Citation Nr: 1326674	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-47 017A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Hot Springs, South Dakota


THE ISSUE

Entitlement to payment or reimbursement of unauthorized private medical expenses incurred December 29-31, 2009.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

L. Barstow, Counsel

INTRODUCTION

The Veteran had active service from January 1959 to August 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and March 2010 decisions of the Department of Veterans Affairs Medical Center (VAMC) in Hot Springs, South Dakota.  

In August 2010, the Veteran testified at a hearing conducted at the VAMC.  In June 2011, the Veteran and his wife testified at a hearing conducted before the undersigned Veterans Law Judge.  Transcripts of both hearings have been associated with the claims file.


FINDINGS OF FACT

1.  From December 29-31, 2009, care and services were rendered for a cardiac disorder, which is not a service-connected disability and was not associated with and held to be aggravating an adjudicated service-connected disability; the Veteran did not have a total and permanent rating; and he was not in a rehabilitation program.

2.  VA payment or reimbursement of the costs of the care from December 29-31, 2009, was not authorized.

3.  The Veteran is insured by Medicare.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized private medical expenses incurred December 29-31, 2009, have not been met.  38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.120, 17.1000-1008 (2012).  
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

VA has a duty to notify and to assist claimants.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Significantly, however, the United States Court of Appeals for Veterans Claims (Court) has held that VA's duties to notify and assist are not applicable where the law, and not the factual evidence, is dispositive.  Manning v. Principi, 16 Vet. 534, 542-43 (2002).  As will be discussed in the following decision, the pertinent facts of this case are not in dispute, and the outcome of the Board's decision depends solely on the application of the relevant law to the Veteran's claim.  

II.  Analysis

The Veteran seeks payment or reimbursement for unauthorized private medical expenses for treatment he received on December 29-31, 2009.  

Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-17.1002 (the implementing regulations).  § 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.  Eligibility for reimbursement under this Act requires satisfaction of all of the following:  

(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 would 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;

(d) 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 is financially liable to the provider of emergency treatment for that 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;

(g) 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,

(h) 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.

76 Fed. Reg. 79,067, 79,071 (Dec. 21, 2011) (to be codified at 38 C.F.R. § 17.1002(a)-(h)).  

During the pendency of the appeal, certain regulatory amendments went into effect on January 20, 2012, which removed the following requirement under 38 C.F.R. §17.1002:

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).  

Hence, prior to the January 2012 regulatory amendments, there were nine criteria listed under 38 C.F.R. §17.1002(a)-(i) (2011).  

Prior to the Veteran's claim, on October 10, 2008, S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President.  This bill makes various changes to veterans' mental health care and also addresses other health care related matters.  Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 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, 122 Stat. 4110 (2008).  

Under the Millennium Health Care Act, the VA will be the payer of last resort for service members who usually get their care at a VA medical center.  As noted above, one of the requirements that must be met is that the veteran must not have entitlement to care or services under a health plan contract.  38 U.S.C.A. § 1725(b)(3)(B) (West 2002); 38 C.F.R. § 17.1002(g) (2012).  A health plan contract is specifically defined, by the law as well as the implementing regulation, to include 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).  38 U.S.C.A. § 1725(f)(2)(B) (West 2002); 38 C.F.R. § 17.1001(a)(2) (2012).  42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B.  That is, the law and regulations specifically exclude(d) payment under the Millennium Act if the veteran has coverage under either Medicare Part A or Medicare Part B. 

Of note is that 38 U.S.C.A. § 1725 was amended effective February 1, 2010.  See Pub. L. No. 111-137, § 1(a),(b), 123 State. 3495 (2010).  This change, in essence, addresses the following: Payment or reimbursement has been denied by the VA on the basis that the veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.  However, veterans may receive payment or reimbursement through VA for the balance of medical expenses that remains when a third party payer would only extinguish part of a veteran's liability.  Pub. L. 111-137, 123 Stat. 3495 (2010) (codified at 38 U.S.C.A. § 1725(c)(4) ).  This amendment is effective February 1, 2010, and shall apply with respect to emergency treatment furnished on or after such date.  Id. at (c)(1).  

Additionally, VA may reimburse unauthorized medical expenses incurred in non-VA facilities under 38 U.S.C.A. § 1728(a) for veterans with service-connected disabilities.  However, such law does not apply in this case as discussed in detail below.  The treatment at issue was for a nonservice-connected disability, which was not related to or aggravating a service-connected disability.  The evidence also does not show that Veteran has a total disability permanent in nature or that he participated in a vocational rehabilitation program under 38 U.S.C. ch. 31.  Therefore, the provisions of 38 U.S.C.A. § 1728 do not apply.  38 U.S.C.A. § 1728(a) (2012).  

In this case, the Veteran was hospitalized in a private facility from December 29-31, 2009, for bypass surgery.  See June 2011 Hearing Transcript (T.) at 4, 6.  Prior to going to a private facility, the Veteran reportedly called VA and after explaining his symptoms, was told to go to a private hospital.  A March 2010 letter from a VA medical professional confirms that the Veteran was told to seek private treatment for his cardiac symptoms as it was felt to be a life-threatening condition.  The evidence does not show that the Veteran received authorization from VA for the private treatment at issue.

At his June 2011 hearing, the Veteran testified that at the time of the 2009 treatment, he had Medicare and that they paid part of his expenses.  T. at 7-8.  He also testified that he is only service-connected for his knees and that his December 2009 treatment was not related to his knees or aggravated his knees.  Id. at 5-6.  

Tax abatement letters in November 2009 through November 2012 all show that the Veteran's combined disability evaluation is 20 percent.  The November 2009 letter shows that his is not considered to be totally and permanently disabled due to service-connected disabilities.  There is no indication in the evidence of record, or in the Veteran's statements, that he participated in vocational rehabilitation program under 38 U.S.C. ch. 31.  

Based on a review of the evidence, the Board concludes that entitlement to payment or reimbursement of unauthorized private medical expenses incurred December 29-31, 2009, is not warranted.  

Unfortunately, the Veteran does not meet the criteria for payment or reimbursement under 38 U.S.C.A. § 1725 as part of the Veterans Millennium Health Care and Benefits Act.  As discussed above, the Veteran testified that he had Medicare at the time of his December 2009 surgery.  Although a subsequent amendment on February 1, 2010, provided that veterans may receive payment or reimbursement through VA for the balance of medical expenses that remains when a third party payer would only extinguish part of a veteran's liability, such amendment only applies to emergency treatment furnished on or after such date as noted above (emphasis added).  Regrettably, as the treatment at issue occurred a little over one month prior to the effective date of the amendment, the Veteran is precluded as a matter of law from VA paying or reimbursing his private medical expenses.  

The Board acknowledges the Veteran's contentions that the treatment at issue was authorized by VA.  When VA facilities are not capable of furnishing the care or services required, VA may contract with non-Department facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility.  38 U.S.C.A § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52(a)(3) (2012). 

The admission of a veteran to a non-VA hospital at the expense of VA and under the provisions of 38 U.S.C.A § 1703 must be authorized in advance.  38 C.F.R. § 17.54 (2012); Malone v. Gober, 10 Vet. App. 539 (1997).  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.  

In this case, the Veteran has contended, and the evidence confirms, that he was advised by VA to seek private treatment as his symptoms were thought to be life-threatening.  The Court, however, has determined that "the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation."  Smith v. Derwinski, 2 Vet. App. 378, 379 (1992).  Although the specific regulation in Smith, 38 C.F.R. § 17.50d (a), has since been amended, it was of similar content to the current 38 C.F.R. § 17.54.  As applied to this case, even though the Veteran was advised by VA to seek private treatment, such advise does not constitute authorization.  There is no indication that the Veteran made an application to VA within 72 hours after the hour of admission for authorization.  Therefore, the Board concludes that the private treatment provided to the Veteran from December 29-31, 2009, was not authorized by VA.  

The Board recognizes that there are financial difficulties that arise from unexpected medical expenses.  While the Board sympathizes with the Veteran's situation and the particular circumstances therein, the Board is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).  

Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied.


ORDER

Entitlement to payment or reimbursement of unauthorized private medical expenses incurred December 29-31, 2009, is denied.



____________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs