Citation Nr: 1339217	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  13-22 665	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Network Payment Center in Portland, Oregon


THE ISSUE

Entitlement to reimbursement for unauthorized medical expenses incurred at the Asante Three Rivers Medical Center in Grants Pass, Oregon, between January 7, 2013, and January 10, 2013.  

ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013).  

The Veteran served on active duty from November 1955 to November 1959.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision of the Northwest Network Payment Center in Portland, Oregon, of the Department of Veterans Affairs (VA), which denied the Veteran's claim of entitlement to reimbursement for unauthorized medical expenses incurred at the Asante Three Rivers Medical Center.  A May 2013 Administrative Review of the case upheld the denial.  


FINDINGS OF FACT

1.  Between January 7, 2013, and January 10, 2013, the Veteran was transported by private vehicle and received medical services for a nonservice-connected disability at the Asante Three Rivers Medical Center in Grants Pass, Oregon, a non-VA medical facility for which he incurred medical expenses. 

2.  The Veteran is not service-connected for any disability.  

3.  At the time of the care, the Veteran had coverage under a health-plan contract for payment or reimbursement.  


CONCLUSION OF LAW

The criteria for payment or reimbursement of emergency services for a nonservice-connected disability at the Asante Three Rivers Medical Center, in Grants Pass, Oregon, a non-VA facility, between January 7, 2013, and January 10, 2013, have not been met.  38 U.S.C.A. §§ 1725, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 17.1000, 17.1001, 17.1002 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking reimbursement or payment of the costs associated with medical services he received at Asante Three Rivers medical Center in Grants Pass, Oregon, from January 7, 2013, through January 10, 2013.  The Veteran has reported that he was transported in a private vehicle to the emergency room, and hospital records show that his chief complaints included hypertension and heart failure.  

The Veteran asserts that VA has always billed Medicare on his behalf whether he was treated at a VA medical center or at a private facility.  See his July 2013 statement.  The Veteran argues that he is unable to pay his medical bill to this private facility as he lives on Social Security check alone.  

The Board notes that there is no indication from the record, nor has the Veteran alleged, that he meets any criterion for benefits under 38 U.S.C.A. § 1728 (applicable where a Veteran has a total disability, or, treatment at the private medical facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program).  See 38 C.F.R. §§ 17.120, 1747(i) (2013).  Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725 (West 2002 & Supp. 2013).  

Under 38 U.S.C.A. § 1725, a veteran is only considered to be "personally liable" for treatment if he/she has no entitlement to care or services under a health-plan contract, which 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 expenses of such services are paid.  38 U.S.C.A. § 1725(b)(3)(B) (West 2002 & Supp. 2013).  In addition, the provision at 38 U.S.C.A. § 1725(f)(2)(A) (West 2002 & Supp. 2013) defines the term health-plan contract to include 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 expenses of such services are paid.  This definition includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C. 1395c) or established by section 1831 of that Act (42 U.S.C. 1395j).  See 38 U.S.C.A. § 1725(f)(2)(B).  42 U.S.C. 1395c refers to Medicare Part A and 42 U.S.C. 1395j refers to Medicare Part B.  That is, the law and regulations specifically exclude payment under the Millennium Act if the appellant has coverage under either Medicare Part A or Medicare Part B.  

The Board notes that 38 U.S.C.A. § 1725 was amended in February 2010.  See Pub. L. No. 111-137, § 1(a), (b), 123 Stat 3495 (2010).  However, the change in law was meant to address certain circumstances where a veteran had third-party insurance that would pay a portion of the costs associated with emergency treatment in a private facility but the Veteran would be responsible for the remainder of the costs.  An example provided in the House report described where a veteran had minimal health insurance coverage through a state-mandated automobile insurance policy.  Prior to the change in the law, the minimal coverage would prohibit VA from covering any part of the expense.  See House Report 111-55, March 26, 2009.  The change in the law removed 38 U.S.C.A. § 1725(f)(2)(E) which included automobile insurance carriers in the definition of a health-plan contract.  The amendments did not affect the previously established prohibition against VA paying or reimbursing for emergency medical treatment where the veteran had a health-plan contract in place as described above.  

The applicable regulation for claims under 38 U.S.C.A. § 1725, 38 C.F.R. § 17.1002, provides that all of the listed conditions must be met in order to establish eligibility for payment or reimbursement of unauthorized medical expenses.  Included in the list of conditions is the requirement that the claimant have no coverage under a health-plan contract for payment, in whole or in part, for the emergency treatment.  38 C.F.R. § 17.1002(f) (2013).  Effective May 21, 2012, VA published a final rule in the Federal Register amending 38 C.F.R. § 17.1002 to conform to the 2010 statutory changes.  See 77 Fed. Reg. 23,615 (April 20, 2012).  In the Supplementary Information section, VA specifically addressed a commenter's suggestion that VA remove the term "or in part" from current § 17.1002(f).  VA noted that the 2010 statutory changes removed the term "or in part" from 38 U.S.C.A. § 1725(b)(3)(C) (pertaining to contractual or legal recourse against a third party) and that section 1725(b)(3)(B) (pertaining to a health-plan contract) had no such revisions.  VA stated, "In other words, section 1725(b)(3)(B) requires that the veteran have 'no entitlement to care or services under a health-plan contract,' which means that any entitlement, even a partial one, bars eligibility under section 1725(b) ... The current language of § 17.1002(f) clarifies the language of section 1725(b)(3)(B) by reiterating the veteran's liability for emergency treatment if such veteran has no health-plan contract 'in whole or in part.'"  

In this case, it appears that the Veteran seeks reimbursement for medical expenses at a private facility for which he feels that Medicare benefits should have been filed for him.  However, this fact is not relevant under the foregoing statute and regulation.  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."  See 38 C.F.R. § 17.1002(f) (2012).  It is clear in this case that the Veteran has other insurance benefits for which he may file and obtain reimbursement for all or part of his medical expenses originating from the medical treatment at a private facility in January 2013.  

The evidence in this case is unequivocal.  The Veteran has a health-plan contract as defined by the statute.  He has not disputed this fact.  This coverage is a bar to payment by VA.  See 38 U.S.C.A. § 1725(b)(3)(B) (West 2002 & Supp. 2012); 38 C.F.R. § 17.1002(f) (2012).  It appears from the Veteran's July 2013 statement that he is frustrated with VA's failure to file a claim for his Medicare benefits for the treatment he received at a private facility in January 2013.  While the Board appreciates that the Veteran is frustrated by VA's failure to file his claim for Medicare benefits, it is bound by the law, and its decision is dictated by the relevant statute and regulations.  Simply put, the Veteran's claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  

Because the record in this case shows that undisputed facts demonstrate that the Veteran's claim for reimbursement of payment of unauthorized medical expenses is barred by applicable statutory and regulatory provisions, the Board finds that the VCAA does not apply to this appeal.  See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004.  


ORDER

Entitlement to reimbursement for payment of unauthorized medical expenses incurred at Asante Three Rivers Medical Center from January 7, 2013, to January 10, 2013, is denied.  




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs