Citation Nr: 1330134	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  11-23 277	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Columbus, Ohio


THE ISSUE

Entitlement to payment or reimbursement for the cost of medical treatment provided from August 3, 2010 to August 7, 2010 at Riverside Methodist Hospital, Columbus, Ohio.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Layton, Counsel



INTRODUCTION

The Veteran served on active duty from September 1953 to August 1955.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 determination of a Department of Veterans Affairs (VA) Medical Center (VAMC) that denied payment or reimbursement of certain medical expenses incurred from August 3, 2010 to August 7, 2010.  The VAMC is the Agency of Original Jurisdiction (AOJ) in the present matter.

In February 2012 the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO in Cleveland, Ohio.  Subsequently, in April 2012 and June 2013, the Board remanded the claim for additional development.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  This electronic file has been reviewed in connection with the current decision.  

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 August 3, 2010 to August 7, 2010. 

2.  The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728.

3.  The Veteran has Medicare Part A insurance.



CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses provided from August 3, 2010 to August 7, 2010 at Riverside Methodist Hospital, Columbus, Ohio, 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 CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the appellant.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

I.  Veterans Claims Assistance Act of 2000 (VCAA)

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 Board finds that the VCAA does not apply to this appeal.  See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004.  For the same reason, any non-compliance with prior remand instructions constitutes harmless error.

As to the matter of a Veterans Law Judge's duty to notify and assist pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010), during the Veteran's February 2012 Board hearing, the Acting Veterans Law Judge asked questions concerning the Veteran's history and hospitalization, and there was no indication that the represented appellant had any additional information to submit.  Id. at 498-99.  Accordingly, the clarity and completeness of the hearing record was intact and the purpose of 38 C.F.R. § 3.103(c)(2) (2012) was fulfilled.  Id. at 499.

II.  Analysis

In this case, the Veteran was provided emergency medical treatment at a private hospital from August 3, 2010 to August 7, 2010 after developing wound healing problems from a prior left ankle procedure performed in June 2010.  The Veteran asserts that the medical services in question were rendered in a medical emergency of such nature that delay would have been hazardous to life and that no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been practical.  VA did not authorize payment or reimbursement for such treatment in part because he has Medicare Part A insurance.  The Veteran argues that VA should pay for the treatment. 

The Board notes that there is no indication from the record, nor has the Veteran alleged, that he meets any criterion for benefits under 38 U.S.C.A. § 1728 (applicable where a Veteran has a total disability, or, treatment at the private medical facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program).  See 38 C.F.R. §§ 17.120, 1747(i).  Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725.

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.

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).  Indeed, in April 2012, the Board remanded this claim for consideration under the amended provisions of 38 U.S.C.A. § 1725.  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.  Significantly, 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 Board recognizes that the Veteran seeks payment for the portion of medical expenses not covered by Medicare.  However, the fact that not all of the medical expenses from this treatment were covered completely by Medicare 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 evidence in this case is unequivocal.  The Veteran has a health-plan contract as defined by the statute.  He has not disputed this fact.  He has coverage under Medicare part A.  This 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).  While the Board understands the Veteran is frustrated by VA's failure to pay for expenses that Medicare did 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).


ORDER

Entitlement to payment or reimbursement for the cost of medical treatment provided from August 3, 2010 to August 7, 2010 at Riverside Methodist Hospital, Columbus, Ohio, is denied.



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs