Citation Nr: 1320001 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-09 941A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment received at Flagler Hospital in St. Augustine, Florida, on August 4, 2006. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active military duty from January 1979 to January 1982 and from August 1982 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. In April 2008, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record and has been reviewed. In May 2009, September 2011, and February 2013, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran's adjudicated service-connected disabilities include tinnitus and impaired hearing. 2. On August 4, 2006, the Veteran was transported by ambulance to the emergency room at Flagler Hospital, a non-VA hospital, after having been found unresponsive in his front yard; diagnoses were collapse and syncope. 3. The Veteran had not received VA medical services under 38 U.S.C. Chapter 17 within the 24 months preceding that August 4, 2006, non-VA treatment. CONCLUSION OF LAW The criteria are not met for payment or reimbursement of the unauthorized medical expenses incurred on August 4, 2006, at Flagler Hospital. 38 U.S.C.A. §§ 1703(a), 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.52(a), 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court/CAVC) has held, however that VCAA notification procedures do not apply in cases where the applicable Chapter of Title 38 of the United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in a case involving a waiver request). VCAA notice was not required in this appeal because the applicable regulatory notification procedure was contained in 38 C.F.R. § 21.1031 (2012) for claims under Chapter 1607. At any rate, the Board points out that VA afforded the Veteran with VCAA notice in June 2009, October 2011, November 2011, and April 2013 letters. After the Veteran was afforded all notice, his claim was subsequently readjudicated by way of a March 2013 supplemental statement of the case (SSOC). The Board therefore concludes all procedural due process concerns have been satisfied. See 38 C.F.R. § 3.103. The VAMC explained to the Veteran the bases for denial of his claim and afforded him the opportunity to present information and evidence in support of his claim. Significantly, there is no indication there is any existing evidence pertinent to the claim that has not been obtained. Analysis The Veteran seeks payment or reimbursement for unauthorized medical expenses incurred as a result of treatment received at Flagler Hospital, a non-VA hospital, in St. Augustine, Florida, on August 4, 2006. The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54. See also Malone v. Gober, 10 Vet. App. 539, 541 (1997) and General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. When a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for the treatment, specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether he has an adjudicated service-connected disability. Here, the Veteran is service-connected for tinnitus and bilateral hearing loss. The Veteran does not contend, nor does the evidence in the file suggest that the emergency treatment in question he received in August 2006 was for a service-connected disability. Rather, as mentioned, this emergency treatment was for a collapse and syncope, which was not medically associated to his tinnitus or impaired hearing. This necessarily precludes he meets any of the requirements of 38 U.S.C.A. § 1728 (a)-(c) for payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA, as these provisions all depend upon the existence treatment of a service-connected disability. There also is no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, which in certain instances might have qualified him under 38 U.S.C.A. § 1703(a) or 38 U.S.C.A. § 1728(d). Consequently, the only possible means to payment or reimbursement of these unauthorized medical expenses is by way of 38 U.S.C.A. § 1725, which pertains to treatment of disabilities that are not service connected pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Act). According to 38 U.S.C.A. § 1725, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17 .1008. To be eligible for payment or reimbursement under this alternative statute, the treatment must satisfy all of the conditions set forth in the regulatory provisions in 38 C.F.R. § 17.1002, as follows: (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 them before hand 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 transferred to a VA or other Federal facility (in other words, 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, such as 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. 1728 for the emergency treatment provided (38 U.S.C. 1728, as already explained, authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17 .1008. These above-noted 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]. Generally, a Veteran must be enrolled in the VA healthcare system as a condition to receiving medical benefits. 38 U.S.C.A. § 1710 (West 2002); 38 C.F.R. § 17.36(a) (2012). The Secretary determines which categories of Veterans are eligible to be enrolled, based upon enumerated priorities, with Veterans who do not have any service-connected disabilities assigned the lowest priority, or Priority Group 8. 38 C.F.R. § 17.36(b). After having reviewed the complete record, the Board finds that the Veteran's claim must be denied. Applicable here, 38 C.F.R. § 17.1002 (e) states that at the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services within the 24-month period preceding the furnishing of such emergency treatment. In this case, the record shows that the Veteran had enrolled in the VA healthcare system in October 1997. See March 2013 SSOC. However, the VAMC denied the Veteran's claim for payment or reimbursement because he had not received medical services in the VA health care system under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the August 4, 2006, non-VA medical treatment. At his April 2008 hearing before the undersigned VLJ, the Veteran testified that he did indeed receive medical care at a VA facility during the 24-month period preceding his August 4, 2006 emergency visit to Flagler Hospital. Hearing transcript (T.) at 3. In particular, according to the Veteran's testimony, he has received treatment at the VAMC in Gainesville, Florida since 2002. T. at 4, 9. Thereafter, the VAMC reviewed "VistaWeb" but it showed no activity for the Veteran in the VA health care system between August 5, 2004, and August 4, 2006. See June 2009 supplemental statement of the case. However, given the Veteran's reiteration of his contention that he had received medical services during the time period in question, the Board remanded the case in September 2011 for even further development, which included an attempt to obtain any treatment records from the Gainesville VAMC dated during the period in question. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Again, after a detailed and thorough search through "Vista Web" service and the VAH Support Service Center, the VAMC was unable to locate any VA treatment records dated between August 4, 2004, and August 4, 2006. Even still, pursuant to the most recent remand, an additional search for these records was conducted in April 2013, but to no avail. The Board acknowledges that the Veteran underwent a VA compensation examination in February 2005 to reassess his service-connected tinnitus and hearing loss. However, the VHA Chief Business Office clarified that VA compensation examinations do not fall under Chapter 17 of the U.S.C.; therefore undergoing a compensation examination, such as the one the Veteran attended in February 2005, does not qualify as having received medical services for purposes of this analysis. Based on the foregoing, there is no evidence showing that the Veteran had received medical services under 38 U.S.C. Chapter 17 within the 24 months prior to the non-VA treatment he received on August 4, 2006. The claim must therefore be denied. Because the Veteran does not meet one of the criteria for payment or reimbursement under Section 1725 (i.e. the Veteran had not received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of the emergency treatment), all of which must be met to warrant reimbursement, it is not necessary to analyze whether the claim meets the additional Section 1725 requirements. See 38 C.F.R. § 17.1002. The Board is bound by the law, and its decision is dictated by the relevant statutes and regulations. The Board is sympathetic to the Veteran's arguments but is unable to provide a legal remedy. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). The Board does not have authority to grant a claim simply because it might perceive the result to be inequitable. See 38 U.S.C.A. §§ 50, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Consequently, for the reasons and bases discussed, the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appeal must therefore be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment received at Flagler Hospital in St. Augustine, Florida, on August 4, 2006, is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs