Citation Nr: 1333379 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-24 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized private medical expenses incurred from February 22, 2013, through February 26, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from August 1949 to September 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April and June 2013 decisions of the VA Medical Center (VAMC) in Gainesville, Florida. 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 medical treatment rendered to the Veteran at the private medical facility from February 22, 2013 through February 26, 2013, was not for the purpose of treating a service-connected disability, a disability for which the Veteran was discharged or released from service, or a nonservice-connected disability aggravating a service-connected disability. Furthermore, at the relevant time, the Veteran was not deemed to be totally disabled due to service-connected disability and was not a participant of a vocational rehabilitation program. 2. The private medical expenses incurred from February 22, 2013 through February 26, 2013 were not preauthorized by VA. 3. At the time of the medical treatment at the private medical facility from February 22, 2013 through February 26, 2013, the Veteran had coverage under a health-plan contract (i.e., Wellcare Medicare HMO) for payment or reimbursement of expenses incurred secondary to such care. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized private medical expenses incurred from February 22, 2013 through February 26, 2013, 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. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 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) (2013). 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 the provisions covering 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 an application of the relevant law to the Veteran's claim. Nevertheless, the Board notes that compliant notice was provided to the Veteran in July 2013. With regard to VA's duty to assist the Veteran, the Board notes that the development of medical evidence appears to be complete. Unlike many questions subject to appellate review, the issue of whether the Veteran is entitled to reimbursement or payment of medical expenses, by its very nature, has an extremely narrow focus. The facts underlying this case do not appear to be in dispute. Here, the only evidence necessary to decide the claim revolves around what transpired from February 22nd to the 26th of 2013. This determination involves the medical records from that time period and the medical decision from the VA Medical Center. Thus, evidence which is necessary to decide the case is already of record and, as explained in further detail in the following decision, the outcome of the case is mandated by the relevant law and regulations. Therefore, no amount of additional evidentiary development would change the outcome of the case. The Board finds that the VA has complied with its duty to assist the Veteran with the development of the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the Board finds that no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis The Veteran seeks reimbursement for the remaining cost (i.e., $30) of private emergency medical care received from the 22nd to the 26th of February 2013 for complaints of cough, shortness of breath, and swelling in his lower extremities. His principle diagnosis was acute exacerbation of systolic heart failure with secondary diagnoses of coronary artery disease, ischemic cardiomyopathy, hypertension, atrial fibrillation, history of cerebrovascular accident, Coumadin toxicity, gastroesophageal reflux disease, and prosthetic valve. At the time of this medical treatment, the Veteran was service-connected for right ulnar nerve dysfunction evaluated as 40 percent disabling; residuals, gunshot wound injury to muscle groups V and VI, evaluated as 30 percent disabling; scars associated with residuals, gunshot wound, evaluated as 10 percent disabling; and malaria evaluated as 0 percent disabling. His combined disability rating for these service-connected disabilities was 60 percent. The Veteran contends he was advised by the VA Outpatient Clinic in Tallahassee, Florida, to go to the nearest hospital which he did. He also contends that he has no other insurance other than "Well Care and the VA." See Notice of Disagreement dated June 2013. As the Veteran appears to contend that VA preauthorized his treatment in February 2013 because he was told to go the nearest hospital by the VA Outpatient Clinic in Tallahassee, Florida, the Board finds that such action does not mean that the private medical expenses relating to treatment of that emergency were preauthorized because, as discussed below, VA had no legal authorization to contract for emergency hospital care for the Veteran because he did not meet the requirements set forth in 38 U.S.C.A. § 1703 and 38 C.F.R. § 17.52 for fee-basis care. Moreover, the fact that a VA hospital diverted a veteran to a private facility does not constitute advance authorization of private care at VA expense. See Malone v. Gober, 10 Vet. App. 539, 544 (1997). The United States Court of Appeals for Veterans Claims (Court) determined, in Smith (Thomas) v. Derwinski, 2 Vet. App. 378, 379 (1992), that "The advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation." With regard to prior authorization, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a). However, hospital care or medical services in public or private facilities will only be authorized, whether under a contract or an individual authorization, under specified circumstances, for treatment of: 1) a service-connected disability; 2) a disability for which a veteran was discharged or released from the active military, naval, or air service; 3) a disability of a veteran who has a total disability permanent in nature from a service-connected disability; 4) a disability associated with and held to be aggravating a service-connected disability; or 5) a disability of a veteran participating in a rehabilitation program under 38 U.S.C. Chapter 31 and when there is a need for hospital care for reasons set forth in VA regulations. 38 U.S.C.A. § 1703(a)(1); 38 C.F.R. § 17.52(a)(1). In addition, with regard to prior authorization, hospital care or medical services in public or private facilities will also be authorized for the treatment of "medical emergencies" which pose a serious threat to the life or health of a veteran receiving hospital care or medical services in a facility over which the Secretary has direct jurisdiction or government facility with which the Secretary contracts, and for which the facility is not staffed or equipped to perform, and transfer to a public or private hospital which has the necessary staff or equipment is the only feasible means of providing the necessary treatment, until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. 38 U.S.C.A. 1703(a)(3); 38 C.F.R. 17.52(a)(3). Merely calling a Department facility to request admission or care is not the equivalent of receiving services in a VA facility. See VAOPGCCONCL 1-95 (Mar. 31, 1995). The Board finds in the present case that VA did not have legal authority to authorize the emergency hospital care sought by the Veteran on February 22, 2013, because he was not eligible for care under 38 U.S.C.A. § 1703(a)(1) and 38 C.F.R. § 17.52(a)(1). As previously discussed, the Veteran sought emergency treatment for cough, shortness of breath and swelling in his lower extremities. His discharge diagnosis was acute exacerbation of systolic heart failure. The Veteran is not service-connected for any heart disability and there is no indication that the symptoms he sought treatment for were related to any service-connected disability. It is clear from the claims file that the emergency treatment that the Veteran received in February 2013 was for neither a service-connected disability nor a disability for which the Veteran was discharged or released from active service. The record in the Veteran's claims file does not indicate that he was discharged or released from service due to a disability, and his service-connected disabilities are paralysis of the ulnar nerve, a muscle injury due to gunshot wound, a scar due to gunshot wound, and malaria. Furthermore, the treatment was not for a disability that was associated with, and aggravating, a service-connected disability. There is absolutely no evidence to demonstrate that the Veteran's episode of acute exacerbation of systolic heart failure in any way aggravated his service-connected disabilities thereby requiring the need for emergency medical treatment. In addition, the Veteran's claims file shows that he is not rated as permanently and totally disabled due to his service-connected disabilities. His combined rating is 60 percent and he has been denied entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disability. Finally, there is no evidence to establish that he was participating in a program of Vocational Rehabilitation at that time. Consequently, the Board finds that the criteria for eligibility for fee-basis care set forth in 38 U.S.C.A. § 1703(a)(1) and 38 C.F.R. § 17.52(a)(1) are not met in this case. Thus, the Veteran was not eligible for preauthorized non-VA medical care under this basis. Furthermore, the Veteran did not receive care in a situation which would permit fee-basis care under 38 U.S.C.A. § 1703(a)(3) and 38 C.F.R. § 17.52(a)(3). Eligibility for fee-basis care under subsection (a)(3) of both the statute and the regulation requires that the veteran actually have been receiving care in a VA facility in an emergency requiring referral to a non-VA facility for further care. A veteran being examined in a VA facility in an emergency situation is considered to be receiving VA care; however, there is no record of the Veteran having been receiving care at a VA facility at the time he was directed to go to the private hospital for emergency treatment. Therefore, 38 U.S.C.A. § 7103(a)(3) and 38 C.F.R. § 17.52(a)(3) are not applicable. Furthermore, merely calling a Department facility to request admission or care is not the equivalent of receiving services in a VA facility. See VAOPGCCONCL 1-95 (Mar. 31, 1995). In fact, the only VA record relating to this treatment is a VA Telephone Encounter note dated February 25, 2013, that indicates the Veteran's spouse called advising that the Veteran had been admitted to the private hospital for complained of shortness of breath, chest congestion and increase fluid in legs. She advised VA that the Veteran had a "heart attack" while in the hospital. Consequently, the Veteran was not eligible to receive fee-basis emergency care at a non-VA hospital as well. VA is only able to contract for non-VA hospital care when it is given authority by the laws and statutes governing such care, which are set forth in 38 U.S.C.A. § 1703 and 38 C.F.R. § 17.52 et. seq. See VAOPGCCONCL 1-95 (Mar. 31, 1995). In the present case, the Board finds that VA had no legal authority to contract for the non-VA hospital emergency care that the Veteran received because the Veteran was not eligible for fee-basis care. Furthermore, because there was no legal authority to contract for such care, no VA official could have legally authorized the contract care. Id. Consequently, the Board concludes that, even if the Veteran was told by the VA Outpatient Clinic in Tallahassee, Florida, to go to the nearest emergency room, such was not an authorization (or contract) for emergency treatment at said facility. The Board must find, therefore, that the medical expenses incurred in obtaining emergency treatment at the private medical facility were unauthorized. Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions - 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. The Board notes that both 38 U.S.C.A. §§ 1728 and 1725 were amended by the Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110 (2008). The changes made do not include any critical to the circumstances of this case. Initially, the Board notes that entitlement to payment or reimbursement of the unauthorized medical expenses incurred by the Veteran in February 2013 is not available under 38 U.S.C.A. § 1728. Under 38 U.S.C.A. § 1728(a), reimbursement of certain medical expenses is available only "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 in need thereof (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, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] 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 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, emphasized in the above quotation, "all three statutory requirements would have to be met before reimbursement could be authorized." Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). As is clear, 38 U.S.C.A. § 1728(a)(2) requires that the Veteran meet the same criteria as under 38 U.S.C.A. § 1703(a)(1) in order to be eligible for payment or reimbursement of unauthorized medical expenses, which were discussed above and found not to be met. Consequently, the Board must find that payment or reimbursement of the unauthorized medical expenses incurred in February 2013 is not authorized under 38 U.S.C.A. § 1728. Finally, the Board has considered whether reimbursement is warranted under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002. To be eligible for reimbursement under this authority, the Veteran has to satisfy 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 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 that the nearest available appropriate level of care was at a non-VA medical center); (d) 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); (e) 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; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) 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 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); (h) 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 or in part, the veteran's liability to the provider; (i) 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). 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. In this case, the criteria for reimbursement for private medical expenses under the provisions of 38 U.S.C.A. § 1725 and its implementing regulations are not met. Subsection (g) requires that the Veteran have no coverage under a "health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment." The term "health-plan contract" includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C.A. § 1395(c)) or established by section 1831 of that Act (42 U.S.C.A. § 1395(j)). 38 U.S.C.A. § 1725(f)(2)(B); 38 C.F.R. § 17.1001(a)(2). In other words, Medicare is an enumerated "health-plan contract." The evidence in the current appeal plainly shows that the Veteran reported to the private medical facility that treated him that he had Wellcare Medicare HMO as an insurer. See claim form from the treating private hospital. More importantly, the Veteran stated in his Notice of Disagreement that he has "Well Care and the VA, but not other insurance." In addition, he requested in his VA Form 9 that "VA pay [that] which was not covered under my other health insurance." By making such statements, the Veteran acknowledges that he had alternate coverage for payment of the emergency treatment incurred in February 2013 and that Medicare has covered at least part of that treatment. The Board notes that the amount the Veteran is seeking is $30, the amount of his co-pay. Since the Veteran had coverage under a "health-plan contract" (i.e., Wellcare/Medicare HMO) for the emergency treatment, he is not entitled to coverage under the provisions of 38 U.S.C.A. § 1725 and its corresponding regulations. The information the Veteran has provided is insufficient to confer entitlement to payment or reimbursement for any of the expenses being considered in this appeal. The record clearly establishes that he was covered by insurance at the time the expenses were incurred in February 2013. The law is clear that 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, and the Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. As the Board finds that the Veteran does not meet one of the criterion of 38 U.S.C.A. § 1725/38 C.F.R. § 17.1002, reimbursement for any amount is prohibited, and the Board need not discuss further whether the Veteran meets any of the other criteria as the failure to meet one of them precludes payment. Thus, the preponderance of the evidence is against this claim, and it must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to payment or reimbursement of unauthorized private medical expenses incurred from February 22, 2013, through February 26, 2013, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs