Citation Nr: 1339274 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-08 201A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment of or reimbursement for unauthorized medical expenses incurred in connection with private medical services rendered by Central Florida Health Alliance, Villages Regional Hospital, from September 21, 2009 to September 23, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from August 1962 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision by the Medical Administration Service (MAS) of the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. The Virtual VA claims file has been reviewed. FINDINGS OF FACT 1. The Veteran has been granted a TDIU. 2. The Veteran was treated at Central Florida Health Alliance, Villages Regional Hospital, from September 21, 2009 to September 23, 2009, for a nonservice-connected disability. 3. The Veteran's treatment was not rendered in a medical emergency 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, and a VA facility was feasibly available. 4. The Veteran has TriCare health insurance. CONCLUSION OF LAW The criteria for reimbursement for the cost of medical treatment provided at Central Florida Health Alliance, Villages Regional Hospital, from September 21, 2009 to September 23, 2009 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1002 (pre and post January 20, 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.159 and 3.326(a) (2013). The claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code. The law pertaining to the duty to notify and to assist and its implementing regulations are not applicable to such claims. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004). Legal Criteria for Reimbursement by VA The Veteran is claiming reimbursement for treatment received at the Villages Regional Hospital, part of the Central Florida Health Alliance, from September 21, 2009 to September 23, 2009. He essentially asserts that he sought treatment there in an emergency situation that was hazardous to his life and health. According to the Veteran, his abdominal pain was so severe as to prohibit him from seeking care elsewhere. In the alternative, the Veteran acknowledges that the such reimbursement is not available where a veteran has private insurance, as he does, but asserts that he should be reimbursed because his insurance under TriCare only covers a portion of his care at the hospital. At the outset, the Board finds that expenses for the treatment at issue were not preauthorized by VA. The Veteran has not asserted that he contacted the VA at any point before or during his hospitalization to obtain authorization, and VA records show that no one contacted the VA facility for any reason until September 22, 2009, one day before the Veteran's discharge. The Veteran has not alleged that he ever personally contacted VA for authorization and nothing in his statements can be construed as an assertion that he obtain preauthorization for any of the treatment he received from September 21, 2009 to September 23, 2009. The Board points out that the Veteran is in receipt of TDIU. The Veteran was initially granted a TDIU effective July 21, 2004; a temporary total evaluation was assigned from July 2, 2008 through July 31, 2009 and the TDIU was reinstated effective August 1, 2009. Therefore, he meets the first criteria to be considered for payment of unauthorized medical expenses under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 (2013). However, in order for unauthorized medical expenses to be paid under this code, the services must have been provided in a medical emergency of such nature that delay would have been hazardous to life or health and 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. The Board finds that, based upon the evidence of record, the Veteran does not meet two criteria necessary for reimbursement under 38 C.F.R. § 17.120. The Board finds that the services rendered were not in an emergency, such that delay would have been hazardous to the Veteran's life or health under the prudent layman standard. The Veteran was able to walk into the emergency room, admit himself, and report his own history to the treating physician. The hospital records dated on September 21, 2009 (a Monday) reveal that the Veteran was not suffering from an emergency that was hazardous to his health and that he had been suffering from the same symptoms on that day that he had experienced for several days prior; he complained of abdominal pain since Thursday, constipation since Wednesday, and nausea and vomiting since Friday. He was able to speak and even walked into the emergency department of the hospital for treatment. Although the Veteran asserts that his abdominal pain was too severe to seek care elsewhere, the medical records from his admission reflect that his emergency room was not emergent. This evidence also conflicts with the Veteran's subsequent statements, in which he asserts that he was too ill, and his abdominal pain too severe, to wait until the local VA medical center opened. In fact, the Veteran alleges that he had to seek treatment at 1:30am, even though the emergency room treatment report shows that the Veteran waited on a stretcher, resting comfortably, until 5:00am for evaluation, and that he was not transported to a room until 10:30am. Moreover, the Veteran's own statements indicate that he did not undergo surgical treatment until the next day. A person's report to medical professionals regarding his present symptomatology and medical history at the time of receiving care, especially emergency room care, is highly probative evidence with regard to his condition at that time. The Board finds that the emergency room report and report of an examination conducted on that day are more probative than the Veteran's statements later as to his condition upon admission to the hospital. Thus, the hospital records reveal that the Veteran was not suffering from an emergency that was hazardous to his life or health and that he had been suffering from the same symptoms on that day that he had experienced for days prior. As such, the Veteran does not meet the criteria for reimbursement of medical expenses under the criteria of 38 C.F.R. § 17.120. As the Veteran does not meet the criterion for benefits under 38 U.S.C.A. § 1728, 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. At the time of his admission on September 21, 2003, the records indicate that the Veteran reported that he had private medical insurance via TriCare and gave the hospital his policy number. September 22, 2009 correspondence between VA and the hospital shows that the VA was informed that the Veteran had insurance through TriCare, and that the hospital administrator was informed by VA that the Veteran was not eligible for reimbursement. 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. See 38 U.S.C.A. § 1725(b)(3)(B) (West 2002). In addition, the provision at 38 U.S.C.A. § 1725(f)(2)(A) defines a 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. 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. 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. Significantly, 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 and 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. See 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). The current language of 38 C.F.R. § 17.1002(f) clarifies the language of 38 U.S.C.A. § 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. The Board recognizes that the Veteran seeks payment for the portion of medical expenses not covered by TriCare. However, the fact that not all of the medical expenses from this treatment were covered completely by TriCare 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). 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. He has coverage under TriCare and this coverage is a bar to payment by VA. See 38 U.S.C.A. § 1725(b)(3)(B); 38 C.F.R. § 17.1002(f). While the Board understands the Veteran is frustrated by VA's failure to pay for expenses that TriCare did not cover and is sympathetic toward the Veteran, it is bound by the law, and its decision is dictated by the relevant statute and regulations. The Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). ORDER Entitlement to payment or reimbursement for the cost of medical treatment provided at Central Florida Health Alliance, Villages Regional Hospital, from September 21, 2009 to September 23, 2009, is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs