Citation Nr: 1400424 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 11-05 302A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Madison, Wisconsin THE ISSUE Entitlement to reimbursement or payment of private medical care expenses incurred on August 6, 2010. ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision by Department of Veterans Affairs (VA) Medical Center in Madison, Wisconsin. In October 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran received emergency medical care at Richland Hospital on August 6, 2010. 2. The Veteran has coverage under a health-plan contract that has paid part of the fees incurred for the emergency treatment. CONCLUSION OF LAW The criteria for reimbursement or payment of private medical care expenses incurred on August 6, 2010 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1001, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). However, the Board notes that the Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the present case, the facts are not in dispute. As discussed below, resolution of the Veteran's appeal is wholly dependent on interpretation of the relevant VA statutes and regulations, and their application to the facts already of record. In this particular case, the facts that serve as the basis of the denial of the claim are incontrovertible. Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claim, any deficiencies of VCAA notice or assistance, if they exist are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Moreover, because the claim is being denied as a matter of law, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). II. Analysis On August 6, 2010, the Veteran sought emergency treatment at Richland Hospital for severe right abdominal pain. Acute appendicitis was diagnosed, and the Veteran subsequently underwent surgery to remove his appendix. The record reflects that efforts to contact VA prior to the surgery yielded no results as the emergency room physician at the Madison VA Medical Center (VAMC) was reportedly unavailable. According to a letter from Dr. SJD at Richland Hospital, no response was received from the VA Medical Center until five hours after the initial contact, by which time the Veteran's surgery had been completed. The Veteran requests reimbursement for his unpaid medical expenses. The Veteran is not service-connected for any disability. Under the law, VA may provide payment or reimbursement for the reasonable value of emergency treatment furnished to a veteran for non-service-connected conditions in a non-VA facility under the following circumstances: (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 them 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 the 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 or provider 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. 1728 for the emergency treatment provided (38 U.S.C. 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 (2013); see also Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999); 38 U.S.C.A. § 1725. Initially, the Board observes that whether the Veteran was in need of emergency treatment is not at issue. However, it is plain from the record that the majority of the Veteran's medical expenses were paid under a private health care contract, which precludes reimbursement of any of the medical expenses by VA. The Veteran is requesting reimbursement of the co-pays for which he is responsible under that contract. The Veteran argues that, had VA responded promptly to his request for transfer and treatment at the VAMC in Madison, his private insurance would not have been involved in covering his expenses, and therefore, there would be no co-pays due. However, for all intents and purposes, VA's lack of prompt response to Richland Hospital's inquiries merely rendered the VA facilities not feasibly available, which is just one requirement for reimbursement of private medical care expenses by VA. There is no legal basis for distinguishing unavailability of VA facilities due to issues such as the Veteran's medical condition precluding transfer or the VA facility not having beds available and unavailability due to VA not responding to a transfer inquiry prior to the need for further treatment. Further, the record does not establish that but for VA's lack of prompt response to the transfer inquiry, the VAMC in Madison was feasibly available. Accordingly, the Board determines that the Veteran has met the requirements of needing emergent care on August 6, 2010 and that a VA facility was not feasibly available at that time. However, the payment under a health care contract of part of the private medical expenses he incurred at Richland Hospital on that date precludes reimbursement of the remaining medical expenses for which the Veteran is liable. Accordingly, the Veteran's claim is denied. ORDER Entitlement to reimbursement or payment of private medical care expenses incurred on August 6, 2010 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs