Citation Nr: 1322819	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  13-02 980	)	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 for medical care received at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012.


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel



INTRODUCTION

The Veteran had reported active duty service from May 1976 to August 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from  determinations of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida.  

As a final preliminary note, the Board observes that it does not appear that the Veteran has a Virtual VA electronic folder. 


FINDINGS OF FACT

1.  The Veteran is not currently service-connected for any disability.

2.  The Veteran received medical care that was provided at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012.  

3.  The evidence does not reveal that VA approved a request for prior authorization for the medical services in question.

4.  The Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses for medical care received at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012, have not been met.  38 U.S.C.A. §§ 1725, 5107 (West 2002); 38 C.F.R.  §§ 17.120, 17.121, 17.1000, 17.1002 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Board notes that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA generally has a statutory duty to assist the Veteran in the development of a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, as the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA).   Barger v. Principi, 16 Vet. App. 132 (2002).  Similarly, the statute at issue in this matter is not found in Chapter 51, but rather, in Chapter 17.  However, in Beverly v. Nicholson, 19 Vet. App. 394, 403 -04 (2005), although not explicitly stated, the United States Court of Appeals for Veterans Claims (Court) appeared to assume that the VCAA was applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. 

The Board also observes that the provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R Part 17 contain their own notice requirements.  Further, regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses.  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 payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, 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. 

In this case, the Board finds that the notification provisions of Chapter 17 have been satisfied, as have been the duties to assist and notify under the VCAA (assuming it is applicable).  All relevant evidence necessary for the equitable disposition of the appeal has been obtained and that additional efforts to notify or assist the Veteran in the development of this case are not required.  Specifically, the Board finds that, in correspondence dated in November 2012, the VAMC advised the Veteran of VA's duties to notify and assist under the VCAA.  This letter specified what the evidence must show to establish entitlement to reimbursement of unauthorized medical expenses incurred by the Veteran.  Further, private treatment records from June 26, 2012 through June 27, 2012, which are the subject of this appeal, have been associated with the record.  The Board also notes that the Veteran has indicated that she is receiving Social Security Administration (SSA) disability benefits.  Nevertheless, the Board finds that these records are not pertinent to the current claim as they do not address the hospitalization in question and, thus, there is no need to obtain them.  See Hayes v. Brown, 9 Vet. App. 67, 74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  In addition, no medical examination is warranted in this case as the outcome depends upon whether the Veteran had other health care coverage and not on the current nature and/or etiology of a specific medical condition. 

Moreover, in this case the Board finds that the Veteran does not satisfy the legal requirements for payment of or reimbursement of the unauthorized medical expenses.  As such, it is the law, and not the evidence, that is dispositive.  The 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).

Analysis

The Veteran is seeking entitlement to reimbursement or payment for unauthorized medical expenses incurred at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012.  Initially, in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012.  See 38 U.S.C.A.  § 1703(a); see also 38 C.F.R. § 17.54.  This is a factual, not a medical, determination.  Similes v. Brown, 5 Vet. App. 555 (1994).  

In this case, the Veteran has asserted that she contacted the Gainesville VAMC by telephone prior to seeking treatment at Munroe Regional Medical Center and was told that she should go to the closest emergency room and that VA would pay for the treatment.  A June 26, 2012 administrative note from the Gainesville VAMC does note that the Veteran called the VAMC and reported active chest pain.  She was advised to call 911 and be seen at the nearest emergency center.  However, there is nothing in this notation that indicates any authorization to pay for medical expenses.  The advice given over the telephone merely appears to be standard advice provided when a patient calls with a possible emergent condition.  It appears that the Veteran may have assumed from this conversation that authorization was given, but based on the notation, no such authorization was discussed or considered.  As such, the Board finds that prior authorization for any incurred medical expenses was not given by the VAMC.   
  
Nevertheless, to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation may be paid on the basis of a claim timely filed, under the following circumstances:

(a)  Care or services not previously authorized were rendered to a veteran in need of such care or services: 

(1)  For an adjudicated service-connected disability;

(2)  For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability;

(3)  For any disability of a veteran who has a total disability permanent in nature, resulting from a service- connected disability;

(4)  For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C.A. § Chapter 31 and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.48(j); and

(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 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

In the instant case, the Veteran does not meet all of the criteria of 38 C.F.R. § 17.120(a) because service connection is not in effect for any disability.  Additionally, there is no evidence that the Veteran is participating in a rehabilitation program.  Importantly, the provisions in 38 C.F.R. § 17.120 are conjunctive, not disjunctive; thus, all the provisions 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 in order for an increased rating to be assigned].  

Although the criteria of 38 C.F.R. § 17.120 have not been met, it must still be considered whether payment or reimbursement for the emergency services for nonservice-connected conditions in non-VA facilities can be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177.  The provisions of the Act became effective as of May 29, 2000.  To be eligible for reimbursement under this authority 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 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;

(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, 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 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.

The Board observes that these criteria are also 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 in order for an increased rating to be assigned].

On June 26, 2012, after calling the Gainesville VAMC, the Veteran presented to the emergency room at Munroe Regional Medical Center for chest pain.  Of note, she had previously had a heart attack in July 2011 and was treated at the same facility.  The Veteran reported that the pain was different from the pain she experienced a year ago.  Initial cardiac work-up done in the emergency room was negative, but she was admitted to the hospital for further work-up.  It appears that after additional tests were done with no further findings, she was discharged the following day.   

In determinations dated in July and August 2012, the Veteran was denied VA financial assistance for the emergency treatment that she received in June 2012 under the Veterans Millennium Health Care and Benefits Act because it was found that she had other third party insurance coverage.  

The Veteran has not disputed that she has other insurance.  In fact, in statements of record, she had conceded that she other insurance.  Rather, she has asserted that she did not want to use her other insurance because of a co-pay requirement, but wanted to have VA pay for the expenses.  Again, she has primarily claimed that VA authorized her to go to the emergency room and indicated that it would pay for the cost.  However, as discussed above, the Board had determined that no such authorization or promise of payment was given.  

In conclusion, a review of the record indicates that the Veteran does have additional third party insurance, which she has not disputed.  Therefore, reimbursement for the medical expenses incurred in connection with hospitalization from June 26, 2012 through June 27, 2012, at Munroe Regional Medical Center is not permitted.  

In reaching this decision, the Board notes that it is bound by the law, and its decision is dictated by the relevant statutes and regulations.  As the Veteran does not meet one of the criteria for payment or reimbursement under 38 U.S.C.A. 
§ 1725 and 38 C.F.R. §§ 17.1000-1008 (i.e. the Veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for 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.  Accordingly, the claim must be denied.  

ORDER

Payment or reimbursement of unauthorized medical expenses for medical care received at Munroe Regional Medical Center from June 26, 2012 through June 27, 2012, is denied. 



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs