Citation Nr: 1326369 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-27 425A ) DATE ) ) On appeal from the Department of Veterans Affairs Nebraska-Western Iowa Health Care System THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred at Saint Elizabeth Regional Medical Center from December 15, 2011 through December 18, 2011. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1942 to October 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2012 decisions by the Nebraska-Western Iowa Health Care System. In his October 2012 substantive appeal the Veteran requested a videoconference hearing before the Board. Such hearing was scheduled, but the claims-file contains documentation from July 2013 explaining that the Veteran was unable to attend. He has not requested to reschedule the hearing, including in subsequent statements and correspondence submitted in connection with this appeal. 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's service-connected disabilities have been rated totally disabling. 2. The Veteran's treatment at Saint Elizabeth Regional Medical Center from December 15, 2011 through December 18, 2011 was not formally authorized by VA; it was not for a medical emergency; VA medical facilities were feasibly available; an attempt to use them or obtain VA authorization for private treatment before seeking such treatment would have been reasonable; and the Veteran had Medicare Parts A and B health insurance coverage. CONCLUSION OF LAW The criteria for establishing entitlement to payment or reimbursement of private medical expenses by VA are not met for treatment the Veteran received at Saint Elizabeth Regional Medical Center from December 15, 2011 through December 18, 2011. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.52, 17.120, 17.1000-17.1005 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Significantly, this claim is governed by the provisions of Chapter 17 of Title 38 of the United States Code. There is caselaw to the effect that the VCAA and its implementing regulations do not apply in this matter. See Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002). However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly so finding, the United States Court of Appeals for Veterans Claims (Court) appeared to assume the VCAA applies to a Chapter 17 claim (but then held that the failure to comply with the VCAA notice requirements in that case was non-prejudicial). Regardless, the Board finds that the Veteran has had a fair opportunity to present argument and evidence in support of this claim. Indeed, in his statements he has demonstrated an actual knowledge of what evidence is required to establish entitlement to the benefits sought. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Board is satisfied that any VA duty to assist is met. All pertinent private hospitalization records were submitted or obtained, and pertinent VA records have also been obtained. The Veteran has submitted personal statements and witness testimony. He has not identified any pertinent evidence that remains outstanding. Analysis Seeking reimbursement for expenses he incurred at Saint Elizabeth Regional Medical Center from December 15, 2011 through December 18, 2011, the Veteran argues, in essence, that the treatment he received was for a medical emergency and was obtained under instructions from a VA medical provider. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. The Board has reviewed not only the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The record shows that on December 15, 2011 the Veteran arrived for a scheduled appointment for consultation with a VA primary medical care provider; He was accompanied by family. The VA medical report from this consultation shows that the "[f]amily reports that patient has been SOB [short of breath] for a number of years, but has been getting increasingly worse over the past several months." The report indicates that the Veteran "[d]id not see a provider" although he "[u]sually, sees private provider in hometown." The Veteran was managing the shortness of breath by sleeping in a chair and using medication that "helps a little." He reported that at the time of the consultation he "feels ill" with "[m]ild chills" and "[a]ppetitite is decreased." The Veteran was noted to be "Oriented x3" and "Alert." After discussing test results with the Veteran, the VA provider's assessment remarks indicate discussing with the Veteran and his family "hospitalization for further evaluation" to "R/O [rule out] CHF[congestive heart failure]/Pneumonia." Significantly, the VA report notes: "Family and patient wishes to use private insurance and to privately" arrange hospital care. The VA report shows that the VA provider expressly noted that "[t]hey feel safe to drive patient," explaining that "he has been like this for months and no new or worsen[ed] symptoms." The record reflects that the Veteran's family then transported him to Saint Elizabeth Regional Medical Center for hospital care. The private medical reports from the Veteran's treatment at Saint Elizabeth Regional Medical Center are of record. They show that the Veteran's chief complaint was "[w]heezing and cough and shortness of breath." The report describes that the Veteran had come to the private facility from "a scheduled appointment at the VA today," explaining that "[w]hile there, he gave a history of being very wheezy and short of breath for the last 1-2 weeks." The report describes that as the Veteran was "hypoxic on room air ... at that point, they did send him over to the emergency room for further evaluation here at Saint Elizabeth." Another "Final Summary" report from the St. Elizabeth treatment presents substantially the same pertinent information. The final summary states that the Veteran "began [to] become very wheezy and short of breath for the last one to two weeks," and that "[h]is daughter says that he started to get short of breath over the last six months." Although the reports state that "they transferred him to Saint Elizabeth Regional Medical Center ER," nothing in the VA or private medical records otherwise indicates contact or coordination beyond VA's "courtesy call" to the private facility; there is no documentation suggesting VA authorization of the private medical care for payment or reimbursement purposes. In claims involving payment/reimbursement by VA for medical expenses incurred for treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If payment was not pre-authorized, the analysis then proceeds to whether payment or reimbursement for the non-preauthorized services is warranted. The only suggestion that the Veteran had (or sought) prior authorization from VA for the private medical care at issue is the assertion, as phrased in the July 2013 statement from the Veteran's daughter, that "the Dr. at the V.A. [s]ent him across the street to St. E's hospital." The Veteran argues, as explained in the July 2013 statement from his daughter, that "this was not our choice, it was the V.A. Dr. [w]ho sent him to the hospital." The Veteran's October 2012 statement asserts that the VA provider "told me I needed to get to the nearest emergency room for treatment," and "called St. Elizabeth's telling them I would be coming right away." In it he contends that "obviously I was not stable enough to go to the VAMC in Omaha" and "[o]bviously I was not stable enough to wait for an ambulance because the VA doctor asked my daughter if she could get me to St. Elizabeth's right away." The Board finds that the contemporaneous medical documentation contradicts the assertion that VA decided that the Veteran seek treatment at the private facility. The December 2011 VA report shows that the VA medical provider "discussed hospitalization for further evaluation," and the family determined that the family members "feel safe to drive the patient" and that "[f]amily and patient wish[] to use private insurance to privately" obtain the medical treatment. In any event, however, it is important to note that the advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by the regulation. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992), citing 38 C.F.R. § 17.50d (1) (1991), which has been recodified as 38 C.F.R. § 17.54 (see Medical; Nonsubstantive Miscellaneous Changes; 61 Fed. Reg. 21,964 (May 13, 1996)). Other than citing their recollection that the VA treatment provider advised that they consider seeking hospital treatment and made a courtesy call to their preferred private hospital destination, the Veteran has made no assertion that the private treatment at Saint Elizabeth Regional Medical Center was formally authorized by VA. Hence, the Board concludes that prior authorization for the non-VA medical treatment from December 15, 2011 through December 18, 2011 was not obtained. Accordingly, the Board will proceed to consider whether the Veteran is eligible for payment or reimbursement for services not previously authorized. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Where a veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that provide for payment or reimbursement for the medical expenses thus incurred, 38 U.S.C.A. §§ 1725 and 1728. Which statute applies is generally dependent on whether he has an adjudicated service-connected disability. The Board notes that effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of these amendments is to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C.A. §§ 1725 and 1728. Effective October 10, 2008, the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123, made 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 are otherwise satisfied. Additionally, this amendment added a provision which essentially expanded the meaning of "emergency treatment" to include treatment rendered (1) 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 (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) 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 (B) 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. (The regulatory amendments implementing these changes were made final on December 21, 2011, and are effective as of January 20, 2012. See Payment or Reimbursement for Emergency Treatment Furnished by Non-VA Providers in Non-VA Facilities to Certain Veterans with Service-Connected or Nonservice-Connected Disabilities, 76 Fed. Reg. 79067 (Dec. 21, 2011).) Effective from February 1, 2010, pursuant to the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010) (codified as amended at 38 U.S.C.A. § 1725 ), the provisions of § 1725(b)(3)(C) pertaining to contractual or legal recourse against a third party were modified so as to allow for reimbursement in situations where a portion of the cost of the care is covered. These amendments are effective, and apply with respect to emergency treatment furnished on or after February 1, 2010, except where it is determined "under the circumstances applicable to the veteran, that it is appropriate to" apply the amendments to treatment received prior to the date of the Act's enactment. Pub. L. No. 111-137, § 1(c)(2), 123 Stat. 3495, 3496. Regulatory amendments were made in 2012. Prior to the 2012 regulatory amendments payment or reimbursement for emergency treatment could be made only for the period from the beginning of the initial evaluation treatment until such time as a person could be safely discharged or transferred to a VA facility or other Federal facility. The 2012 amendments removed the following requirement: 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). Thus, beginning with the 2012 regulatory amendments, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. 76 Fed. Reg. 79,067, 79071 (Dec. 21, 2011) (codified at 38 C.F.R. § 17.1005(b)(1),(2)). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency treatment, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or other Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress notes, discharge summary, or other applicable medical record. 76 Fed. Reg. at 79071 (codified at 38 C.F.R. § 17.1005(c)(1), (2)). If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 76 Fed. Reg. at 79072 (codified at 38 C.F.R. § 17.1005(d)). Finally, further regulatory changes to § 17.1001-1005 were made effective May 21, 2012. See 77 Fed. Reg. 23617 (Apr. 20, 2012). Those changes were made for conformity with statutory changes expanding veterans' eligibility for reimbursement, including retroactive payment or reimbursement for emergency treatment received on and after July 19, 2001, and payment limitations where an eligible veteran has contractual or legal recourse against a third party that would only partially extinguish a veteran's liability to the emergency treatment provider. Under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred at non-VA facilities where: (a) For veterans with service connected disabilities, emergency treatment not previously authorized rendered to a veteran in need of such emergency treatment: (1) for a service-connected disability; (2) for nonservice-connected disabilities associated with and held to aggravating a service-connected disability; (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 illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.47(i)(2); and (b) in a medical emergency, treatment not previously authorized rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health; and (c) when VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans 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 would have been refused. All three statutory requirements (i.e., (a), (b), and (c)) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Here, it is significant that the Veteran's service connected disabilities have been rated totally disabling, as documented in the September 2012 statement of the case. The Veteran's service-connected disabilities include (as documented in the September 2012 statement of the case) paralysis of median nerve - right upper extremity, irritable colon, paralysis of sciatic nerve - right leg, impaired hearing, posttraumatic stress disorder, tinnitus, hemorrhoids, intervertebral disc syndrome, and arteriosclerotic heart disease. The Veteran meets requirement (a) of those listed above needed to establish entitlement to VA payment or reimbursement of unauthorized medical expenses in that he has service connected disabilities rated totally disabling. However, the preponderance of the evidence shows that he does not meet the further (above-listed (b) and (c)) requirements for payment or reimbursement. First, the condition/symptoms for which treatment was provided (shortness of breath) was not emergent in nature. The symptoms in question were clearly reported by the Veteran and his family to the VA provider as existing "for a number of years," with worsening "over the past several months." Very significantly, the family reported that "he has been like this for months and no new or worsen[ed] symptoms." The reports from the private medical facility indicate that "he gave a history of being very wheezy and short of breath for the last 1-2 weeks." The Veteran's arrival at the private facility was described as one purposed for "further evaluation" or for "further evaluation and treatment" in the private medical records, which is consistent the VA report's indication that hospitalization was discussed "for further evaluation." None of this medical documentation of the purpose of the hospitalization indicates an emergent medical issue or other manner of immediate medical emergency. Further, when he presented for the treatment, he arrived by private vehicle and did not require ambulance transport. The Veteran's contentions in this case have suggested that a need for immediate hospital care existed and made it unfeasible to travel from the Lincoln, Nebraska location to the VA hospital in Omaha, Nebraska. The Veteran's October 2012 statement asserts that the VA provider "told me I needed to get to the nearest emergency room for treatment." The October 2012 statement contends that "obviously I was not stable enough to go to the VAMC in Omaha" and "[o]bviously I was not stable enough to wait for an ambulance because the VA doctor asked my daughter if she could get me to St. Elizabeth's right away." The Board takes judicial notice of the fact that the distance between Lincoln and Omaha is approximately 60 miles. Notably, the Veteran had at least "1-2 weeks" (according to his report of history in the private medical report) and perhaps as much as "months" (according to the report of history in the VA medical report) to seek medical care for the same respiratory symptoms which his family told the VA provider had been the same "for months with no worsen[ing] symptoms." The very fact that he waited at least a week or more to seek treatment suggests that even he did not consider the symptoms as posing an immediate health emergency. Also, although it is clear that the Veteran's respiratory difficulties were significant and warranted medical attention, nothing in the descriptions of his presenting condition in records from Saint Elizabeth Regional Medical Center indicates that there was an immediately time-sensitive medical emergency at that moment. Criterion (b), requiring a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, is not met in this case for the reasons discussed above. Requirements (b) and (c) must both be met and, as (b) is not met, discussion of requirement (c) is not needed. However, it is noteworthy that requirement (c) provides that for there to be entitlement to reimbursement under 38 U.S.C.A. § 1728, VA facilities must also not have feasibly been available and an attempt to use them beforehand or to obtain prior VA authorization for the services required would not have been reasonable. Significant in this regard is the period of a week (at the least) during which the Veteran had been experiencing the same pertinent symptoms prior to his seeking the treatment in question; during this period of time he made no attempt to either seek immediate VA treatment or obtain VA authorization for private treatment. There is nothing of record to suggest that a prudent layperson would have considered it unreasonable to attempt to use VA facilities or obtain authorization for private treatment prior to the hospitalization on December 15, 2011. The Veteran has not alleged that he attempted to obtain VA authorization for the private treatment, aside from his assertion that he believed the VA provider's advice to seek hospital care implied such authorization. The probative contemporaneous evidence indicates that the Veteran and his family elected to go to the private facility. The VA medical report notes: "Family and patient wish[] to use private insurance and to privately" obtain hospital treatment. The Veteran's only argument suggesting that VA facilities were not feasibly available features his contention that he was experiencing a medical emergency; the Board finds that there was not a medical emergency and thus there is no remaining suggestion that VA facilities were not feasibly available. Aside from the finding that the evidence does not show that a medical emergency prompted the hospitalization, this claim for reimbursement must be denied because VA facilities were feasibly available, but the Veteran elected private treatment due to preference. The Board is bound by 38 U.S.C.A. § 1728 and implementing regulations which provide that, for reimbursement to be warranted under that Section, a medical emergency and VA facilities not being feasibly available, must both be shown. As these two requirements are not met, reimbursement under § 1728 is not warranted. The Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, 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 (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. The circumstances under which entitlement to payment or reimbursement may be provided under § 1725 are highly limited. To establish entitlement under this statute, each of the following conditions must be met: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (d) The Veteran was enrolled in the VA health care system at the time the 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; (e) The Veteran is financially liable to the non-VA provider of the emergency treatment; (f) 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 of the denial of payment); (g) The Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728. 38 C.F.R. § 17.1002. Since all criteria must be met to establish entitlement, if there is a failure to satisfy any single criterion, the claim must be denied. Requirement (b) above provides that for entitlement to reimbursement under 38 U.S.C.A. § 1725 the treatment in question must have been provided for a medical emergency. In the instant case, the preponderance of the evidence is against a finding that a medical emergency existed when the Veteran sought and received the medical treatment in question. While he presented with a history of respiratory difficulty, he and his family described that the pertinent symptoms were present, without significant worsening, for at least a week and possibly several months. As noted above, the Veteran had at least "1-2 weeks" (according to his report of history in the private medical report) and perhaps a period of "months" (according to the report of history in the VA medical report) to seek medical care for the same respiratory symptoms which his family told the VA provider had been the same "for months with no worsen[ing] symptoms." The very fact that he waited at least a week or more to seek treatment suggests that even he did not consider the symptoms to pose a health emergency. Although it is clear that the Veteran's respiratory difficulties were significant and warranted medical attention, no medical documentation around the time of the hospitalization shows an emergent medical issue or a medical emergency. Further, when he presented for the treatment, he arrived by private vehicle and did not require ambulance transport. There is nothing in the record to suggest that the delay associated with transport to a more distant VA medical facility would have placed him at risk for imminent danger to his life or serious jeopardy to his health. Significantly, the very fact that he waited for at least a week (and perhaps months) to seek treatment suggests that even he did not consider the symptoms as posing an emergency risk to his health. Accordingly, the Board finds that it is not shown that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for his respiratory symptoms would have been hazardous to life or health. As the requirement for reimbursement under 38 U.S.C.A. § 1725 of there being a medical emergency is not met, the analysis does not need to proceed any further (as all 8 requirements listed in 38 C.F.R. § 17.1002 must be met to establish entitlement to reimbursement under Section 1725). Nevertheless, it is noteworthy that the Veteran did not seek treatment for at least a week (or months) after the onset of the pertinent symptoms (without worsening), during which time there is no indication that VA facilities were not feasibly available. There is nothing of record to suggest that an attempt to use VA facilities for emergency treatment or hospitalization prior to receiving treatment at Saint Elizabeth Regional Medical Center on December 15, 2011 would not have been considered reasonable by a prudent layperson. The Board also notes that under 38 U.S.C.A. § 1725, a veteran is only considered to be "personally liable" for treatment if he/she (1) is financially liable to the provider of emergency treatment for that treatment (2) has no entitlement to care or services under a health-plan contract (3) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and (4) is not eligible for reimbursement for medical care or services under section 1728 of this title. 38 U.S.C.A. § 1725(b)(3). 38 U.S.C.A. § 1725(f)(2)(A) defines a health-plan contract to include an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar arrangement under which health services for individuals are provided or the expenses of such services are paid. This definition includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j). See 38 U.S.C.A. § 1725(f)(2)(B). That is, 42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B. In essence, the law and regulations specifically exclude payment under the Millennium Act if the Veteran has coverage under either Medicare Part A or Medicare Part B. The documentation of record from Saint Elizabeth Regional Medical Center includes statements showing billing information and charges for the medical services provided to the Veteran during the time in question. These statements clearly show that Medicare covered a portion of the Veteran's medical expenses incurred and owed to Saint Elizabeth Regional Medical Center. The evidence in this case is unequivocal. The Veteran had a health-plan contract as defined by the statute. The appellant has not disputed this fact. While they argue that the VA should cover the remaining charges incurred by the Veteran, the law is dispositive. That the Veteran had Medicare coverage is a bar to payment by VA. See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(f). The Board notes that 38 U.S.C.A. § 1725 was amended in February 2010. See Pub. L. No. 111-137, § 1(a), (b), 123 Stat 3495 (2010). However, the change in law was meant to address certain circumstances where a veteran had third-party insurance that would pay a portion of the costs associated with emergency treatment in a private facility but the Veteran would be responsible for the remainder of the costs. An example provided in the House report described where a veteran had minimal health insurance coverage through a state-mandated automobile insurance policy. Prior to the change in the law, the minimal coverage would prohibit VA from covering any part of the expense. See House Report 111-55, March 26, 2009. The change in the law removed 38 U.S.C.A. § 1725(f)(2)(E) which included automobile insurance carriers in the definition of a health-plan contract. The amendments did not affect the previously established prohibition against VA paying or reimbursing for emergency medical treatment where the veteran had a health-plan contract in place as described above. The applicable regulation for claims under 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1002, provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses. Included in the list of conditions is the requirement that the claimant have no coverage under a health-plan contract for payment, in whole or in part, for the emergency treatment. 38 C.F.R. § 17.1002(f). Effective May 21, 2012, VA published a final rule in the Federal Register amending 38 C.F.R. § 17.1002 to conform to the 2010 statutory changes. See 77 Fed. Reg. 23,615 (April 20, 2012). In the Supplementary Information section, VA specifically addressed a commenter's suggestion that VA remove the term "or in part" from current § 17.1002(f). VA noted that the 2010 statutory changes removed the term "or in part" from 38 U.S.C.A. § 1725(b)(3)(C) (pertaining to contractual or legal recourse against a third party) and that section 1725(b)(3)(B) (pertaining to a health-plan contract) had no such revisions. VA stated, "In other words, section 1725(b)(3)(B) requires that the veteran have 'no entitlement to care or services under a health-plan contract,' which means that any entitlement, even a partial one, bars eligibility under section 1725(b) ... The current language of § 17.1002(f) clarifies the language of section 1725(b)(3)(B) by reiterating the veteran's liability for emergency treatment if such veteran has no health-plan contract 'in whole or in part.'" Even if some of the medical expenses from the Veteran's treatment in December 2011 were not completely covered by Medicare, this is not relevant under the foregoing statute and regulation. VA is not authorized to pay or reimburse unauthorized medical expenses where a health-plan contract covers the cost of medical expenses either "in whole or in part." See 38 C.F.R. § 17.1002(f). In sum, the preponderance of the evidence leads to the conclusion that the Veteran chose private treatment for his respiratory symptoms out of preference and that there was not an immediate medical emergency preventing the Veteran from seeking VA medical care nor VA authorization for private medical care. The preponderance of the evidence leads to the conclusions that the private medical care was not formally authorized by VA and that treatment at a VA facility instead was feasibly available (during the period that the pertinent symptoms were present prior to and during December 15, 2011). A prudent layperson would not have reasonably expected that delay in seeking medical attention or the use of a VA facility for the evaluation and treatment in question would have been hazardous, as indeed the Veteran and his family described that his symptoms had been present for some time prior to December 15, 2011 with no recent worsening or emergency. As it is not shown that the treatment in question was for a medical emergency or that VA facilities were not feasibly available to provide the treatment, and also in light of the fact that the Veteran had Medicare coverage, the legal requirements for reimbursement under 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (and the implementing regulations) are not met. Reimbursement is not warranted, and the appeal in this matter must be denied. ORDER The appeal to establish entitlement to payment or reimbursement for the private medical services the Veteran received at Saint Elizabeth Regional Medical Center from December 15, 2011 through December 18, 2011, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs