Citation Nr: 1321002	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  07-20 647A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York


THE ISSUE

Entitlement to reimbursement for, or payment of, unauthorized medical expenses incurred from February 16, 2006, to April 5, 2006, at the University of Rochester Medical Center - Strong Memorial Hospital (Strong Hospital), and on May 14, 2006 at F. F. Thompson Hospital (Thompson Hospital).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served on active duty from March 1971 to May 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from determinations of the VA Medical Center (VAMC) located in Canandaigua, New York that denied reimbursement for, or payment of, unauthorized medical expenses.

In his substantive appeal, the Veteran requested a Travel Board hearing, which was scheduled for May 2010.  The Veteran, however, was unable to appear, and the Travel Board hearing was rescheduled for May 2012 pursuant to a November 2011 Board remand.  The Veteran failed to appear, and has not shown or asserted good cause.  Based thereon, the Veteran's request for a Travel Board hearing is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012).

In October 2012, this matter was remanded by the Board for further development.  Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review.  

The issues of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, and whether new and material evidence has been received sufficient to reopen a claim of entitlement to waiver of an overpayment, have been raised by the record but have not been adjudicated by the agency or original jurisdiction (AOJ).  See Brief, June 2013; Correspondence, May 2013 (virtual VA).  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for adjudication.

FINDINGS OF FACT

1.  The Veteran received unauthorized medical care at Strong Hospital between  February 16, 2006, and April 5, 2006, relating to non-service connected pulmonary conditions, and at Thompson Hospital on May 14, 2006 relating to non-service connected gastroenteritis; VA did not contract for such care.

2.  The Veteran is covered under Medicare Part A, which health care plan paid a portion of the medical expenses incurred for his treatment at Strong Hospital between February 16, 2006, and April 5, 2006, and at Thompson Hospital on May 14, 2006.


CONCLUSION OF LAW

Entitlement to reimbursement of or payment for non-VA medical expenses incurred for treatment between February 16, 2006, and April 5, 2006, at Strong Hospital, and on May 14, 2006 at Thompson Hospital, is not warranted as a matter of law.  38 U.S.C.A. §§ 1703, 1710, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.1001, 17.1002 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In this particular case involving reimbursement of an unauthorized medical expenses, because the law and not the facts is dispositive, the Board finds that any error regarding the VCAA is nonprejudicial.  Specifically, as will be discussed below, even if the facts as presented by the claimant are presumed to be true, entitlement to the benefit sought must be denied.  Accordingly, the duty to notify and the duty to assist need not be discussed.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002) ("[B]ecause the law as mandated by statute, and not the evidence, is dispositive of this claim, the VCAA is not applicable."); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where law, and not evidence, is dispositive, claim should be denied or appeal terminated because of lack of legal merit); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) ("[S]trict adherence [to the law] does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case.  Such adherence would result in this Court's unnecessarily imposing additional burdens on the BVA . . . with no benefit flowing to the veteran."); Valiao v. Principi, 17 Vet. App. 229, 231-232 (2003) (failure to provide VCAA notice is nonprejudicial error "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision."); Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005) (notice error nonprejudicial where facts averred could not result in an award of benefits); Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005) (lack of prejudice may be established by demonstrating that a benefit could not possibly have been awarded as a matter of law).

As noted in the introduction above, in October 2012, this matter was remanded by the Board for further development, including so that any and all records relating to the Veteran's treatment in issue herein from Strong Hospital and Thompson Hospital could be obtained, including but not limited to any communications that might verify that such treatment was authorized or contracted for by VA.  Pursuant to the Board's remand directive, all available records and communications have been associated with the claims file, and this matter was readjudicated by way of a December 2012 Supplemental Statement of the Case (SSOC).  Therefore, the Board finds that there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

II. Analysis

The Veteran appeals the denial of his claim for payment or reimbursement by VA for non-VA medical expenses incurred from February 16, 2006, to April 5, 2006, at Strong Hospital for pulmonary conditions, and on May 14, 2006 at Thompson Hospital for gastroenteritis.  The Board notes that the Veteran is not service-connected for any disabilities.  He has been in receipt of non-service connected pension since December 26, 2002.

By way of background, a February 14, 2006 VA treatment record reflects that the Veteran was referred for a pulmonary consult (within VA) due a low-grade fever, elevated white blood cell count, and a question of histiocytosis, chronic infection, and lung nodules in the past.  

Two days later, a February 16, 2006 Strong Hospital treatment record reflects that the Veteran presented to the emergency room complaining of wheezing, shortness of breath, and weight loss.  A CT scan revealed, among other things, some opacities and emphysema, and the Veteran was discharged to home the same day.  The patient account detail form reflects that there was no referring physician.

A February 21, 2006 Strong Hospital treatment record reflects that the Veteran was seen for pulmonary evaluation by Dr. I.P.  The patient account detail reflects that there was no referring provider.

February 23, 2006 Strong Hospital records reflect that a chest x-ray, bronchial brush, and transbronchial biopsy were performed.  Again, the patient account detail reflects that there was no referring provider.

A February 28, 2006 VA telephone encounter note reflects that the Veteran's wife called and reported that since his lung biopsy at Strong Hospital, he had been experiencing fever, chills, weakness, and nausea.  It was noted that the Veteran was advised "that because this is emergent in nature that [sic] veteran should go to the nearest emergency room at Thompson Hospital to be evaluated."  This note was prepared by a nurse, and the receipt was acknowledged by Dr. M.R.

A March 2, 2006 letter from Dr. I.P. at Strong Hospital to Dr. M.R. at the VAMC reflects that a lung biopsy was recommended relating to lung nodules to rule out, among other things, sarcoidosis.

A March 20, 2006 VA treatment record prepared by Dr. M.R. reflects that he referred the Veteran for a consult with the infectious diseases department (VA).  

A March 23, 2006 Strong Hospital treatment record reflects that another chest x-ray was performed.  Again, the patient account detail reflects that there was no referring provider.

A March 27, 2006 VA treatment record prepared by Dr. M.R. reflects that he referred the Veteran for a consults (VA) with endocrinology and for a G.I. consult.

A March 28, 2006 Strong Hospital treatment records and a letter from Dr. I.P. of the same date reflects that a lung expansion evaluation status-post VATS procedure had been performed, as well as a bronchoscopy and lung biopsies.  Again, the patient account detail reflects that there was no referring provider.  

An April 5, 2006 Strong Hospital treatment record and an April 6, 2006 letter from Dr. I.P. to Dr. M.R. of the VAMC reflect that the Veteran was seen for a post-operative visit and pathology records showed evidence of pulmonary histiocytosis, but no malignancy was seen.  

A May 3, 2006 VA pulmonary consultation record reflects that the Veteran was diagnosed with histiocytosis X, and noted some bronchiolitis as well, and that it was due to his cigarette smoking.

May 14, 2006 private treatment records from Thompson Hospital reflect that the Veteran presented to the emergency room complaining of right lower quadrant pain, nausea, and diarrhea for three days.  Appendicitis was excluded.

The bills from Strong Hospital for the above treatment at that facility reflect that the Veteran had Medicare Part A coverage, which paid a portion of the charges.

The Board also notes that certain VA treatment records dated between March 2006 and May 2006 reflect that the Veteran was referred, including by Dr. M.R., for hematology consultation, infectious diseases consultation, endocrinology, and a pulmonary consult, but all referrals were for treatment at VA facilities.  See, e.g., January 18, 2006, February 14, 2006, March 27, 2007, April 26, 2006.  There is no record of any contract or referral for services between VA and any non-VA facility.

Under 38 U.S.C.A. § 1703, VA may contract for hospital care and medical services in non-VA facilities when VA facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required.  In such cases, "the admission of a veteran to a non-Department of Veterans Affairs hospital at Department of Veterans Affairs expense must be authorized in advance.  In the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others in his or her behalf is dispatched to the Department of Veterans Affairs . . . within 72 hours after the hour of admission."  38 C.F.R. § 17.54(a) (2012) (emphasis added).

Because there is no evidence that the Veteran's treatment at Strong Hospital or Thompson Hospital was authorized in advance by VA, and because, in the case of the emergency treatment, the Veteran did not file any application for authorization within 72 hours, payment or reimbursement under the provisions of 38 U.S.C.A. § 1703 is not for application.  The Board emphasizes that none of the above treatment records from VA, Strong Hospital, or Thompson Hospital reflect that the Veteran's private care at Strong and Thompson was ever authorized or "contracted for."  

The Board acknowledges that the Veteran asserts that he was told by Dr. M.R. at the VA medical center to go to the emergency room at Strong Hospital for his pulmonary condition.  See, e.g., Form 9.  The Board notes again, however, that this is not reflected in the VA records.  Rather, as shown above, the Veteran was referred by Dr. M.R. for treatment at the VA medical center.  Therefore, the Board finds the Veteran's assertion to be not credible in light of the contradictory documentation in his medical records, including the documented referrals made by Dr. M.R. himself.

When a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that provide for payment or reimbursement - 38 U.S.C.A. §§ 1725 and 1728.

Under 38 U.S.C.A. § 1728, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities where:

a) Care or services not previously authorized were rendered to a Veteran in need of such care or services for as follows:  (1) An adjudicated service-connected disability; (2) nonservice- connected disabilities associated with and held to be aggravating an adjudicated service- connected disability; 
(3) any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) any illness, injury, or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in Section 17.48(j);

b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and

c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.

See also 38 C.F.R. § 17.120 (2012).

The Board finds that payment or reimbursement under 38 U.S.C.A. § 1728 is not warranted because the Veteran is not service-connected for any disability, including those for which he received treatment at Strong Hospital and Thompson Hospital, he is not rated as totally disabled for any service-connected condition, and he is not participating in a rehabilitation program under 38 U.S.C.A. Chapter 31.

Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-17.1008 (the implementing regulations).  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999), which provides general authority for the reimbursement of non-VA emergency treatment. To be eligible for reimbursement under 38 U.S.C.A. § 1725, the Veteran has to 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 lay person 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 lay person 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 lay person (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;

e) The veteran was enrolled in the VA health care system at the time of 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 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) The Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for or in part, the Veteran's liability to the provider;

i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 1728 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).

See 38 C.F.R. § 17.1002 (2012).

VA regulations define a "health plan contract" for 38 U.S.C.A. § 1725 purposes to include an insurance program described in section 1811 of the Social Security Act (42 U.S.C.A. 1395c), i.e., Medicare Plan A, or section 1831 of that Act (42 U.S.C.A. 1395j), i.e., Medicare Plan B, and state plans for medical assistance approved under title XIX of the Social Security Act (42 U.S.C.A. 1396 et. seq.), i.e., Medicaid.  See 38 C.F.R. § 17.1001(a) (2012).

The above-noted criteria are conjunctive, not disjunctive; thus all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive 'and' in a statutory provision meant that all of the conditions listed in the provision must be met). As such, failure to satisfy any of the criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility.  See 38 U.S.C.A. § 1725(b) (West 2002); 38 C.F.R. § 17.002(g).  

The Board acknowledges that 38 U.S.C.A. § 1725 was amended, effective October 10, 2008.  Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110 (2008).  However, because the Veteran's claim was filed prior to the effective date of the amendments, the amended version of the statute does not apply in this case.  Specifically, in this matter, the Veteran is not seeking prospective relief by way of the payment of monthly disability compensation payments, but rather is seeking reimbursement for a debt or financial obligation previously incurred.  As such, the Board finds that the change should not be applied retroactively.  Princess Cruises v. United States, 397 F.3d 1358, 1363-64 (Fed. Cir. 2005); see also VAOPGCPREC 7- 2003 (Nov. 19, 2003) (discussing that most statutes and regulations liberalizing the criteria for entitlement to a benefit may be applied to pending claims because they would affect only prospective relief).

After full consideration of the evidence of record, including the Veteran's statements, the Board concludes that because the Veteran was covered by a health plan as defined by 38 C.F.R. § 17.1002 (namely, Medicare Part A) with regard to his treatment at Strong and Thompson hospitals between February 2006 and May 2006, which plan paid for a portion of these medical expenses, his claim must be denied under 38 U.S.C.A. § 1725 as a matter of law, as he does not meet all of the requirements of 38 C.F.R. § 17.1002 and, therefore, reimbursement is prohibited.  Based thereon, the Board need not discuss whether he meets any of the other criteria, as the failure to meet any of the criteria set forth in 38 C.F.R. § 17.1002 precludes payment or reimbursement of unauthorized medical expenses.  See Melson, 1 Vet. App. at 337.

The Board notes that in 2005, Senate Bill 1182 (Veterans' Health Care Act of 2005) proposed an amendment to 38 U.S.C.A. § 1725 to allow for reimbursement for certain non-VA facility medical expenses incurred by veterans who only received partial reimbursement and remained personally liable on the remainder of the medical bill.  To date, however, the proposed amendment has not been enacted and, unfortunately, no other provision of law allows for such reimbursement.

While the Board is sympathetic toward the Veteran, the Board regrettably concludes that under the provisions for payment or reimbursement of non-VA facility medical expenses, the Veteran's claim must be denied as a matter of law.  38 U.S.C.A. §§ 1725, 1728; 38 C.F.R. § 17.1002.  The benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b).

ORDER

Entitlement to reimbursement for, or payment of, unauthorized medical expenses incurred from February 16, 2006, to April 5, 2006, at the Strong Hospital, and on May 14, 2006 at Thompson Hospital, is denied.



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs