Citation Nr: 1110509	
Decision Date: 03/16/11    Archive Date: 03/30/11

DOCKET NO.  10-00 263A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Satilla Regional Medical Center on June 16, 2009, and June 17, 2009.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Jaeger, Counsel



INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in July 2009 by the Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida.  Jurisdiction of the Veteran's claims file is with the Regional Office (RO) in Atlanta, Georgia.

The Board notes that the Veteran's representative has not filed written argument in this case (via VA Form 646 or equivalent).  However, his representative has received copies of all correspondence from the VAMC.  Additionally, after the Veteran perfected his appeal in January 2010, a letter with a copy of the relevant documents was sent to the Veteran's representative in March 2010; however, his representative did not submit written argument.  As such, the Board finds that no further notification or other action is warranted with respect to solicitation of written argument from the Veteran's representative.


FINDINGS OF FACT

1.  Payment or reimbursement of the cost of the private medical care received on June 16, 2009, and June 17, 2009, was not authorized in advance by VA.

2.  The private medical care received on June 16, 2009, and June 17, 2009, was not for a service-connected disability, or a nonservice-connected disability associated with a service-connected disability, and the Veteran is not in receipt of a total disability rating or a participant in vocational rehabilitation.

3.  When the private medical care was rendered on June 16, 2009, and June 17, 2009, the Veteran had coverage under a health-plan contract (Medicare) for payment or reimbursement.  


CONCLUSION OF LAW

The criteria for establishing payment or reimbursement for unauthorized medical expenses incurred as a result of treatment provided at Satilla Regional Medical Center on June 16, 2009, and June 17, 2009, are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000-17.1002, 17.1004 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Board notes that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA generally has a statutory duty to assist the Veteran in the development of a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010).   The VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, as the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA).  Barger v. Principi, 16 Vet. App. 132 (2002). Similarly, the statute at issue in this matter is not found in Chapter 51, but rather, in Chapter 17.  However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the United States Court of Appeals for Veterans Claims (Court) appeared to assume that the VCAA was applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error.

The Board also observes that the provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R Part 17 contain their own notice requirements.  Further, regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses.  According to 38 C.F.R. § 17.124, the Veteran has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim."  When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38.  38 C.F.R. § 17.132.

In this case, the Board finds that the notification provisions of Chapter 17 have been satisfied, as have been the duties to assist and notify under the VCAA (assuming it is applicable).  All relevant evidence necessary for the equitable disposition of the appeal has been obtained and that additional efforts to notify or assist the Veteran in the development of this case are not required.  Specifically, the Board finds that, in correspondence dated in November 2009, the VAMC advised the Veteran of VA's duties to notify and assist under the VCAA.  This letter specified what the evidence must show to establish entitlement to reimbursement of unauthorized medical expenses incurred by the Veteran.  Further, records are on file that indicate the type of medical care received on June 16, 2009, and June 17, 2009, that is the subject of this appeal.  In addition, no medical examination is warranted in this case as the outcome depends upon the nature of the medical treatment received on June 16, 2009, and June 17, 2009, and not on the current nature and/or etiology of a specific medical condition(s).

Moreover, in this case the Board finds that the Veteran does not satisfy the legal requirements for payment of or reimbursement of the unauthorized medical expenses.  As such, it is the law, and not the evidence, that is dispositive.  The Court has held that when the law, and not the underlying facts or development of the facts, is dispositive in a matter, the VCAA can have no effect on the appeal.  Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, and not factual evidence, is dispositive).  

II.  Analysis

The Veteran presented to the Satilla Regional Medical Center on June 16, 2009, with complaints of fever and nausea.  He was classified as non-urgent and it was noted that there were no symptoms or objective findings that were life or limb threatening.  His diagnoses were fever, urinary tract infection, and diabetes mellitus, and he was discharged home in good condition within three hours.  On June 17, 2009, the Veteran returned to the Satilla Regional Medical Center with complaints of acute left flank pain for two days.  He was classified as non-urgent and it was noted that there were no symptoms or objective findings that were life or limb threatening.  He was diagnosed with a kidney stone and kidney infection, and was discharged home in good condition within two hours.  The Veteran alleges that, as he was treated for emergent conditions, he is entitled to payment or reimbursement for the medical expenses incurred at the Satilla Regional Medical Center on June 16, 2009, and June 17, 2009.

Medical expenses incurred by Veterans at private facilities, and not previously authorized by VA, may be paid or reimbursed by VA in certain limited situations where particular statutorily-mandated requirements are met.  Specifically, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations.

Under 38 U.S.C.A. § 1728, VA may pay or reimburse Veterans for payment of medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such a 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 nonservice-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 in the case of a Veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such Veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and, (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable.  See also 38 C.F.R. § 17.120.  The Court has held that all three of these requirements must be met before payment is authorized.  Zimick v. West, 11 Vet. App. 45, 49 (1998).

Emergency care not covered under the provisions of 38 U.S.C.A. § 1728 as described above may qualify for reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008, which was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and will be referred to as the "Millennium Bill Act" in this discussion.

To qualify for reimbursement under the Millennium Bill Act as articulated in 38 C.F.R. § 17.1002, all of the following criteria must be met:

(a) The emergency services were provided in a hospital emergency department or 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 or provider was not feasibly available and an attempt to use them beforehand 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 nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility;

(e) At the time the emergency treatment was furnished the Veteran was enrolled in the VA healthcare system and had received medical services 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 had no coverage under a healthcare contract for payment or reimbursement in whole or in part for the emergency treatment;

(h) If the condition for which 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 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.

The criteria above are conjunctive, not disjunctive; accordingly, all nine criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991).

At the outset, the Board notes that the Veteran has not alleged that VA contracted with Satilla Regional Medical Center for his medical treatment, and there is no indication that VA authorization was obtained prior to this particular admission, or within 72 hours thereafter, for the medical services provided to the Veteran for which he is now seeking payment or reimbursement.  Accordingly, the Board finds that prior authorization for the private medical treatment received Center on June 16, 2009, and June 17, 2009, was not obtained.  Thus, the issue on appeal must be decided in light of the requirements for reimbursement or payment for medical expenses incurred without prior authorization from VA. 

The Board initially finds that the Veteran does not qualify for reimbursement or payment for medical expenses under the provisions under 38 U.S.C.A. § 1728.  Under such provisions, the law requires that the care be rendered for an adjudicated service-connected disability, a nonservice-connected disability associated with and held to be aggravating a service-connected disability, any disability of a Veteran who has a total disability permanent in nature from a service-connected disability, or any illness in the case of a Veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such Veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training.  

The record reflects that, at the time treatment was rendered, the Veteran was in receipt of a 30 percent rating for posttraumatic stress disorder, a 20 percent rating for diabetes mellitus, and a 10 rating for torn lateral ligament of the left knee, which results in a combined evaluation of 50 percent.  The Board observes that, on June 16, 2009, the Veteran's diagnoses included diabetes mellitus; however, he complained only of fever and nausea and there is no indication that the he was treated for complications related to his diabetes or that such symptoms were a direct result of his diabetes.  Therefore, as the Veteran did not seek treatment for a service-connected disability, or a nonservice-connected disability associated with a service-connected disability, and is not in receipt of a total disability rating or a participant in vocational rehabilitation, the provisions of 38 U.S.C.A. § 1728 are not applicable in the instant case.

Therefore, the Board has considered whether the Veteran is entitled to payment or reimbursement of medical expenses under the provisions of 38 U.S.C.A. § 1725.  However, the Board finds that, as the Veteran does not meet all of the criteria enumerated, his claim must be denied.  

In this regard, the evidence of record reveals that the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.  Under 38 C.F.R. § 17.1002(g), the term "health-plan contract" 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.  It also includes, but is not limited to, an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c), which refers to the Medicare program administered by the Social Security Administration, certain State plans for medical assistance, and workers' compensation laws or plans.  See 38 U.S.C.A. § 1725(f)(2); 38 C.F.R. § 17.1001.

While the Veteran has acknowledges that he has Medicare coverage, he alleges that he had not paid the premiums and Medicare had not covered the expenses incurred as a result of his treatment on June 16, 2009, and June 17, 2009.  However, the remainder of the evidence in the claims file contradicts the Veteran's allegations.  Specifically, records from the Satilla Regional Medical Center reflect that the Veteran had insurance in the form of Medicare Part A and B.  Additionally, the records show that the facility had received prior payments from such insurance provider for the Veteran's care on June 16, 2009, and June 17, 2009.  Moreover, documentation contained in the claims file reflects that the Veteran's Medicare Part A and B are active.  Therefore, the Board finds that the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.

The Board recognizes that Medicare may not cover all expenses.  The law provides, however, that any health-plan contract which includes coverage "in whole or in part, for emergency treatment" precludes reimbursement by VA under the Veterans Millennium Health Care and Benefits Act.  See 38 U.S.C.A. § 1725(f)(2); 38 C.F.R. § 17.1001.

The Board acknowledges the Veteran's contentions regarding his need to seek emergency care at the nearest hospital in June 2009, however, the Board is bound by the law, and its decision is dictated by the relevant statutes and regulations.  Since the Veteran does not meet one of the criteria for payment or reimbursement under Section 1725 (i.e., lack of other insurance coverage under 38 C.F.R. § 17.1002(g)), the claim must be denied.  Given that the Veteran does not meet the threshold requirement, it is unnecessary to analyze whether the claim meets the additional Section 1725 requirements because all of them must be met to warrant payment or reimbursement.  See 38 C.F.R. § 17.1002.

In sum, given that the non-VA medical treatment received on June 16, 2009, and June 17, 2009, was not pre-authorized; that the Veteran is not eligible for reimbursement under Section 1728; and that VA regulations do not allow for payment or reimbursement of non-VA medical expenses under Section 1725 when a Veteran has other health coverage, such as Medicare, that can provide at least partial payment or reimbursement, the Board must deny the Veteran's appeal.  Accordingly, the instant claim for payment or reimbursement of unauthorized medical expenses lacks legal merit, and must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at Satilla Regional Medical Center on June 16, 2009, and June 17, 2009, is denied.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs