Citation Nr: 1302993 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-36 474A ) DATE ) ) On appeal from the Department of Veterans Affairs Tennessee Valley Healthcare System in Murfreesboro, Tennessee THE ISSUE Entitlement to payment for medical expenses incurred at Erlanger Medical Center in Chattanooga, Tennessee, on May 14, 2009. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 administrative decision of the Department of Veterans Affairs Tennessee Valley Healthcare System in Murfreesboro, Tennessee, which denied the Veteran's claim of entitlement to reimbursement for unauthorized medical expenses incurred at the Erlanger Medical Center on May 14, 2009. FINDINGS OF FACT 1. The Veteran does not have any adjudicated service-connected disabilities. 2. On May 14, 2009, the Veteran received medical services for a nonservice-connected disability at the Erlanger Medical Center, a non-VA medical facility for which he incurred medical expenses. 3. The claim for payment or reimbursement of medical expenses incurred was not received within 90 days of the date the Veteran was discharged from the private hospital. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at Erlanger Medical Center on May 14, 2009, have not been met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.120, 17.1002, 17.1004 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA generally has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA). However, because the claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). Therefore, the Board will proceed to a decision. II. Analysis The appellant seeks payment for unauthorized private medical expenses incurred at Erlanger Medical Center in Chattanooga, Tennessee, on May 14, 2009. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West Supp. 2011) and 38 C.F.R. § 17.1000-1003 (2012). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. 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 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 nature that a prudent layperson would have reasonably expected that delay in seeking 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 could 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 not 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 (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.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 the 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 Veteran's, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002. In addition, a claimant is required to file a claim within 90 days of the latest of the following: (1) the date that the appellant was discharged from the facility that furnished the emergency treatment; (2) 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 (3) the date the appellant finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004 (2012). The word "claimant" includes a person or organization that paid for treatment on behalf of the Veteran. 38 C.F.R. § 17.1004(a). In addition to the provisions of the Veterans Millennium Health Care and Benefits Act discussed above, payment or reimbursement for medical expenses incurred in non-VA facilities is also available under 38 U.S.C.A. § 1728. Under 38 U.S.C.A. § 1728 VA is required to pay or reimburse Veterans for medical expenses incurred in non-VA facilities 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 of services were rendered to a Veteran for an adjudicated service-connected disability, for a nonservice-connected disability associated with and held to be aggravating a service-connected disability, or for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical or treatment had been or would have been refused. See also 38 C.F.R. § 17.120. All three of these statutory requirements must be met before any payment may be authorized. See Fritz v. Nicholson, 20 Vet. App. 507 (2006). In this case, the appellant received treatment at Erlanger Medical Center on May 14, 2009, for complaints of chest pain and a fever. A claim for payment of cost of unauthorized medical services from Erlanger Health Systems, dated in September 2009, was forwarded to the VA Tennessee Valley Healthcare System, in Murfreesboro, Tennessee. That claim was disapproved by the VA Tennessee Valley Healthcare System in a letter dated in November 2009. That letter was sent directly to the provider in question and the appellant was copied on the correspondence. The letter informed the provider and the appellant that the claim was not received within 90 days of the date of service. In March 2010, correspondence from the appellant's Congressman, inquiring about the status of the appellant's case, was received as a notice of disagreement with the November 2009 decision, and the VA Tennessee Valley Healthcare System issued a statement of the case dated in May 2010. The appellant filed a substantive appeal in September 2010, stating that the claim was filed with Erlanger within 90 days of medical care. The Board notes at the outset that the statement of the case indicates the appellant was not in receipt of any service-connected disability benefits. As such, entitlement to payment pursuant to 38 U.S.C.A. § 1728 is not warranted and consideration will be given as to whether payment is warranted pursuant to the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725. As noted above, in order to obtain payment or reimbursement for emergency treatment under 38 U.S.C.A. § 1725 a claimant must submit to the VA medical facility of jurisdiction a completed standard billing form within 90 days after the date the appellant was discharged from the facility that furnished such treatment or the date the appellant finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. See 38 C.F.R. § 17.1004(d). In this case, the appellant did not have any other health coverage at the time treatment was rendered, nor did he submit a claim within the required 90 day window. Rather, the subject healthcare provider submitted a Claim for Payment of Cost of Unauthorized Medical Expenses to the VA Tennessee Valley Healthcare System in September 2009, more than 90 days after services were rendered on May 14, 2009. As such, entitlement to payment for unauthorized private medical expenses incurred at Erlanger Medical Center, Chattanooga, Tennessee, on May 14, 2009, cannot be approved. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment for unauthorized private medical expenses incurred at Erlanger Medical Center, in Chattanooga, Tennessee, on May 14, 2009, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs