Citation Nr: 1308701 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-41 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized private medical services received at St. Vincent's Medical Center on May 1, 2010. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida. In May 2012, the Board remanded the matter for additional development. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. On May 1, 2010, the Veteran was treated at St. Vincent's Medical Center for non-preauthorized (by VA) treatment for symptoms associated with kidney stones. 2. The treatment at St. Vincent's Medical Center on May 1, 2010, was not for a service-connected disability or for a non-service connected disability associated with and aggravating a service-connected disability; he was not totally disabled due to service connected disability; and he was not participating in a vocational rehabilitation program; and had not received medical services under 38 U.S.C.A., Chapter 17, within two years before the non-VA emergency treatment was furnished. CONCLUSION OF LAW The criteria for establishing entitlement to payment or reimbursement of unauthorized private medical expenses incurred on May 1, 2010 at St. Vincent's Medical Center are not met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-17.1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA notice is not required because the appeal involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the appellant ineligible for the claimed benefit). Regardless, the Veteran was provided with a VCAA notice letter dated in July 2012. On May 1, 2010, the Veteran arrived at St. Vincent medical center complaining of right flank pain and intermittent nausea was noted. The diagnosis was right kidney stone and he was discharged to home. The Veteran is seeking payment or reimbursement of the private medical expenses incurred on May 1, 2010. In claims involving payment/reimbursement by VA for medical expenses incurred for treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). The Veteran has not claimed, and the evidence does not show, that he had (or sought) prior authorization from VA for non-VA care for kidney stones. If payment was not pre-authorized, the analysis proceeds to whether payment or reimbursement for the non-preauthorized services is warranted. When a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that provide for payment or reimbursement for the medical expenses thus incurred, 38 U.S.C.A. §§ 1725 and 1728. Which statute applies is generally dependent upon whether he has an adjudicated service-connected disability. The Veteran has no service connected disabilities. Likewise, he does not allege, and the record does not show, that he was participating in a vocational rehabilitation program. As the medical treatment in question was not for a service-connected disability (or a non-service connected disability aggravating a service-connected disability), as the Veteran is not totally disabled due to service-connected disability, and as he was not participating in a vocational rehabilitation program, the criteria for payment or reimbursement under 38 U.S.C.A. § 1728 are not met. The Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. The circumstances under which entitlement to payment or reimbursement may be provided under § 1725 are highly limited. To establish entitlement under this statute, each of the following conditions must be met: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility 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 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) The veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C., Chapter 17 within two years before the non-VA emergency treatment; (f) The veteran is financially liable to the non-VA provider of the emergency 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 the 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) The veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. 38 C.F.R. § 17.1002 (2012). The criteria under 38 C.F.R. §§ 17.1002 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met]. Although the record reflects that he was enrolled in the health care system established under 38 U.S.C.A. § 1705(a), he did not receive care under the system within the 24-month period preceding the furnishing of the emergency treatment. The Veteran's assertion that such was a mere technicality is without merit. In its consideration of appeals, the Board "is bound by applicable statutes and regulations of the Department of Veterans Affairs. 38 C.F.R. § 19.5 (2012). The Veteran does not meet requirement (e) of those listed above. See 38 U.S.C.A. § 1725(f)(2); 38 C.F.R. §§ 17.1001(a), 17.1002 (2012). Consequently, he is barred from this benefit sought as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to payment or reimbursement for private medical services received at St. Vincent's Medical Center on May 1, 2010, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs