Citation Nr: 1333905	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  07-32 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses for services rendered at Southern Tier Plastic Surgery Associates, P.C., on June 26, 2007.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel






INTRODUCTION

The Veteran served on active duty from February 2003 to May 2004. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the Department of Veterans Affairs Medical Center (VAMC) in Canandaigua, New York.  The VAMC denied the Veteran's claim of entitlement to payment of unauthorized medical expenses for services received at Southern Texas Plastic Surgery Associates on June 26, 2007.  The Veteran timely appealed the VAMC's adverse decision, and this appeal ensued. 

The Board remanded this case in March 2009 and May 2011.  

As noted in the most recent remand, in October 2008, the VA Regional Office (RO) in Buffalo, New York, issued a rating decision by which a 50 percent rating for posttraumatic stress disorder (PTSD) was continued.  In November 2008, the Veteran submitted a notice of disagreement with the 50 percent rating and also submitted a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU).  The Board's Veterans Appeals Control and Locator System (VACOLS) indicates that a statement of the case on the issue of entitlement to a rating in excess of 50 percent for PTSD was issued in April 2009.  There is evidence in the claims file of notice and development with respect to the claim for entitlement to TDIU but no corresponding rating decision is in the claims file as constituted at the Board.  The issue of entitlement to a TDIU has been raised by the record, but there is no indication in the claims file that it has been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board does not have jurisdiction over it, and it is once again REFERRED to the RO for appropriate action.






FINDINGS OF FACT

1.  From June 19, 2007, to June 23, 2007, the Veteran was hospitalized at a non-VA hospital for second and third degree burns; Under the Veterans Millennium Health Care and Benefits Act, VA approved payment or reimbursement of the incurred non-VA medical expenses.    

2.  On June 26, 2007, a physician associated with Southern Tier Plastic Surgery Associates, P.C., a non-VA medical practice, conducted the Veteran's first post-hospital burn check; this medical treatment was not authorized by VA and was not rendered in a medical emergency.   


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses arising from services received at Southern Tier Plastic Surgery Associates, P.C., on June 26, 2007, have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The Court has, however, carved out exceptions where the provisions of the VCAA are not applicable.  See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006).  Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable.  Nevertheless, the Veteran was provided with notification under the duty to notify in July 2007.  The Veteran has been provided opportunities to identify or provide pertinent evidence in support of his claim and he has provided pertinent evidence and argument.  Further development is not warranted.


Legal Criteria and Analysis

On June 19, 2007, the Veteran presented to the emergency room at St. Joseph's Hospital because he burned his body after placing gasoline on a lit fire.  He was diagnosed with first, second, and third degree burns on multiple parts of his body and ultimately admitted for local wound care.  He was discharged on June 23, 2007, with healing superficial burns.  One of the treating physicians during the hospitalization is associated with Southern Tier Plastic Surgery Associates, P.C.

On June 26, 2007, the Veteran presented to Southern Tier Plastic Surgery Associates, P.C. for his first post-hospital burn check.  The physician noted that most of the Veteran's burns had healed, and dressings were applied to the unhealed areas.  A one-week recheck was scheduled.

The Veteran sought VA payment or reimbursement for the medical expenses incurred on June 26, 2007.  In July 2007, the VAMC denied the Veteran's because the treatment in question was not pre-authorized by VA.  

In an August 2007 letter, the VAMC explained to the Veteran that all non-VA non-emergent treatment requires pre-authorization in writing before the treatment is received.  The Veteran disagreed and perfected this appeal.

Congress has authorized the reimbursement for payment for unauthorized emergency medical treatment of Veterans, under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  38 U.S.C.A. § 1728 applies to Veterans who have been granted service connection for at least one disability at the time they sought treatment or who were participants in a vocational rehabilitation program. 

Entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility, under 38 U.S.C.A. § 1728, requires that: 

(a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j) (2000)); and 

(b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and 

(c) 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 reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2013). 

All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized.  See Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Veterans Millennium Health Care and Benefits Act 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 (i.e., enrolled in the annual patient enrollment system and recipients of a VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008 (2013).

Pursuant to 38 C.F.R. § 17.1002, payment or reimbursement under 38 U.S.C.A. § 1725 for emergency treatment for nonservice-connected disabilities in non-VA facilities is only allowed if all of the following criteria are met:

(a) The emergency services were provided in a hospital emergency department or 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 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 was 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 function, 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 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 for a 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; and

(i) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided.  See 38 C.F.R. § 17.1002 (2013). 

Effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities.  The purpose of the amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728.  The amendments include, but are not limited to, making the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the "prudent layperson" standard.   See also, Swinney v. Shinseki, 23 Vet. App. 257, 266, footnote 6 (2009).

Initially, the Veteran does not contend and the evidence does not show that the medical services rendered on June 26, 2007, at Southern Tier Plastic Surgery Associates, P.C., were pre-authorized by VA.  

The claim must therefore be analyzed under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728 and the implementing regulations, whichever is applicable.  

The preponderance of the evidence is against the claim under either statute.  There is no evidence that the treatment in question was rendered in a medical emergency and it cannot be reasonably argued that a prudent layperson would expect that a delay in seeking such treatment would have been hazardous to life or health.  Instead, the medical note reflecting the actual treatment on June 26, 2007, shows that the Veteran received his first wound check since his hospital stay.  The physician noted that most of the Veteran's burns had "pretty much healed," and the unhealed areas received new dressings.  The treatment in question was simply a follow-up visit and there is no indication that this follow-up visit was emergent in any way. 

The criteria under 38 U.S.C.A. § 1725 and 38 U.S.C.A. § 1728 are conjunctive, not disjunctive; therefore all criteria must be met prior to entitlement.  Because at least one of the criteria (the existence of emergent medical treatment) is not met, payment or reimbursement is prohibited under the applicable statutes and implementing regulations.  The Board need not further discuss whether he meets any of the other criteria, as the failure to meet any of them precludes payment or reimbursement of unauthorized medical expenses.

The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be equitable.  See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "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).  The purpose of these statutes is to provide payment or reimbursement for medical expenses incurred in emergency situations (or reasonably perceived emergency situations) where VA or government facilities are not feasibly available - not to provide payment for ongoing non-emergent care, such as follow-up wound care at a non-VA facility.   

Accordingly, as the preponderance of the evidence is against the Veteran's claim and therefore the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

ORDER

Payment or reimbursement of unauthorized medical expenses for services rendered at Southern Tier Plastic Surgery Associates, P.C., on June 26, 2007, is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs