Citation Nr: 1326731 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-47 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Parkridge Health System, Inc (Parkridge) from May 20, 2010 to May 22, 2010. ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the VA Medical Center in Murfreesboro, Tennessee. 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 received private inpatient medical care from May 20, 2010 to May 22, 2010. 2. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728 . 3. The Veteran has Medicare Part A insurance. 4. There is no indication during hospitalization that contact or transfer to the VA was contemplated or attempted. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Parkridge Health System, Inc (Parkridge) from May 20, 2010 to May 22, 2010 have not been met. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Because the record in this case shows that undisputed facts demonstrate that the Veteran's claim for reimbursement of payment of unauthorized medical expenses is barred by applicable statutory and regulatory provisions, the VCAA does not apply to this appeal. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004. Nonetheless, the Veteran was provided with an undated duty-to-assist letter, presumably issued prior to the adjudication of the claim. The letter specifically notified the Veteran that he needed to show evidence that he had no other health coverage in order to substantiate the claim. The Veteran seeks reimbursement or payment of the costs associated with medical services he received at Parkridge from May 20-22, 2010. The Veteran was admitted as an inpatient on May 20, 2010 after receiving emergent treatment for shortness of breath and a heart rate in the 40s and elevated BNP. He was discharged the next day. The record also shows that the Veteran began having additional trouble breathing and began acting strangely with difficulty ambulating on May 23, 2010. He was sent to the emergency room and was found to be hypoxic. A July 2010 Millennium Bill Review shows that the Veteran met the criteria for reimbursement for expenses incurred from March 23-25, 2010. Thus, the period for consideration is limited to May 20-22, 2010. It is also of record that appellant had Medicare A coverage as of August 1, 1996. When the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability or not. The Veteran asserts that the treatment he received at Parkridge in May 2010 was rendered in a medical emergency. VA did not authorize payment or reimbursement for the in-patient treatment because, inter alia, he has Medicare Part A insurance. 38 U.S.C.A. § 1728(a) provides that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a Veteran (A) for an adjudicated service-connected disability, (B) for a non service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 C.F.R. § 17.120. All three of these statutory requirements must be met before payment may be authorized. Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The Veteran does not contend that his May 2010 treatment was for a service-connected disability. The record shows that service connection has not been established for any disabilities; thus, the criteria for payment under 38 U.S.C.A. § 1728 are not met. Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act. See also 38 C.F.R. §§ 17.1000-17.1008 (2012). Pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(a)-(h) (2012), eligibility for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under the statute and the implementing regulations, is dependent on 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 that VA has an agreement with to furnish health care services for Veterans was not feasibly available and an attempt to use them beforehand 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 the nearest available appropriate level of care was at a non-VA medical center); (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 (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) 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, the Veteran's liability to the provider; and (h) 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 Veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002(a)-(h) (2012). All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(a)-(h) are 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]. The Court also held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53 (2012). A VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. Id. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated. Id. With regard to the issue of feasible availability, although pertaining to treatment of service-connected disabilities, 38 C.F.R. § 17.120(c) also provides further guidance. Under 38 C.F.R. § 17.120(c), payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made 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 had been or would have been refused. With regard to the issue of feasible availability, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130 (2012). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1725, a veteran is only considered to be "personally liable" for treatment if he/she has no entitlement to care or services under a health-plan contract, which includes 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. See 38 U.S.C.A. § 1725(b)(3)(B) (West 2002 & Supp. 2012). In addition, the provision at 38 U.S.C.A. § 1725(f)(2)(A) (West 2002) 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). 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 payment under the Millennium Act if the appellant has coverage under either Medicare Part A or Medicare Part B. With respect to this issue, 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) (2012). 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.'" The Veteran argues, however, that Medicare will not cover the outstanding medical expenses, and in particular, the physician charges and the hospital charges for observation services. However, even if some of the medical expenses from the Veteran's treatment in May 2010 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). The Veteran has a health-plan contract as defined by the statute. He has not disputed this fact. This coverage is a bar to payment by VA beyond that paid for emergent treatment. See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(f). Although the Board acknowledges the Veteran's frustration by VA's failure to pay for expenses that Medicare may not cover and is sympathetic toward the Veteran, it is bound by the law, and its decision is dictated by the relevant statute and regulations. The Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). While sympathetic to the appellant, the Board is nonetheless bound by the law and 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). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Parkridge from May 20, 2010 to May 22, 2010, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs