Citation Nr: 1315480 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-48 526 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from August 11, 2010 to August 12, 2010. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from March 23, 2011 to March 26, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968 and from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the VA Medical Center in Gainesville, Florida. FINDINGS OF FACT 1. The Veteran received private inpatient medical care from August 11, 2010 to August 12, 2010 and from March 23, 2011 to March 26, 2011. 2. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728. 3. The Veteran has Medicare Part A insurance. 4. Early parts of each hospitalization were reimbursed by the VA while emergent treatment was needed. Payment was not authorized once appellant was stabilized. There is no indication during either hospitalization that contact or transfer to the VA was contemplated or attempted. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from August 11, 2010 to August 12, 2010, have not been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17 .1002 (2012). 2. The criteria for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from March 23, 2011 to March 26, 2011, have not been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17 .1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Because the record in this case shows that undisputed facts demonstrate that the Veteran's claim for reimbursement of payment of unauthorized medical expenses is barred by applicable statutory and regulatory provisions, the Board finds that the VCAA does not apply to this appeal. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004. The Veteran seeks reimbursement or payment of the costs associated with medical services he received at Munroe Regional Medical Center from August 11, 2010 to August 12, 2010. On August 4, 2010, the Veteran was admitted through the emergency room for left hip injury sustained in a fall. X-rays showed a displaced subcapital fracture, and on August 6, 2010, the Veteran underwent bipolar hemiarthroplasty left hip. VA has authorized reimbursement/payment of the costs associated with medical service received from August 4, 2010 to August 10, 2010. It was determined that he was medically stable as of that date. It is also of record that appellant had Medicare A coverage as of August 1, 2010. The Veteran also seeks reimbursement or payment of the costs associated with medical services he received at Munroe Regional Medical Center from March 23, 2011 to March 26, 2011. On March 21, 2011, the Veteran was admitted through the emergency room for increased shortness of breath. The Veteran was intubated in the emergency room and placed on a mechanical ventilator. VA has authorized reimbursement/payment of the costs associated with medical service received from March 21, 2011 to March 22, 2011 when he was deemed to have been stabilized. It was also determined that he had Medicare A coverage. The Veteran asserts that the treatment he received at Munroe Regional Medical Center in August 2010 and March 2011 was rendered in a medical emergency. VA did not authorize payment or reimbursement for such treatment because he has Medicare Part A insurance. 38 U.S.C.A. § 1728(a) provides that VA may 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 or services were rendered to a Veteran (A) for an adjudicated service-connected disability, (B) for a non service-connected disability associated with and held to be aggravating a service-connected disability, (C) 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. 38 C.F.R. § 17.120. All three of these statutory requirements must be met before payment may be authorized. Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The Veteran does not contend that his August 2010 or March 2011 treatment was for a service-connected disability. There is no indication in the record that the treatment in August 2010 or March 2011 was in any way related to prostate cancer, diabetes mellitus, type II, or erectile dysfunction, the only disabilities for which the Veteran has been granted service connection. In addition, although the Veteran's prostate cancer is current rated as 100 percent disabling, the Veteran has been notified, most recently in the February 2010 rating decision, that since there is a likelihood of improvement, the assigned evaluation was not considered permanent and is subject to a future review examination. The Veteran does not meet the second criterion of the three criteria which must be met in order to qualify for payment or reimbursement under 38 U.S.C.A. § 1728 of the cost of treatment August 11, 2010 to August 12, 2010 and March 23, 2011 to March 26, 2011 rendered by Monroe Regional Medical Center. 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 & Supp. 2012). 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) (2012). 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.'" Even if some of the medical expenses from the Veteran's treatment in August 2010 and March 2011 were not completely covered by Medicare, this is not relevant under the foregoing statute and regulation. VA is not authorized to pay or reimburse unauthorized medical expenses where a health-plan contract covers the cost of medical expenses either "in whole or in part." See 38 C.F.R. § 17.1002(f) The evidence in this case is unequivocal. The VA paid reimbursement for the early part of each hospitalization during emergent treatment. It has been medically determined that emergent treatment ended and those periods were not reimbursed. The Veteran has a health-plan contract as defined by the statute. He has not disputed this fact. This coverage is a bar to payment by VA beyond that paid for emergent treatment. See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(f). Although the Board understands the Veteran is frustrated by VA's failure to pay for expenses that Medicare may not cover 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 claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is also noted that appellant has indicated that he tried to get transferred to the VA but was unable to. The record does not reflect that there was contact with the VA during the hospitalizations. As noted, reimbursement was made during emergent treatment, and is precluded once stable and Medicare Part A is available. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from August 11, 2010 to August 12, 2010, is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Munroe Regional Medical Center from March 23, 2011 to March 26, 2011, is denied. ___________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs