Citation Nr: 1312856 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 12-05 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of ambulance transportation by the Century Ambulance Service Inc. from the Baptist Medical Center Nassau to the Baptist Medical Center Downtown on October 31, 2011. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at the Baptist Medical Center Downtown from November 2-4, 2011, and on November 7, 2011. ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and December 2011 decisions from the North Florida/South Georgia Veterans Health System in Gainesville, Florida. This case was remanded by the Board in September 2012 for additional evidentiary development and readjudication. Such development having been completed, it has been returned to the Board for further appellate review. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran received private emergency transportation services and private hospital care between October 31, 2011 and November 7, 2011. 2. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728. 3. The Veteran has Medicare Part A and B insurance. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement of unauthorized medical expenses incurred as a result of ambulance transportation by the Century Ambulance Service Inc. from the Baptist Medical Center Nassau to the Baptist Medical Center Downtown on October 31, 2011 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). 2. The criteria for payment or reimbursement of unauthorized medical expenses incurred at the Baptist Medical Center Downtown from November 2-4, 2011, and on November 7, 2011, 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 CONCLUSIONS 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)). 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012) 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 January 2012 and November 2012. 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. Here, the only evidence necessary to decide the claim revolves around what transpired from October 31, 2011 to November 7, 2011. After reviewing the Veteran's claim, the Board, in September 2012, remanded the claim to the VAMC in Gainesville. The VAMC was tasked, in large part, to discover whether the Veteran was receiving benefits through Medicare, and whether any of his medical expenses had been paid following submission of those bills to the appropriate source (Social Security Administration). Through an internal inquiry the VAMC discovered that the Veteran was indeed covered by Medicare Part A and Part B. Additionally, the VAMC also contacted the ambulance company that provided the Veteran with transportation and discovered what expenses had been paid to the company along with what portion of expenses had been paid by the Veteran. This information was noted in the December 2012 Supplemental Statement of the Case. Based on the foregoing, the Board finds that the VAMC substantially complied with the mandates of the Board's remand instructions. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 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 issues 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 transportation services and medical care that he received between October 31, 2011 and November 7, 2011. He essentially argues that the symptoms for which he sought treatment constituted a life-threatening medical emergency and that he was advised by a VA nurse to have someone drive him to the nearest hospital emergency room. He also asserts that over the last several years, for financial reasons, he has used the VA healthcare system exclusively as his expenses are covered 100 percent. He believes, therefore, that the VA should reimburse him for the care he received. See Notice of Disagreement received in December 2011 and VA Form 9 (with attachment) received in January 2012. According to the Veteran's daughter, she called VA on October 31, 2011, about her father's complaints of chest pain. She reported that she was told to bring the Veteran to the nearest emergency room for treatment. The Veteran was brought by his daughter to the Baptist Medical Center Nassau, where he was informed that he was having a heart attack. He was then transferred via ambulance to the Baptist Medical Center Downtown for further treatment. A January 2012 statement from the Veteran's daughter indicates that he was hospitalized for approximately 17 days. However, the claims received from the Baptist Medical Center Downtown indicate that payment was being sought only for services rendered for the dates November 2-4, 2011, and November 7, 2007. Therefore, it appears that some of the Veteran's private medical expenses were paid. An October 31, 2011, health insurance claim form from the Century Ambulance Service Inc. indicates that the Veteran had Medicare. The evidence of record includes an undated internal document generated by the VAMC which shows that the Veteran had been enrolled in Medicare Part A and Medicare Part B since January 2010. Also of record are VA outpatient treatment records which include an entry dated in November 2011. At that time the Veteran had initiated dialysis and began treatment at a private facility on November 11, 2011. Of significance though is his request for VA authorization to cover the costs of dialysis as he would be unable to absorb the 20 percent copay Medicare. See VA progress note dated November 21, 2011. The November 2011 and December 2011 administrative decisions informed the Veteran that his claims were denied on the basis that he had Medicare Part A and Part B at the time of the private medical treatment at issue. In his December 2011 notice of disagreement, the Veteran reported that he did not have any third party insurance and that he had not had such insurance for three or four years. A January 2012 statement from his daughter indicates that the Veteran thought that he had cancelled his Medicare four years earlier; however, a deduction was being taken from his Social Security payment for Medicare. Unfortunately, based on a review of the record, the Board finds that payment or reimbursement of the unauthorized medical expenses incurred on October, 31, 2011, November 2-4, 2011 and November 7, 2011, is not warranted. There is no indication from the record, nor has the Veteran alleged, that he meets any criterion for benefits under 38 U.S.C.A. § 1728 (applicable where a veteran has a total disability, or, the treatment at the private medical facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program). See 38 C.F.R. §§ 17.120, 1747(i). Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725. Under 38 U.S.C.A. § 1725, a veteran is only considered to be "personally liable" for treatment if he/she has no entitlement to care or services under a health-plan contract, which 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 expenses of such services are paid. See 38 U.S.C.A. § 1725(b)(3)(B) (West 2002). In addition, the provision at 38 U.S.C.A. § 1725(f)(2)(A) (West 2002) defines a health-plan contract to include 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 expenses of such services are paid. This definition includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j ). See 38 U.S.C.A. § 1725(f)(2)(B). 42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B. That is, the law and regulations specifically exclude payment under the Millennium Act if the appellant has coverage under either Medicare Part A or Medicare Part B. The Board notes that 38 U.S.C.A. § 1725 was amended 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. The applicable regulation for claims under 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1002, provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses. Included in the list of conditions is the requirement that the claimant have no coverage under a health-plan contract for payment, in whole or in part, for the emergency treatment. 38 C.F.R. § 17.1002(f). Effective May 21, 2012, VA published a final rule in the Federal Register amending 38 C.F.R. § 17.1002 to conform to the 2010 statutory changes. See 77 Fed. Reg. 23,615 (April 20, 2012). In the Supplementary Information section, VA specifically addressed a commenter's suggestion that VA remove the term "or in part" from current § 17.1002(f). VA noted that the 2010 statutory changes removed the term "or in part" from 38 U.S.C.A. § 1725(b)(3)(C) (pertaining to contractual or legal recourse against a third party) and that section 1725(b)(3)(B) (pertaining to a health-plan contract) had no such revisions. VA stated, "In other words, section 1725(b)(3)(B) requires that the veteran have 'no entitlement to care or services under a health-plan contract,' which means that any entitlement, even a partial one, bars eligibility under section 1725(b) . . . The current language of § 17.1002(f) clarifies the language of section 1725(b)(3)(B) by reiterating the veteran's liability for emergency treatment if such veteran has no health-plan contract 'in whole or in part.'" The evidence in this case is unequivocal. The Veteran has a health-plan contract as defined by the statute. The Board's conclusion in this regard is further buttressed by the November 2012 response from the Florida/Caribbean CPAC confirming that the Veteran was covered under Medicare Part A and Part B. 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(f). As the Veteran does not satisfy at least one of the requisite criterion set forth above, reimbursement under the provisions of 38 U.S.C.A. § 1725 & 38 C.F.R. § 17.1002 cannot be granted. While the Board recognizes that there are financial difficulties that arise from unexpected medical expenses and is sympathetic toward the Veteran, it is bound by the law, and its decision is dictated by the relevant statute and regulations. The Veteran's claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of ambulance transportation by the Century Ambulance Service Inc. from the Baptist Medical Center Nassau to the Baptist Medical Center Downtown on October 31, 2011 is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at the Baptist Medical Center Downtown from November 2-4, 2011, and on November 7, 2011 is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs