Citation Nr: 1324694	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  13-15 222	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Fort Harrison, Montana


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from February 2, 2009 through February 16, 2009.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. D. Simpson





INTRODUCTION

The Veteran had active duty service from October 1958 to June 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 administrative decision by the VA Network Authorization & Payment Center in Fort Harrison, Montana.  

Review of the Virtual VA electronic folder does not show any pertinent documents that have not already been associated with the physical claims folder. 

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. The Veteran incurred medical expenses as a result of treatment at a private hospital from February 2, 2009 through February 16. 2009; these services were not authorized by VA prior to receipt. 

2.  The unauthorized medical treatment did not concern a service connected disability.

3.  The Veteran has health insurance coverage through Medicare.  


CONCLUSION OF LAW

The criteria for reimbursement of unauthorized medical expenses incurred from February 2, 2009 through February 16, 2009 have not been met.  38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp 2012); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b) (2012). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ).  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). 

VA provided the Veteran with initial VCAA notice regarding his claim, in correspondence sent in September 2009, following the initial adjudication of the claim.  The actual VCAA notice letter was not placed in the claims folder, but documented as an attachment.  It is unclear as to whether it specifically discuss the criteria applicable to establishing reimbursement or repayment of unauthorized medical expenses, set forth at 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2012). 

A notice error is not prejudicial when the purpose of the notice was not frustrated. The purpose is not frustrated when "(1) a defect was cured by actual knowledge on the part of the claimant, (2) a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law."  George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). 

The Board finds that any notice error in this case did not affect the essential fairness of the adjudication because the defect was cured by actual knowledge on the part of the claimant.  In his May 2009 notice of disagreement, he demonstrated actual knowledge that his claim was denied because of the existence of Medicare coverage.  Hence, actual knowledge has been demonstrated, and the Veteran was aware of the legal criteria and missing evidence (i.e. absence of additional insurance coverage) necessary to establish his claim.  The claim was subsequently readjudicated by the AOJ in December 2009 and March 2013.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  The Board finds that the Veteran has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  A remand for further notification about how to substantiate the claim is not necessary.   

VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file consist of the Veteran's private medical treatment records and other VA and service treatment records.  The Veteran was not provided a medical opinion in connection with his claim.  38 C.F.R. § 3.159(c)(4).  In this instance, the Board finds the current record sufficient to make a decision on the claim as there is no outstanding medical determination necessary to adjudicate the claim. 

There is no indication that there is any relevant evidence outstanding for this claim, and the Board will proceed with consideration of the Veteran's appeal.

Analysis 

Emergency medical care received from a non-VA facilities requires authorization pursuant to 38 C.F.R. § 17.54 (2012).  Smith v. Derwinski, 2 Vet. App. 378 (1992). 

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 from February 2, 2009 to February 16, 2009.  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, 6 Vet. App. 555 (1994). 

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.

The Veteran has not asserted, nor does the record otherwise indicate, that he received prior VA authorization for the treatment he received at Longmont United Hospital from February 2, 2009 through February 16, 2009.  Malone v. Gober, 10 Vet. App. 539 (1997); see 38 U.S.C.A. § 1703 (West 2002 & Supp. 2010); 38 C.F.R. § 17.54.  

The Board has also considered entitlement under 38 U.S.C.A. § 1728 for entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility.  However, the Veteran does not meet the threshold requirement that the care and services rendered were either: (1) for an adjudicated service- connected disability, or (2) for a non- service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service- connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j) (2000)).  

Here, the Veteran is service connected for hearing loss and tinnitus with a combined rating of 10 percent.  He is not participating in a rehabilitation program.  The private emergency treatment beginning February 2, 2009, was for pulmonary emboli.  Thus, the Veteran is not entitled to reimbursement under 38 U.S.C.A. § 1728.  38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (2012); see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

This leaves a theory of entitlement pursuant to 38 U.S.C.A. § 1725 (The Veterans Millennium Health Care and Benefits Act).  It provides general authority for 

reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those Veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008 (2012). 

Pursuant to 38 C.F.R. § 17.1002, payment or reimbursement under 38 U.S.C.A. § 1725 for emergency treatment for nonservice-connected disabilities in non-VA facilities is only allowed if all of the listed criteria are met.  As relevant, criterion (f) requires that 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 the 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 for a denial of payment); 

The record shows that the Veteran had Medicare coverage at the time of treatment.  (See February 2009 Longmont Hospital Bill).  The Veteran also readily acknowledged having Medicare coverage in his May 2009 notice of disagreement.  The Veteran does not meet the subsection (f) criterion under 38 C.F.R. § 17.1002 and recovery pursuant to 38 U.S.C.A. § 1725 is not warranted.  

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from February 2, 2009 through February 16, 2009.  The benefit-of-the-doubt doctrine is therefore not applicable and the claim must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. 



ORDER

Payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from February 2, 2009 through February 16, 2009 is denied. 



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs