Citation Nr: 1340430
Decision Date: 12/06/13	Archive Date: 01/17/14

DOCKET NO.  12-24 11OA	)        DATE 06 DEC 2013

On appeal from the Department of Veterans Affairs Medical Center in St. Cloud. MN

THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from December 27, 2010 through December 31, 2011.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL 

Appellant

ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel

INTRODUCTION

The Veteran had active duty service from November 1952 to November 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 administrative decision by the VA Medical Center in St. Cloud, Minnesota.

The Veteran was afforded a videoconference hearing before the undersigned in May 2013. The hearing transcript is of record.
Following the hearing, it was determined that the Veteran's private attorney representative was not accredited before VA. In September 2013, he was informed as such and given an opportunity to have another hearing. He did not respond.

A December 2013 memorandum from The American Legion, who was the previous representative, shows that they declined representation pursuant to their internal procedures. The American Legion contacted the Veteran to inform him about the withdrawal and inquired if he wished to reappoint them as his representative. He declined. The Veteran has not submitted a new VA Form 21-22a to appoint another representative. He is now unrepresented in the appeal.

Review of the Virtual VA electronic folder includes the May 2013 hearing transcript, but does not show any pertinent documents that have not already been associated with the physical claims folder.

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).

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FINDINGS OF FACT

1. The Veteran incurred medical expenses as a result of treatment at a private hospital/ outpatient center from December 27, 2010 through December 31, 2011; these services were not authorized by VA prior to receipt.

2. The unauthorized medical treatment did not concern a service connected disability.

3. The Veteran has health insurance coverage through Medicare, which constitutes coverage under a health-plan contract that would pay, in whole or in part.

CONCLUSION OF LAW

The criteria for reimbursement of unauthorized medical expenses incurred from December 27, 2010 through December 31, 2011 have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp 2013); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008(2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

As will be explained below, the Veteran's claim for reimbursement for medical expenses lacks legal merit. As the law, and not the facts, is dispositive of this

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claim, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).

Analysis

The agency of original jurisdiction denied the claim on the basis of non-emergent care. As explained below, the Veteran is ineligible for consideration under 38 U.S.C.A. § 1728 since the private medical treatment did not concern a service connected disability. He is not eligible for consideration under 38 U.S.C.A. § 1725 as he is covered by Medicare. The claim must be denied as a matter of law, and the issue of whether the medical care was emergent or not is irrelevant.

Emergency medical care received from a non-VA facilities requires authorization pursuant to 38 C.F.R. § 17.54 (2013). Smith v. Derwinski, 2 Vet. App. 378 (1992).

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 from December 27, 2010 through December 31,2011. 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, 6 Vet. App. 555 (1994).

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.

The Veteran has not asserted, nor does the record otherwise indicate, that he received prior VA authorization for the treatment he received through the CentraCare Health System from approximately December 27, 2010 through December 31, 2011. Malone v. Gober, 10 Vet. App. 539 (1997); see 38 U.S.C.A. § 1703 (West 2002 & Supp. 2010); 38 C.F.R. § 17.54.

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The Board has also considered entitlement under 38 U.S.C.A. § 1728 for entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility. However, the Veteran does not meet the threshold requirement that 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)).

Here, the Veteran is service connected for tibialis posterior tendon dysfunction of the right foot with unilateral flat foot deformity with medial arch collapse, rated as 30 percent disabling. He is not participating in a rehabilitation program. The private treatment beginning December 27, 2010 was for heart disease, stroke, and associated non-service connected medical problems. Thus, the Veteran is not entitled to reimbursement under 38 U.S.C.A. § 1728. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (2012); see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

This leaves a theory of entitlement pursuant to 38 U.S.C.A. § 1725 (The Veterans Millennium Health Care and Benefits Act). It 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(2013).

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 listed criteria are met. As relevant, criterion (0

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requires that 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);

The record shows that the Veteran had Medicare insurance coverage at the time of treatment. (See Private physical therapy records from May 2011 listing Medicare Part A and B as payer; VA Social Worker records from June 2011; September 2011 VA examination report reflecting Medicare Part A coverage since November 1, 1997; see also May 2012 private attorney statement; C.C. and J.S. May 2012 statements). The Veteran does not meet the subsection (f) criterion under 38 C.F.R. § 17.1002 and recovery pursuant to 38 U.S.C.A. § 1725 is not warranted.

The Board recognizes that the Veteran seeks reimbursement for the portion of medical expenses not covered by Medicare. However, the fact that not all of the medical expenses from this treatment were covered completely by Medicare is not relevant under the foregoing 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(g).

Since the Veteran does not meet one of the criteria for payment or reimbursement under section 1725 (i.e., lack of other insurance coverage under 38 C.F.R. § 17.1002(g)), all of which must be met to warrant reimbursement, it is not necessary to analyze whether the claim meets the additional section 1725 requirements. See 38 C.F.R. § 17.1002.

While the Board is sympathetic to the Veteran's claim and circumstances, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). The law does not allow for reimbursement of private medical expenses under 38 U.S.C.A. § 1725 when a Veteran has at least partial payment or reimbursement

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under a health-plan contract, as is the case here. There simply is no provision of law in which the Board may grant the appellant the benefits sought. Accordingly, the claim for reimbursement lacks legal merit, and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

ORDER

Payment or reimbursement of unauthorized medical expenses incurred for emergency medical services provided at a non-VA medical facility from December 27, 2010 through December 31, 2011 is denied.

J. A. MARKEY 
Veterans Law Judge, Board of Veterans' Appeals

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