at his Travel Board hearing that he would be willing to obtain a statement from the Bath VAMC official verifying that she had received his medical invoices. Accordingly, the undersigned Veterans Law Judge agreed to hold the record open 30 days to allow the Veteran to obtain a written statement from that official. However, no such statement was received. Consequently, the Board finds that any additional information that may have been used to support the Veteran's claim has not been obtained because of his unwillingness or inability to cooperate. The Board reminds the Veteran that the duty to assist in the development and the adjudication of claims is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The record does not contain any objective evidence establishing that the official at the Bath VAMC failed to submit the Veteran's private hospital invoices to the proper VA facility or otherwise prevented him from pursuing a claim for medical reimbursement. Thus, the Board finds that clear evidence has not been submitted to rebut the presumption of regularity with respect to the VA's duty to assist the Veteran with his claim. Even assuming, without conceding, that the Bath VAMC official did fail to submit the Veteran's medical invoices to the proper location, it is far from clear that receipt of this information alone would have satisfied the Albany VAMC's March 2009 request. As noted above, the Albany VAMC specifically asked for all of the Veteran's January 2009 private medical records. Such records presumably would have encompassed not only his January 2009 private hospital invoices, which he claims to have submitted to the Bath VAMC official, but also contemporaneous treatment reports from his private medical providers. Additionally, the Albany VAMC requested a statement verifying that the Veteran did not have other insurance that would cover his January 2009 private medical expenses. The Veteran does not contend, nor does the evidence otherwise show, that any January 2009 private hospital treatment report or insurance verification statement was ever provided to the Albany VAMC in a timely manner. Accordingly, the Board finds that, even affording the Veteran every reasonable benefit of the doubt, there is insufficient evidence to show that he fully complied with Albany VAMC's March 12, 2009, request for additional evidence in support of his claim. Accordingly, his claim for reimbursement of unauthorized medical expenses services must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In reaching the above determination, the Board remains sympathetic to the Veteran and does not wish in any way to diminish his honorable military service. The Board, however, is precluded from granting the Veteran's claim on an equitable basis and instead is constrained to follow the specific applicable provisions of law. See 38 U.S.C.A. § 7104(c). Finally, the Board observes that 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 Olean General Hospital and Millard Fillmore Gates Circle Hospital, is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs