Citation Nr: 1307261	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  10-40 435A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Memphis, Tennessee


THE ISSUE

Entitlement to payment of or reimbursement for unauthorized medical expenses incurred at St. Bernard's Medical Center for treatment received from January 30, 2010, to February 3, 2010.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel



INTRODUCTION

The Veteran served on active duty from February 1962 to January 1965.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Memphis, Tennessee.


FINDINGS OF FACT

1.  The Veteran has coverage under a third party health plan contract, Medicare Part A, for payment or reimbursement of hospital, including emergency department, expenses.   

2.  The Veteran's condition was stabilized by January 30, 2010, and he could have been safely transferred to a VA facility.  


CONCLUSION OF LAW

The criteria for payment or reimbursement of medical expenses not previously authorized incurred for treatment at St. Bernard's Medical Center from January 30, 2010, to February 3, 2010 have not been met.  38 U.S.C.A. §§ 1725, 1728, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 17.120, 17.121, 17.1000-17.1008 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 

Medical Reimbursement

The Veteran is seeking payment of or reimbursement for unauthorized medical expenses incurred at St. Bernard's Medical Center from January 30, 2010, to February 3, 2010.  The Veteran sought treatment on January 30, 2010 complaining of chest pain, headache, confusion, and memory loss.  He was admitted and remained hospitalized until February 3, 2010.  During that time, a number of diagnostic procedures were performed, including blood work, x-rays, and a cardiac catheterization.  An ancillary claim by Cardiology Associates of NEA for service performed on February 2 and 3, 2010 was submitted as part of the Veteran's claims.  

Generally, in order to be entitled to payment of or reimbursement for 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 and implementing regulations, reimbursement of unauthorized medical expenses is available only 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; and (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service connected disability associated with and held to be aggravating an adjudicated 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, injury, or dental condition in the case of a veteran who (i) is participating in a vocational rehabilitation program as defined in 38 U.S.C.A. § 3101(9), and (ii) is medically determined to have been in need of such care or services; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or to obtain prior VA authorization for the required services 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 (2012).  All of these statutory requirements must be met before payment may be authorized.  See Hayes v. Brown, 6 Vet. App. 66, 68 (1993).  

Here, as the Veteran was not seeking treatment for an adjudicated service-connected disability or a non-service connected disability associated with and held to be aggravating an adjudicated service-connected disability, is not considered permanently and totally disabled, and is not participating in a vocational rehabilitation program, 38 U.S.C.A. § 1728 does not apply.  

To be eligible for payment of or reimbursement for emergency services for non-service connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), the veteran must 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 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; 

(i) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided.  38 C.F.R. § 17.1002.

Here, the record reflects that the Veteran has a third party health plan, Medicare Part A, which covers hospital expenses.  Accordingly, any payment of or reimbursement of expenses incurred at St. Bernard's Medical Center must be denied since the Veteran does not meet the criteria of 38 U.S.C.A. § 1725(g).  

To the extent that the Veteran has claimed that the claims from Cardiology Associates of NEA are not hospital expenses but separate bills from private providers that are not covered by Medicare Part A, the Board find that payment or reimbursement of these expenses still cannot be granted.  

First, it is not clear from the record why the Veteran could not seek treatment for his condition from the nearest VA or federal facility and instead elected to seek treatment from a private hospital even after the initial emergency evaluation.  

Nonetheless, a physician has reviewed the Veteran's medical records from St. Bernard's Medical Center and determined that the Veteran was in stable condition on January 30, 2010, beyond the initial emergency evaluation, and could have safely been transferred to a VA facility.  Thus, any medical emergency had ended long before the Veteran received treatment from Cardiology Associates on February 2 and 3, 2010.  While the Veteran has argued that if his doctors believed he was well, he would have been discharged, the issue is not whether the Veteran required additional hospitalization or treatment beyond January 30, 2010, but whether he was stable enough to be transferred to a VA or federal facility for that treatment.  It is clear from the record that the Veteran's treating physicians felt that additional testing was required to attempt to determine the cause of the Veteran's presenting symptoms and rule out a serious condition.  However, the available records support the VA's finding that the Veteran was stable enough to have been transferred to another facility for those procedures.  The Board can find no evidence, and the Veteran has not argued, that he ever attempted to transfer to a VA facility at any time after he was admitted to St. Bernard's.  Accordingly, payment or reimbursement of any expenses incurred after the Veteran was determined to be stable for transfer on January 30, 2010 cannot be granted.

The Board appreciates that the Veteran in this case may have been confused about what medical expenses VA would cover, especially since he has coverage under another health plan.  Unfortunately, VA will reimburse expenses incurred at a non-VA facility only under very limited circumstances, and for the reasons detailed above, the Veteran does not meet the criteria.  While the Board is sympathetic to any financial hardship this imposes on the Veteran, the Board is bound by the law.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

However, the VCAA and its implementing regulations do not apply to claims for benefits governed by 38 C.F.R. Part 17 (the governing regulations for reimbursement of private medical expenses).  See 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001); see also Barger v. Principi, 16 Vet. App. 132, 138 (2002). And, in any event, an appropriate VCAA compliant letter was provided to the Veteran in August 2010.




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ORDER

The appeal is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs