Citation Nr: 1336886 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 13-12 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for expenses incurred for non-VA medical services at Capital Regional Cardiology Associates on September 27, 2012. (A separate decision with a different docket number will be provided as to issues on appeal from a Regional Office, for which the Veteran has another representative.) REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. As discussed below, a claim was received in October 2012 for a balance due for treatment at Capital Regional Cardiology Associates on September 27, 2012, which was adjudicated by the agency of original jurisdiction (AOJ). Nevertheless, the Veteran's arguments as to why he believes VA authorized him to seek non-VA emergency treatment and his statements as to the circumstances of such treatment, including whether it was for a medical emergency, appear to refer to treatment received at Capital Regional Medical Center on September 5-6, 2012. Accordingly, a claim for payment or reimbursement for expenses incurred for non-VA medical services at Capital Regional Medical Center from September 5-6, 2012, has been raised by the record. This issue has not been adjudicated or addressed by the AOJ. Therefore, the Board has no jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The non-VA treatment on September 27, 2012, for which reimbursement is sought was rendered without prior VA authorization, treatment was not for a medical emergency, and VA facilities were feasibly available and it would have been reasonable to attempt to use such facilities or obtain prior VA authorization. CONCLUSION OF LAW The criteria for payment or reimbursement of medical expenses not previously authorized incurred for treatment at Capital Regional Cardiology Associates on September 27, 2012, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.120, 17.121, 17.1000-17.1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist In general, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, as the claim in this case is governed by 38 U.S.C.A. Chapter 17, the provisions of the VCAA do not apply. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Moreover, the VCAA provisions are not implicated because the application of the pertinent statutes and regulations to the undisputed facts is dispositive of the issue on appeal. Sabonis v. Brown, 6 Vet. App. 426 (1994). Further, the Veteran has been made aware of the requirements to substantiate his claim, including in a March 2013 letter, and he has had a fair opportunity to present arguments and evidence in support of his claim. All pertinent evidence has been obtained. Both the medical appeals file and the claims file are before the Board and have been considered, including the paper claims file and an electronic (paperless) claims file in Virtual VA. No further notice or assistance is required. II. Legal Analysis To be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, the requirements of either 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725, and implementing regulations, must be met. Section 1728 essentially applies to non-VA treatment for a service-connected condition; a nonservice-connected condition that is aggravating a service-connected disability; or any condition if (1) a veteran has been adjudicated totally and permanently disabled due to service-connected conditions, or (2) the veteran is participating in a qualified vocational rehabilitation program under 38 U.S.C.A. Chapter 31. See 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. Section 1725 applies to treatment for nonservice-connected conditions. Under 38 U.S.C.A. § 1725 and implementing regulations, VA will pay or reimburse the reasonable value of emergency treatment furnished for a nonservice-connected condition in a non-VA facility where the veteran is an active VA healthcare participant (meaning enrolled in the annual patient enrollment system and in receipt of VA hospital, nursing home, or domiciliary care under such system within the preceding 24 months); and is personally liable for such emergency treatment (essentially meaning financially liable and not eligible for reimbursement under 38 U.S.C.A. § 1728). 38 U.S.C.A. § 1725(a), (b); 38 C.F.R. § 17.1002. To be considered financially liable to the provider and, therefore, eligible for payment or reimbursement under 38 U.S.C.A. § 1725, the Veteran cannot have coverage under a health-plan contract for payment or reimbursement for the emergency treatment. See 38 U.S.C.A. § 1725(b)(3); 38 C.F.R. § 17.1002(f). For these purposes, as pertinent to this case, the term "health-plan contract" specifically includes 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. 38 U.S.C.A. § 1725(f)(2); 38 C.F.R. § 17.1001(a). Under both Section 1725 and Section 1728, two overall requirements must be met: (1) the treatment must have been for a medical emergency of such nature that a prudent lay person would reasonably expect that a delay in seeking immediate medical attention would be hazardous to life or health; and (2) VA or other Federal facilities must not have been feasibly available and an attempt to use them beforehand or to obtain prior VA authorization would not have been reasonable. 38 U.S.C.A. §§ 1725(f), 1728(a), (c); 38 C.F.R. §§ 17.120, 17.1002. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107. Here, the Veteran seeks payment or reimbursement of medical expenses incurred for non-VA medical services at Capital Regional Cardiology Associates on September 27, 2012. He states that he was experiencing severe chest pains, and he called the VA outpatient clinic and was advised to go directly to the Capital Regional Medical Center, where he was admitted for observation overnight and underwent a sonogram of the heart. He asserts that this constituted prior authorization for the non-VA treatment. The Veteran admits that he had primary insurance coverage through Medicare, Parts A and B, but he requests that VA act as a secondary payor to cover the balance due. See October 2012 claim, October 2012 notice of disagreement, and March 2013 substantive appeal (VA Form 9). Although the Veteran refers to the circumstances allegedly leading to his seeking non-VA treatment in the emergency room, resulting in admittance and testing, he repeatedly refers to the date as September 27, 2012. Further, the bill or claim submitted in October 2012 was for care on September 27, 2012. The evidence includes VA treatment records dated throughout 2012, as well as records from Capital Regional Medical Center and Capital Regional Cardiology Associates dated in September 2012. These records clearly reflect that the episode of care on September 27, 2012, was a follow-up treatment session at Capital Regional Cardiology Associates after the Veteran was admitted to Capital Regional Medical Center on September 5-6, 2012, for complaints of recurrent chest pain when he presented to the emergency room at that time. A claim for payment or reimbursement for treatment on September 5-6, 2012, has been referred to the AOJ. The Board first finds that VA did not authorize the non-VA treatment on September 27, 2012, in advance. The Veteran's statements that he called VA and was told to go to the emergency room refer to treatment at the emergency room several weeks earlier on September 5. The September 27, 2012, episode of care was clearly a scheduled follow-up for a clinical office visit. There is no argument or evidence that it was scheduled with VA authorization. Similarly, the treatment received on September 27, 2012, clearly was not for a medical emergency. Rather, it was a scheduled follow-up session after the Veteran sought non-VA treatment for chest pains at the emergency room on September 5, 2012. Further, a VA facility was feasibly available and it would have been reasonable to use such facility or seek prior VA authorization, as September 27, 2012, was a Thursday and the scheduled treatment was during normal business hours. Accordingly, the two overall requirements for payment or reimbursement of unauthorized non-VA treatment on September 27, 2012, have not been met. Therefore, it is unnecessary to discuss the other requirements under Sections 1725 or 1728, to include the effect of the Veteran's Medicare coverage. 38 U.S.C.A. §§ 1725(f), 1728(a), (c); 38 C.F.R. §§ 17.120, 17.1002. The disposition is based on the application of pertinent statutes and regulations to the undisputed facts, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Payment or reimbursement for expenses incurred for non-VA medical services at Capital Regional Cardiology Associates on September 27, 2012, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs