Citation Nr: 1300217	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  02-11 069A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Leeds, Massachusetts


THE ISSUE

Entitlement to payment or reimbursement of unauthorized dental expenses incurred at a private facility on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The Veteran had active service from October 1965 to July 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and December 2010 decisions of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Leeds, Massachusetts. 

The Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge in October 2012.  A transcript of the hearing has been reviewed and associated with the claims file.


FINDINGS OF FACT

1.  The Veteran has been awarded a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU).  It has been determined that his service-connected disabilities are totally and permanently disabling. 

2.  Dental care was provided to the Veteran by a private dentist on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010.

3.  There was no prior authorization for the dental services in question.

4.  While the Veteran's conditions on June 8, 2010 and September 16, 2010 were described as necessary and emergent in nature, the evidence of record demonstrates that VA facilities were feasibly available to provide him with the type of services provided by the private dentist. 

5.  The medical care that the Veteran received on June 22, 2010 and July 13, 2010, was not for conditions of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 

6.  VA facilities were also feasibly available at the time of the Veteran's receipt of private dental care on June 22, 2010 and July 13, 2010.

7.  The Veteran had coverage under a health-plan contract (Delta Dental Insurance) at the time he received the dental treatment on the dates in question.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010, have not been met.  38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

On November 9, 2000, the VCAA enacted.  See Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2011)).  The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Significantly, however, the United States Court of Appeals for Veterans Claims (Court) has held that the provisions of the VCAA are not applicable where the law, and not the factual evidence, is dispositive.  Manning v. Principi, 16 Vet. 534, 542-43 (2002).  As will be discussed in the following decision, the pertinent facts of this case are not in dispute, and the outcome of the Board's decision depends solely on the application of the relevant law to the Veteran's claim.  

Further, the Court has held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits and which contain their own notice provisions.  Barger v. Principi, 16 Vet. App. 132, 138 (2002).  Specifically, the provisions of Chapter 17 of 38 U.S.C. and 38 C.F.R. contain their own notice requirements.  For instance, regulations at 38 C.F.R. §§ 17.120-17.133 discuss the adjudication of claims for reimbursement of unauthorized medical expenses.  In particular, 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 reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for the denial and of 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.  Such notification was completed in this case.  See, e.g., correspondence issued to the Veteran in April 2011.  Accordingly, no further duty to notify the Veteran is required.  
With regard to VA's duty to assist the Veteran, the Board notes that the development of medical evidence appears to be complete.  Unlike many questions subject to appellate review, the issue of whether the Veteran is entitled to reimbursement or payment of medical expenses, by its very nature, has an extremely narrow focus.  The facts underlying this case do not appear to be in dispute.  Here, the only evidence necessary to decide the claim revolves around what transpired on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010.  This determination involves the medical records from those time periods and the medical decision from the staff at the VAMC.  Thus, evidence which is necessary to decide the case is already of record, and, as explained in further detail in the following decision, the outcome of the case is mandated by the relevant law and regulations.  

No amount of additional evidentiary development would change the outcome of the case.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Indeed, the Veteran does not assert that there is additional evidence to be obtained or that there is a request for assistance that has not been acted on.  Thus, the Board finds that the VA has complied with its duty to assist the Veteran with the development of the issue on appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Law and Analysis

The Veteran seeks payment or reimbursement for private dental care that he received on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010.  He asserts that during the time periods in question, he was in receipt of a TDIU and that his disabilities were permanent in nature.  He further asserts that, because he needed immediate dental care he sought private treatment, presumably from the nearest dentist.  He believes, therefore, that the VA should reimburse him for the care he received.  See Notice of Disagreement received in March 2011.

VA shall furnish on an ambulatory or outpatient basis medical services as are needed, for specific eligible personnel, except that applications for dental treatment must also meet the provisions of 38 C.F.R. § 17.161.  See 38 U.S.C.A. § 1712; 38 C.F.R. § 17.93. 

Outpatient dental treatment may be authorized by the Chief, Dental Service, for beneficiaries defined in 38 U.S.C.A. § 1712(b) and 38 C.F.R. § 17.93 to the extent prescribed and in accordance with the applicable classification and provisions set forth in this section.  Classification IV provides that those whose service-connected disabilities are rated at 100 percent by schedular evaluation, or who are entitled to the 100 percent rate by reason of individual unemployability, may be authorized any needed dental treatment.  See 38 U.S.C.A. § 1712; 38 C.F.R. § 17.161(h). 

When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility, or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care in accordance with the provisions of this section.  When demand is only for infrequent use, individual authorizations may be used.  Care in public or private facilities will only be authorized, whether under a contract or an individual authorization, for medical services for the treatment of any disability of a veteran who has a service-connected disability rated at 50 percent or more.  38 U.S.C.A. § 1703; 38 C.F.R. § 17.52(a)(2). 

The admission of a veteran to a non-VA facility at VA expense must be authorized in advance.  In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran, or by others in his or her behalf, is dispatched to VA within 72 hours after the hour of admission.  When an application for admission by a veteran has been made more than 72 hours after admission, authorization for continued care at VA expense shall be effective as of the postmark, or dispatch date of the application, or the date of any telephone call constituting an informal application.  See 38 C.F.R. § 17.54.

Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (West 2002). Effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of the amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. The amendments include making the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the "prudent layperson" standard. 

Under 38 U.S.C.A. § 1728 to be entitled to payment or reimbursement of medical expenses for treatment not previously authorized at a non-VA facility, a claimant must satisfy the following three conditions: 

(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 vocational rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.47(i)(2); and 
(b) emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was rendered in a medical emergency of such 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 is met by 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; and,

(c) VA or other Federal facilities were not feasibly unavailable. VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans 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; 38 C.F.R. § 17.120 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79070 (Dec. 21, 2011).

The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, emphasized in the above quotation, "all three statutory requirements would have to be met before reimbursement could be authorized."  Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). 

In this case, because the Veteran has been found to be totally and permanently disabled, he may be considered for reimbursement or payment under 38 U.S.C.A. § 1728 for the medical expenses related to the private treatment if the record establishes that such care or services were rendered in a medical emergency and other Federal facilities were not feasibly available.  See 38 C.F.R. § 17.120.  

In support of his claim the Veteran submitted a letter from his private dentist as well as billing records, dated in October 2010, which reflect that he had emergency dental services on June 8, 2010 for a fractured tooth (tooth number 8).  At that visit the tooth was "built up" in preparation for a new crown.  The Veteran was next treated on June 22, 2010 for additional crown preparation.  The crown installation was completed on July 13, 2010.  The evidence also shows that the Veteran had another dental emergency on September 16, 2010.  At that time he underwent a debridement and root plane treatment for an 11 millimeter defect involving tooth number 29.

Also of record is a document indicating that the Veteran's Delta Dental Insurance, paid a portion of the Veteran's expenses.  

In November 2010 and December 2010, the Veteran was informed that payment would not be made for the dental treatment received on these dates because it was not preauthorized.  

The claim was reconsidered by a Medical Administration Specialist and the Medical Center Director from the Northampton VAMC, who found that the Veteran met the first criteria under 38 C.F.R. § 17.120 as he was 100 percent service connected with a permanent and total, unemployable adjudication.  They also determined that, while the dental treatment provided on June 8, 2010 and September 16, 2010 may have met the second criteria as an emergency, it did not meet the third criteria, as a VA facility was feasibly available on both days.  It was then noted that the Veteran could have sought treatment at the VA Outpatient Clinic in Springfield with referral to the Dental Clinic at the Northampton VAMC or he could have also sought treatment directly from the Northampton VAMC.  It was also determined that the dental treatment received on June 22, 2010 and July 13, 2010 did not meet either the second or third criteria.  The medical reviewers concluded that all three criteria under 38 C.F.R. § 17.120 had not been met for payment authorization.  See Statement of the Case issued in April 2011. 

The medical reviewers also noted that VA has no statutory authority to pay the balance remaining after the primary insurance carrier has paid.  Id.

At his October 2012 hearing the Veteran testified that he believed that his dental problems required immediate attention.  He testified that he had two stress fractures, which according to his dentist, were medical emergencies as the tooth needed to be re-crowned.  The Veteran testified that, although he experienced "discomfort," it was not on a daily basis.  He testified that the private dentist was located in Springfield Massachusetts within a 10-mile radius of his home and that the nearest VA facility was the Northampton VAMC, which was within a 25-30 mile radius of his home.

Unfortunately, based on a review of the record, the Board finds that payment or reimbursement of the unauthorized medical expenses incurred on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010, is not warranted.  Initially, the Board notes that there is no indication from the record that the Veteran attempted to contact VA for treatment.  Indeed, he has not contended that he sought preauthorization from VA or that he contacted a VA facility and was refused.  

However as discussed above, the Veteran has a total disability rating as a result of his service-connected disabilities, and the VAMC has essentially conceded that his dental conditions on June 8, 2010 and September 16, 2010 were emergent.  Thus, the first and second criteria under 38 U.S.C.A. § 1728 for reimbursement for these two dates have been met.

On the other hand, the evidence does not otherwise establish that the unauthorized private dental treatment the Veteran received on June 22, 2010 and July 13, 2010 constituted medical emergencies.  Review of the treatment records indicate the Veteran's fractured tooth number 8 was initially repaired on June 8, 2010 with additional treatment on June 22, 2010 and July 13, 2010 involving crown preparation and the installation of the crown, which could certainly have been scheduled at a VA facility.  In other words, the Veteran's crown preparation/installation, planned and scheduled at future dates weeks after the initial treatment on June 8, establishes that the dental care on the dates in question was not rendered under circumstances such that delay would have been hazardous to life and health, or that a prudent layperson would have considered delay hazardous, and cannot be considered "immediate" dental services. 

That notwithstanding, with respect to all four dates, the Board has determined that VA facilities could have provided the necessary medical care required to treat the Veteran's dental condition.  "Feasibly available" is not defined in the relevant statutes or regulation in 38 U.S.C.A. § 1728; 38 C.F.R. or § 17.120.  Under the provisions of 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  38 C.F.R. §§ 17.52, 17.53. 

The Veteran appears to argue that the closest VA medical facility (the Northampton VAMC) was some 25-30 miles away, while the private dentist, located in Springfield, Massachusetts was within 10 miles of his home.  The Board recognizes that it is reasonable to assume that the Veteran would not want to travel a significant distance to the VAMC in order to be treated for a fractured tooth.  However, he did not otherwise indicate that he could not have made it the Northampton VAMC because of the severity of his symptoms such that an attempt to initially use that VA facility would not have been unreasonable, unsound, unwise, or not practicable.  This is particularly so in light of the fact that there is a VA facility located in Springfield as well.  As noted before there is no indication from the record that the Veteran attempted to contact VA for treatment and was refused.  Thus, it appears that although the Veteran could have traveled to a VA facility for treatment by VA medical professionals, he chose not to do so.  

While the Veteran has met at least one, and possibly two, of the requirements of 38 U.S.C.A. § 1728 (West 2002), the record does not show that the third criteria has been met.  As all three requirements have not been met, entitlement to reimbursement or payment by VA of the cost of unauthorized dental treatment provided on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010, must be denied under these provisions.

In considering every possible theory of entitlement, the Board has considered whether reimbursement is warranted under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002.  

In this regard, the Board notes that regulatory amendments to 38 U.S.C.A. § 1725went into effect in February 2010.  See Pub. L. No. 111-137, § 1(a), (b), 123 Stat 3495 (2010).  However, the change in law was meant to address certain circumstances where a veteran had third-party insurance that would pay a portion of the costs associated with emergency treatment in a private facility but the Veteran would be responsible for the remainder of the costs.  An example provided in the House report described where a veteran had minimal health insurance coverage through a state-mandated automobile insurance policy.  Prior to the change in the law, the minimal coverage would prohibit VA from covering any part of the expense.  See House Report 111-55, March 26, 2009.  The change in the law removed 38 U.S.C.A. § 1725(f)(2)(E) which included automobile insurance carriers in the definition of a health-plan contract.  The amendments did not affect the previously established prohibition against VA paying or reimbursing for emergency medical treatment where the veteran had a health-plan contract in place as described above.

To be eligible for reimbursement under this authority, the Veteran 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 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) 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; 

(e) The veteran is financially liable to the provider of emergency treatment for that treatment; 

(f) 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); 

(g) 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,

(h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 

38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79071 (Dec. 21, 2011); 77 Fed. Reg. 23617 (Apr. 20, 2012).

As noted above, eligibility for reimbursement under the Veterans Millennium Health Care and Benefits Act also requires that the treatment be for a medical emergency and that VA or other Federal facilities were not feasibly unavailable.  For the reasons set forth above, the Board has concluded that, to the extent the Veteran's conditions were deemed emergent in nature, the evidence of record demonstrates that VA facilities were feasibly available to provide him with the type of services provided by the private dentist.  

In addition, the Veteran has a health-plan contract with Delta Dental Insurance as defined by statute.  He has not disputed this fact.  This coverage is a bar to payment by VA.  See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(g).  

Because the Veteran does not meet at least one of the criterion under 38 C.F.R. § 17.1002, reimbursement for any amount is prohibited.  The Board need not go into whether the Veteran meets any of the other criteria, as the failure to meet one of them precludes payment.  See also 38 U.S.C.A. § 1725.

The Board recognizes that there are financial difficulties that arise from unexpected medical expenses.  While the Board sympathizes with the Veteran's situation and the particular circumstances therein, the Board is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No 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)).  Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied.






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ORDER

Entitlement to payment or reimbursement of unauthorized dental expenses incurred at a private facility on June 8, 2010, June 22, 2010, July 13, 2010, and September 16, 2010 is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs