Citation Nr: 1334310 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-20 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred for medical care provided by the Mayo Clinic on December 22, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to December 1957. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. 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). The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing held in August 2013. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran incurred expenses as a result of medical treatment at the Mayo Clinic on December 22, 2010. 2. There was no prior authorization for the medical services in question. 3. The medical services in question were not for a service-connected disability. 4. At the time the treatment was rendered, the Veteran had coverage under a health-plan contract for payment or reimbursement for at least part of the costs incurred. CONCLUSION OF LAW The criteria for payment or reimbursement for medical care provided by the Mayo Clinic on December 22, 2010, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). However, the United States Court of Appeals for Veterans Claims (Court) ruled in Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive. In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court also held that the provisions of the VCAA are not applicable to statutes and regulations, which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. §1725, the provisions of the VCAA are not applicable. Nonetheless, the provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 (2012) discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124 (2012), the Veteran has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132 (2012). VA complied with these provisions in this case. Consequently, the duty to notify and assist has been met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's August 2013 hearing, the Acting VLJ asked pertinent questions to ascertain if the claimant met the criteria for payment or reimbursement for medical care provided by a private healthcare provider. The Acting VLJ also inquired if there were additional records that might have been overlooked and that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Therefore, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis The Veteran contends that he is entitled to payment or reimbursement of the costs of his treatment at the Mayo Clinic on December 22, 2010. VA has received a medical bill from the Mayo Clinic for payment in relation to the Veteran's medical treatment on December 22, 2010. Payment for the aforementioned medical care was denied by VA in a February 2011 administrative decision on the basis that the treatment was received for non-emergent care and because the Veteran had Medicare Part A. The facts of the case are not in dispute. On December 22, 2010, the Veteran sought care at the Mayo Clinic emergency room at 8:04 am. The emergency department record indicates that he was experiencing abdominal pain which had onset three days prior. The pain had been gradual in nature. The pain level was 6/10. The Veteran was noted be fully-oriented and in no acute distress. The emergency room note indicates that the Veteran was "... accompanying his friend who is upstairs having cardiology testing; he decided to come have the emergency department evaluate his symptoms since he was already here and waiting." The clinical impression was abdominal pain. VA treatment records show the Veteran sought follow-up care at the VA medical facility in Lake City, Florida, on December 27, 2010, with a complaint of abdominal pain for several days. He was diagnosed with mild diverticulitis. At his hearing in August 2013, the Veteran testified that his abdominal pain was "tremendous," he was scared, and thought the pain was life-threatening. He also indicated that because he was already at the Mayo Clinic, because of his significant other, he believed that the most prudent course of action was to seek treatment there instead of driving over 80 miles to the nearest VA hospital. The Veteran also testified that he did not have any medical coverage at the time of Mayo Clinic emergency room visit on December 22, 2010. In support of his claim, the Veteran provided a letter dated in April 2011 from the emergency room doctor who treated him on December 22, 2010. In the letter, the doctor wrote, in part, that the Veteran's ". . . concern and decision to seek Emergency Department evaluation was reasonable." In May 2011, a VA physician reviewed the claim file. The physician indicated that according to the emergency room notes, the Veteran went to the emergency room on December 22, 2010, with a complaint of a gradual onset of abdominal pain for the past three days. The physician stated that "[A] true emergency is considered the date of the onset of the abdominal pain, not three days later. During that period the patient was symptomatic, including the day he went to the ER he could have come to the nearest VA facility." As a preliminary matter in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received in a private facility. See Smith v. Derwinski, 2 Vet. App. 378 (1992); 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). There is no evidence in the claim file showing that authorization was requested prior to receiving services at the Mayo Clinic on December 22, 2010, and there is no evidence of record suggesting that any such authorization was given for treatment. 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. There is no evidence that the Veteran made an application to VA within 72 hours after the hour of admission on December 22, 2010. Based on the foregoing, the medical services received on December 22, 2010, were not authorized. 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. Thirty-eight 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 (2012). 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). In this case, the Veteran is not service-connected for any disability. He also is not a participant in a vocational rehabilitation program. Therefore, payment of the unauthorized medical expenses incurred as a result of his treatment at the Mayo Clinic on December 22, 2010, is not warranted under 38 U.S.C.A. § 1728. 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 (2012). 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 (2011). 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. The Board finds payment is also not warranted under the Millennium Health Care Act. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. As shown, to be eligible for reimbursement, the treatment must satisfy certain conditions. All nine statutory requirements (a through i) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); see also Hayes v. Brown, 6 Vet. App. 66, 68 (1993). As noted above, to be eligible for payment or reimbursement for emergency services that are not previously authorized under 38 U.S.C.A. § 1725, the Veteran cannot have coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. See 38 C.F.R. § 17.1002(g). For these purposes, the term "health-plan contract" 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 expense of such services are paid. It also includes, but is not limited to, an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c), which refers to the Medicare program administered by the Social Security Administration; certain State plans for medical assistance; and workers' compensation laws or plans. 38 U.S.C.A. § 1725(f)(2); 38 C.F.R. § 17.1001(a). While the Veteran testified that he did not have any medical coverage for this emergency room visit at the Mayo Clinic on December 22, 2010, the record shows that he has been in receipt of Medicare Part A since July 1989. In addition, the billing statement from the Mayo Clinic reflects that TriCare, a health-plan contract, paid a portion (i.e. $715.48) of the Veteran's medical expenses for the treatment received on December 22, 2010. Accordingly, because the evidence of record shows the Veteran had Medicare Part A coverage at the time of the December 22, 2010, emergency room visit at the Mayo Clinic and that TriCare, a health-plan contract, paid a portion of his medical expenses in connection with that treatment, it is unnecessary to discuss the other criteria, including whether the Veteran's condition was emergent in nature or whether a VA or other Federal facility was feasibly available, or if an attempt to use such facility would have been reasonable. Based on the undisputed evidence, the Veteran does not meet the criteria for entitlement to payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at the Mayo Clinic on December 22, 2010, under applicable statutes and regulations. Although the Board is sympathetic toward the Veteran, it 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). As all the criteria for payment or reimbursement of unauthorized medical expenses have not been met under 38 U.S.C.A. § 1728a or under 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002- the claim for reimbursement or repayment of unauthorized medical expenses incurred as a result of treatment received on December 22, 2010, at the Mayo Clinic is denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of medical care provided by the Mayo Clinic on December 22, 2010, is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs