Citation Nr: 1335201 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-03 347A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Portland, Oregon THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Inland Imaging Associates and Providence Sacred Heart Medical Center (billed as Rockwood Clinic) from September 17, 2012, to September 18, 2012. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Portland, Oregon, which denied the benefits sought on appeal. In July 2013, the Veteran submitted claims for service connection for a psychiatric disability, hearing loss, a low back disability, and pneumonia. During a September 2013 hearing before the undersigned, the Veteran raised claims of entitlement to service connection for gastrointestinal bleeding and compensation under 38 U.S.C.A. § 1151 for gastrointestinal bleeding as a result of treatment at a VA facility. Those claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those issues, and they are referred to the AOJ for appropriate action. 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 has no service-connected disabilities. 2. The Veteran received medical care for gastrointestinal bleeding from Inland Imaging Associates and Providence Sacred Heart Medical Center (billed as Rockwood Clinic) from September 17, 2012, to September 18, 2012. 3. At the time of the care, the Veteran had coverage under a health-plan contract (Medicare) for payment or reimbursement. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement of unauthorized medical expenses incurred at Inland Imaging Associates and Providence Sacred Heart Medical Center (billed as Rockwood Clinic) from September 17, 2012, to September 18, 2012, have not been met. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.93, 17.120, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Board is cognizant of VA's duties to notify and assist a claimant at the time that he files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, those duties do not apply to claims such this one that fall within the parameters of 38 U.S.C.A Chapter 17. 38 C.F.R. §§ 17.123-17.132 (2012); Barger v. Principi, 16 Vet. App. 132 (2002); Manning v. Principi, 16 Vet. App. 534 (2002) (VA's duties to provide notice and assistance to claimants have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter). Notwithstanding the inapplicability of the above provisions, the Board finds that in this case, the agency of original jurisdiction effectively explained to the Veteran the basis for its denial of payment or reimbursement for his September 2012 private medical expenses. Moreover, the Veteran has been afforded the opportunity to submit written statements and related evidence in support of his medical reimbursement claim. The Veteran participated in a hearing before the undersigned in September 2013, and a transcript of that hearing has been associated with the record. In light of the foregoing, the Board finds that VA has satisfied any duties to notify and assist the Veteran in the development of his claim. Applicable Regulations and Analysis The Veteran contends that he is entitled to payment or reimbursement of unauthorized medical expenses incurred at Inland Imaging Associates and Providence Sacred Heart Medical Center (billed as Rockwood Clinic) from September 17, 2012, to September 18, 2012. During his September 2013 hearing, the Veteran indicated that he experienced a gastrointestinal bleed, but could not be seen at a VA Medical Center because it was full. The Veteran contends that he was then redirected by ambulance to Providence Sacred Heart Medical Center in Spokane, Washington, where he underwent an upper endoscopy. Inland Imaging Associates billed the Veteran for a September 17, 2012, radiological examination of the chest. When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, 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) (West 2002); 38 C.F.R. § 17.52 (2012). The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2012); Malone v. Gober, 10 Vet. App. 539 (1997). 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 (2012). The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran's treatment from September 17, 2012, to September 18, 2012, was authorized in advance. Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities when: (a) Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other federal facilities 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. 38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2012). All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). In this case, the Veteran is not service-connected for any disabilities, nor is he a participant in an eligible rehabilitation program. Thus, payment or reimbursement of medical expenses pursuant to 38 U.S.C.A. § 1728(a) must be denied. The Board will next consider whether payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities is authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. To be eligible for reimbursement under those statutory and regulatory provisions, the Veteran must 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 such provider 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 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 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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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 C.F.R. § 17.1002 (2012). The criteria under 38 C.F.R. § 17.1002 are conjunctive, not disjunctive. Therefore, all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). In this case, the Veteran's claim for reimbursement fails because criteria (g) above has not been satisfied. A "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 or coverage provided by the Medicare program administered by the Social Security Administration. 38 U.S.C.A. § 1725(b)(3)(B), (f)(2)(A)(B) (West 2002). Therefore, payment or reimbursement is specifically excluded if the Veteran has coverage under Medicare Part A or Medicare Part B. In this instance, the evidence of record indicates that the Veteran has coverage under Medicare, and billing records indicate that Medicare paid for much of the cost associated with the treatment in question. During the Veteran's September 2013 hearing, he indicated that Medicare paid "80 percent" of the costs associated with the treatment. Having established that the Veteran was covered under a health-plan contract for payment or reimbursement, in whole or in part, from September 17, 2012, to September 18, 2012, the Board finds that the Veteran is ineligible to receive payment or reimbursement for that treatment from VA. Accordingly, the Board need not address the remaining criteria of eligibility for payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1725 and its implementing regulations. In the absence of evidence showing that the Veteran meets the criteria for payment or reimbursement of non-VA medical services, either on the basis of eligibility under 38 U.S.C.A. § 1728 or under 38 U.S.C.A. § 1725, the Board finds that payment or reimbursement of those services is not warranted. In reaching this decision, the Board is sympathetic to the Veteran's contentions. Nevertheless, the Board lacks the discretion to award medical care benefits on an equitable basis and is instead bound to observe the limits on its authority set forth by VA statutes and regulations. Those governing provisions direct that where, as here, the preponderance of the evidence is against the Veteran's claim for payment or reimbursement of unauthorized medical expenses, that claim must be denied. ORDER Payment or reimbursement of unauthorized medical expenses incurred at Inland Imaging Associates and Providence Sacred Heart Medical Center (billed as Rockwood Clinic) from September 17, 2012, to September 18, 2012, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs