Citation Nr: 1322320 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 08-29 936A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Community Care Physicians from March 26, 2008, to April 27, 2008. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to January 1946 and from August 1946 to March 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 determination by the VA Medical Center in Albany, New York. In May 2013, the Veteran presented testimony in a video conference hearing before the undersigned. Additionally, at that time he submitted additional evidence which has not been reviewed by the agency of original jurisdiction. However, the Veteran indicated at that hearing that he was waiving such review, and also submitted a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2012). Thus, the Board will consider the newly submitted evidence in the first instance. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. Please note 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. From March 26, 2008, to April 27, 2008, the Veteran received private medical treatment. 2. The Veteran is only service-connected for bilateral hearing loss disability. 3. The Veteran was not eligible for reimbursement under 38 U.S.C.A. § 1728. 4. The Veteran had coverage under Medicare Parts A and B which paid for a portion of the private medical care at issue. CONCLUSION OF LAW The criteria for establishing entitlement to payment or reimbursement of private medical expenses have not been met for the private medical treatment provided to the Veteran from March 26, 2008, to April 27, 2008. 38 U.S.C.A. §§ 1703(a), 1725, 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.1000-17.1002, 17.1004 (2012); Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387§ 402 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA and its implementing regulations do not apply to claims for benefits governed by 38 C.F.R. Part 17 (the governing regulations for reimbursement of private medical expenses). See 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Moreover, in this case, it is the law, and not the evidence, that is dispositive. The United States Court of Appeals for Veterans Claims (Court) has held that when the law, and not the underlying facts or development of the facts, is dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, and not factual evidence, is dispositive). Accordingly, as the VCAA is not for application in this case, the Board finds that no further action is necessary. Analysis In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Following hip surgery in March 2008, the Veteran was transferred to a private rehabilitation facility. The Veteran contends that had he known that rehabilitation services at the private facility were not covered by VA he would not have had his surgery. The Veteran is seeking payment for the services rendered at the private rehabilitation facility. Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. As there is no indication from the record, nor has the appellant alleged, that he has a total disability or that his treatment at the private hospital 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 the purpose of ensuring entrance or continued participation in a vocational rehabilitation program under 38 U.S.C.A. Chapter 31, he is not eligible for benefits under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1728 and 38 C.F.R. §§ 17.120, 17.47(i). To be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), a veteran must 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 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 such provider beforehand 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 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.A. 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, 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) 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; (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. On October 10, 2008, the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President. This bill makes various changes to veteran's mental health care and also addresses other health care related matters. In pertinent part it amends 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728 to make mandatory, as opposed to discretionary, the reimbursement of the reasonable value of emergency treatment of an "eligible" veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402 (2008). Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or . . . such time as a Department facility or other Federal facility accepts such transfer if: (I) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. As the Veteran's claim is being denied on a basis not affected by the Veterans' Mental Health and Other Care Improvements Act of 2008, further discussion of the changes under this Act is not necessary. The criteria listed in 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; thus, all of the criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (finding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Veteran and his daughter testified that they were unaware the Veteran would be transferred to a private facility following his surgery. They also assert that if an earlier surgery had not been deferred by VA, the Veteran could have been taken care of at home by his wife, however, she was deceased at the time of the second surgery. The Veteran's daughter testified that she could not care for him at home after the surgery so outside rehabilitation or in-home assistance was required. They were told that the Veteran would be taken to the rehabilitation center at the VA Medical Center following the surgery but at some point, he was told that he might have to go to outside rehabilitation as there were not enough beds. They assumed that VA would pay the cost of non-VA rehabilitation. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing and asked questions to clarify the Veteran's contentions. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Review of the evidence of record reveals that the Veteran had coverage under Medicare Parts A and B during the time the medical treatment at issue was rendered. The record also shows that the bills incurred for the private treatment in question were paid in part by Medicare Part B; this payment constitutes a legal bar to reimbursement under 38 U.S.C.A. § 1725. More specifically, under 38 C.F.R. § 17.1002 (g), a veteran must have no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. As Medicare Parts A and B do constitute a health-plan contract, and, in fact, payment was made pursuant to that contract, the Veteran did have coverage and therefore did not meet the requirements listed under 38 C.F.R. § 17.1002. As noted above, the Veteran is only service-connected for a hearing loss disability, which is unrelated to his rehabilitation treatment. Furthermore, the record shows that he had Medicare Parts A and B coverage at the time of the claimed private medical treatment, which is a bar to the benefit sought. As each of the above-listed (a through i) criteria contained in 38 C.F.R. § 17.1002 must be satisfied in order to establish entitlement under 38 U.S.C.A. § 1725, there is no need to address whether any or all other requirements for such reimbursement have been met by the Veteran. The Veteran asserts that payment or reimbursement is warranted as he thought VA would pay for the private rehabilitation center. The Board is sympathetic to the Veteran's financial situation but, unfortunately, 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) (noting that "[t]his Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"). In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the Court held that, in a case where the law, as opposed to the facts, was dispositive of the claim, the claim should be denied because of absence of legal merit or lack of entitlement under law. Thus, as the Veteran's claim fails due to the absence of legal merit or lack of entitlement under the law, his claim must be denied. ORDER Entitlement to payment or reimbursement for unauthorized private medical expenses incurred from March 26, 2008, to April 27, 2008, is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs