Citation Nr: 1326698 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-11 923A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (VAMC) in Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement by VA of medical expenses incurred at Hendersonville Medical Center on August 26, 2010. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from August 1974 to August 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2010 decision of the VAMC in Murfreesboro, Tennessee. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran was treated at Hendersonville Medical Center on August 26, 2010. 3. The treatment provided to the Veteran was not authorized by VA. 4. The Veteran has no service-connected disabilities; he is not participating in a vocational rehabilitation program. 5. A VA facility was feasibly available and the Veteran did not attempt to us it beforehand, even though such an attempt would have been considered reasonable by a prudent layperson. 6. Although the Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished, he had not received medical services under 38 U.S.C. Chapter 17 within two years of the non-VA emergency treatment. CONCLUSION OF LAW The criteria for reimbursement of private medical expenses incurred on August 26, 2010 have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking reimbursement of expenses paid for treatment received at Hendersonville Medical Center on August 26, 2010. Pursuant to 38 U.S.C.A. § 1703(a), when VA facilities are not capable of furnishing the care or services required, the Secretary 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); 38 C.F.R. § 17.52. The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (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 any event, under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities in some circumstances: (a) For veterans with service connected disabilities. 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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (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 § 17.48(j); and (b) In a medical emergency. 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) When Federal facilities are unavailable. 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 C.F.R. § 17.120. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized under 38 U.S.C.A. § 1728; Zimick v. West, 11 Vet. App. 45, 49 (1998); see Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The Veteran does not claim that he had (or sought) prior authorization from VA for the care he received at Hendersonville Medical Center on August 26, 2010, nor is there any indication in the record of such authorization. It is not in dispute that the private medical treatment at issue was not pre-authorized by VA. When 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. Here, the record shows that the Veteran had no service-connected disabilities; he does not allege, nor does the record show, that he was participating in a vocational rehabilitation program. As the medical treatment in question was not for a service-connected disability (or a non-service connected disability aggravating a service-connected disability), as the Veteran was not totally disabled due to service connected disability, and as he was not participating in a vocational rehabilitation program, the criteria for payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1728 are not met. The Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, also 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, all of the following conditions must be met: (1) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (2) 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; (3) 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; (4) The care beyond the initial emergency evaluation and treatment was 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, with the medical emergency lasting only until stabilization of the Veteran; (5) 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; (6) The Veteran is financially liable to the non-VA provider of the emergency treatment; (7) The Veteran has no health insurance coverage for payment or reimbursement for the emergency treatment; (8) The Veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (9) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veteran's, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 (2012). These criteria are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive 'and' in a statutory provision meant that all of the conditions listed in the provision must be met). Failure to satisfy any single criterion will result in the denial of the claim. The Board notes that there was a legislative change of 38 U.S.C.A. § 1725, effective October 10, 2008. Specifically, the change of interest is that the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary, if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, emergency treatment is continued until such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) 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. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not make an attempt to use a VA facility that was feasibly available, and that such an attempt would have been considered reasonable by a prudent layperson. In addition, the Veteran had not received medical services from VA within two years before the non-VA emergency treatment. Regarding whether treatment at a VA facility would have been reasonable, the Board notes that, based on his address of record, the Veteran resides approximately 28 miles from the VA hospital in Nashville, Tennessee. He lives approximately 46 miles from the Henderson Medical Center where he, in fact, chose to go. The Veteran asserts that in July 2010 he "attempted to make an appointment with the V.A. in Nashville, TN." They informed him that, since he had not been to the clinic in 2 years it would be February before he could be seen there. This clearly explains why the Veteran did not seek outpatient treatment from VA, it does not explain why the Veteran did not report to the VA Hospital Emergency Room, which was substantially closer to his residence than the private hospital from which he sought treatment. By his own account, the Veteran never attempted to obtain emergency treatment at the VA Hospital in Nashville, but chose to travel almost 20 miles further to be treated at a private facility. Importantly, the Veteran has never indicated at the time of the emergency he was closer to the private hospital. Even if the Board ignored the above, the Veteran's account also raises a separate issue which precludes reimbursement under § 1725. The Veteran has admitted that, although he is enrolled in the VA health care system at the time the emergency treatment was furnished, he had not received medical services from VA within 2 years before the non-VA emergency treatment. While this was not a stated basis for the denial of his claim, the Veteran is competent to relate this information, and his VA outpatient records do not reflect treatment between June 2008 and August 26, 2010, a period of more than 2 years. Whether the version of 38 U.S.C.A. § 1725, effective prior to or since October 10, 2008 is applied, the result is the same. The appeal must be denied because not all of the conditions for reimbursement have been met. Specifically, the evidence shows that a VA facility was feasibly available and the Veteran did not attempt to us it beforehand, even though such an attempt would have been considered reasonable by a prudent layperson. The evidence also shows that, although the Veteran was enrolled in the VA health care system at the time the emergency treatment was furnished, he had not received medical services under 38 U.S.C. Chapter 17 within 2 years before the non-VA emergency treatment. The Board notes that the VAMC also found that the Veteran's treatment was not for an emergency condition. The Board need not address this question as the findings made above preclude reimbursement under 38 U.S.C.A. § 1725. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). However, there is no dispute as to the essential facts in this case. The Veteran is in agreement that he did not attempt to obtain treatment at the VA Emergency Room prior to seeking treatment from a non-VA facility. The Veteran also agrees that he had not received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment. Accordingly, the weight of the evidence is against a finding that the Veteran meets the criteria for payment or reimbursement of medical services provided at Hendersonville Medical Center on August 26, 2010, either on the basis of eligibility under 38 U.S.C.A. § 1728 or under 38 U.S.C.A. § 1725. Therefore, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The record indicates the Veteran received the notice letter in August 2010. However, because the claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). Therefore, the Board's decision to proceed in adjudicating this claim, rather than remanding it for assistance or additional notification, does not prejudice the appellant. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board also notes that, as explained above, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). ORDER Reimbursement by VA of medical expenses incurred at Hendersonville Medical Center on August 26, 2010 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs