Citation Nr: 1202012 Decision Date: 01/19/12 Archive Date: 01/30/12 DOCKET NO. 09-32 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Nebraska-Western Iowa Health Care System THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1968 to October 1970, and from March 1962 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 adverse action by the Department of Veterans Affairs (VA) Department of Veterans Affairs Nebraska-Western Iowa Health Care System in Lincoln, Nebraska, which is the Agency of Original Jurisdiction in this matter. In August 2011, the Veteran presented testimony before the undersigned in a travel board hearing. A copy of the transcript has been associated with the claims folder. FINDINGS OF FACT 1. The record reflects that the Veteran had no adjudicated service-connected disabilities when he received unauthorized medical treatment from Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008. 2. At that time, the Veteran was covered under a health-plan contract for payment or reimbursement. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on September 4, 2008, September 11, 2008, and September 15, 2008, are not met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. However, these changes are not applicable to claims such as the one decided herein. See Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 17). Consequently, the duties to notify and assist have been met. Analysis The Veteran asserts that his medical treatment at Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008, was emergent because he would have had to wait 30 days to get treatment from VA and that he would have lost his job had he waited to seek treatment. He further contends that his eye health was at risk. Generally, 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. §§ 1725 or 1728 and implementing regulations. The provisions of 38 U.S.C.A. § 1728 provide for payment or reimbursement of unauthorized medical expenses for the treatment of adjudicated service-connected disabilities, non-service-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability, or any disability of a Veteran who has a total disability permanent in nature from a service-connected disability. Here, the evidence shows that the Veteran did not have any service-connected disabilities when he was treated at Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008. Therefore, the threshold criteria for payment or reimbursement under the provisions of this section have not been met. Alternatively, to be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-100 8), all of the following conditions must be satisfied: (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 such provider beforehand 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 discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized); (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; 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. The above-noted criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board notes that the provisions of 38 U.S.C.A. § 1725 reflect a legislative change in that statute, effective October 10, 2008. Specifically, the change of interest is that the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary, if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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 (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, "emergency treatment" is continued 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; or (ii) such time as a Department facility or other Federal facility accepts such transfer if--(I) 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 (II) 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. The regulations do not require that a veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment was 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, that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b); see also, Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009). After a careful review of the claims folder, the Board finds that the criteria for reimbursement or payment of the Veteran's September 2008 medical expenses have not been met. In this regard, the evidence of record reveals that, at the time the Veteran received medical treatment at Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008, he had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the September 2008 non-VA medical treatment. Specifically, the evidence clearly shows that the Veteran had coverage with American National Life Insurance Company of Texas. Furthermore, at his August 2011 Board hearing, the Veteran acknowledged that he had health insurance coverage at the time he sought medical treatment. He testified that he had a $5,000 deductible which he had not met, and was thus responsible for all of the costs of his treatment. Billing statements of record reflect that the Veteran was responsible for the deducible portion of the costs for the treatment. As noted above, 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. The evidence is clear that the Veteran was covered under a health plan contract thereby prohibiting payment or reimbursement for treatment under the applicable authority. The Board is sympathetic to the Veteran's situation. The Board, however, is bound by the law, and its decision is dictated by the relevant statutes and regulations. Because the criteria for payment or reimbursement under Section 1725 (i.e. lack of other insurance coverage under 38 C.F.R. § 17.1002(g)) has not been met, the claim for payment or reimbursement lacks legal merit, and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Since the claimed payment is barred by law, the Board need not address the other requirements, including whether the September 2008 medical treatment was emergent, in nature. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Eye Physicians P.C. in Albion, Nebraska on September 4, 2008, September 11, 2008, and September 15, 2008, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs