Citation Nr: 1409554 Decision Date: 03/06/14 Archive Date: 03/18/14 DOCKET NO. 11-31 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Buffalo, New York THE ISSUE Entitlement to payment or reimbursement for medical services provided at Rochester General Hospital on August 21, 2011. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant's specific dates of service are not reported in electronic records and his VHA medical appeal claims file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision from the Department of Veterans Affairs Medical Center (VAMC) in Buffalo, New York. FINDING OF FACT 1. The medical treatment rendered to the Veteran at the private medical facility was not for the purpose of treating a service-connected disability, a disability for which the Veteran was discharged or released from service, or a nonservice-connected disability aggravating a service-connected disability. Furthermore, at the relevant time, the Veteran was not deemed to be totally disabled due to service-connected disability and was not a participant of a vocational rehabilitation program. 2. The private medical expenses were not preauthorized by VA 3. The appellant is a Medicare recipient and thus has coverage under a health-plan for payment or reimbursement for the emergency treatment provided by Rochester General Hospital. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for medical services provided at Rochester General Hospital on August 21, 2011 have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.120, 17.1000-1008 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The United States Court of Appeals for Veterans Claims has held that when the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534, 542 (2002). Because the law and not the evidence is dispositive in the instant case, additional factual development would have no bearing in the ultimate outcome. Accordingly, VCAA can have no effect on this appeal. See Manson v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim."). Therefore, the Board finds that no further action is necessary under the VCAA for this claim. Laws and Regulations A claimant is entitled to reimbursement/payment for medical treatment where VA authorizes payment for that treatment in advance. 38 U.S.C.A. § 1703; 38 C.F.R. §§ 17.52, 17.53, 17.54. In the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran or by others on his behalf is dispatched to the VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. When a veteran receives treatment at a non-VA facility without prior authorization, a proper claimant may still be entitlement to reimbursement for the cost of such care if certain requirements under 38 U.S.C.A. § 1725 or § 1728 are met. The applicable regulation provides in pertinent part that the VA shall reimburse a Veteran who is an active VA health-care participant that is personally liable for emergency treatment furnished in a non-VA facility. 38 U.S.C.A. § 1725(a). An active VA health-care participant is a veteran who is enrolled in the health care system; received care within the 24-month period preceding the furnishing of such emergency treatment; is personally liable to the provider of emergency treatment; has no entitlement to care or services under a health-plan contract; has no other contractual or legal recourse against third party that would, in whole, extinguish such liability to the provider; and is not eligible for reimbursement for medical care or services under 38 U.S.C. § 1728. 38 U.S.C.A. § 1725(b). The term emergency treatment means medical care or services furnished when VA or other Federal facilities are not feasibility available and an attempt to use them beforehand would not be reasonable; when such care or service are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health and until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer. 38 U.S.C.A. § 1725(f). Reimbursement of medical expenses pursuant to 38 U.S.C.A. § 1728 apply to service-connected disabilities; non service-connected disabilities associated with and held to be aggravating a service-connected disability; any disability if the veteran has a total disability permanent in nature from a service-connected disability; or any illness, injury or dental condition of a veteran who is a participant in a vocational rehabilitation program determined to be medically necessary to make possible the veteran's entrance into course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury or dental condition. 38 U.S.C.A. § 1728. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-17 .1002 (the implementing regulations). § 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999), which provides general authority for the reimbursement of non-VA emergency treatment. Eligibility for reimbursement under this Act requires satisfaction of all of the following: (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 would 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; (d) 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 r 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment; (g) 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, (h) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002 . 76 Fed. Reg. 79 ,067, 79,071 (Dec. 21, 2011) (to be codified at 38 C.F.R. § 17.1002(a)-(h) ). During the pendency of the appeal, certain regulatory amendments went into effect on January 20, 2012, which removed the following requirement under 38 C.F.R. §17.1002 : 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). Hence, prior to the January 2012 regulatory amendments, there were nine criteria listed under 38 C.F.R. §17.1002(a)-(i) (2011). Prior to the Veteran's claim, on October 10, 2008, S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President. This bill makes various changes to veterans' mental health care and also addresses other health care related matters. Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 1728 to make mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an "eligible" veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). Under the Millennium Health Care Act, the VA will be the payer of last resort for service members who usually get their care at a VA medical center. As noted above, one of the requirements that must be met is that the veteran must not have entitlement to care or services under a health plan contract. 38 U.S.C.A. § 1725(b)(3)(B) (West 2002); 38 C.F.R. § 17.1002(g) (2012). A health plan contract is specifically defined, by the law as well as the implementing regulation, to include 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 ). 38 U.S.C.A. § 1725(f)(2)(B) (West 2002); 38 C.F.R. § 17.1001(a)(2) (2012). 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(d) payment under the Millennium Act if the veteran has coverage under either Medicare Part A or Medicare Part B. Of note is that 38 U.S.C.A. § 1725 was amended effective February 1, 2010. See Pub. L. No. 111-137, § 1(a),(b), 123 State. 3495 (2010). This change, in essence, addresses the following: Veterans may receive payment or reimbursement through VA for the balance of medical expenses that remains when a third party payer would only extinguish part of a veteran's liability. Pub. L. 111-137, 123 Stat. 3495 (2010) (codified at 38 U.S.C.A. § 1725(c)(4) ). This amendment is effective February 1, 2010, and shall apply with respect to emergency treatment furnished on or after such date. Id. at (c)(1). 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) (2012). 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.'" Additionally, VA may reimburse unauthorized medical expenses incurred in non-VA facilities under 38 U.S.C.A. § 1728(a) for veterans with service-connected disabilities. However, such law does not apply in this case as discussed in detail below. The treatment at issue was for a nonservice-connected disability, which was not related to or aggravating a service-connected disability. The evidence also does not show that Veteran has a total disability permanent in nature or that he participated in a vocational rehabilitation program under 38 U.S.C. ch . 31. Therefore, the provisions of 38 U.S.C.A. § 1728 do not apply. 38 U.S.C.A. § 1728(a) (2012). Factual Background An August 21, 2011 VA treatment record shows complaints of facial swelling, abdominal pain and dark urine with minimal output. Concerned, his wife stated her intention to take him to Rochester General Hospital emergency room (ER). The report provided, "Advised to go to ER now may have angioedema.... Take meds with him to local ER." A printout notes that the appellant was not service connected for any disabilities and that he was a recipient of Medicare parts A and B. A health insurance claim form completed by Rochester General Hospital radiology notes a total charge of $18.00 for services rendered in August 21, 2011. By letter dated in October 2011, the VAMC denied reimbursement as the appellant has other primary insurance. In a notice of disagreement received in October 2011, the appellant asserted that his treatment should be covered by the VA because when he had called VA Telecare, a VA nurse "sent me to the hospital right away, due to a sever[e] reaction" from medication prescribed by a VA doctor. He noted that the VA nurse feared that his throat would close up. By letter dated in October 2011, the VAMC notified the appellant that his claim was still denied since treatment was not for a service-connected disability and since he was not physically seen and sent directly from a VA clinic. The VAMC noted that telephone triage is for medical advice and does not constitute authorization for payment. The VAMC further noted that he had Medicare, and that the VA is prohibited by law to pay insurance balances. Since his claim did not meet the eligibility criteria, the claim was denied. In an October 2011 statement of the case, the VAMC stated that a veteran must have no coverage under a health plan that would pay in whole or part for emergency treatment. The VAMC noted that the appellant's treatment was not for a service-connected condition, he was not seen and sent by the VA and the appellant has another recourse for payment (insurance paid). The VAMC concluded by stating that the VA cannot by law pay insurance balances and denied the claim. On substantive appeal received in November 2011, the appellant noted that he and his wife were in receipt of Social Security Administration (SSA) benefits and that he is responsible for a $1400.00 medical bill from Rochester General Hospital. He concluded by stating: "Nothing has changed for the veteran, income is the same, so why now does the veteran have to pay for this debt." Analysis Entitlement to payment or reimbursement for medical services provided at Rochester General Hospital on August 21, 2011 is not warranted. The Board acknowledges that most of the criteria for reimbursement under 38 U.S.C.A. § 1725 are met. Here, the appellant was treated at a non-VA medical facility-Rochester General Hospital. It is assumed (since the VA treatment record notes the intentions of the appellant's wife) that the appellant was treated at the ER. The claim for payment/reimbursement is for a condition of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for symptoms of angioedema would have been hazardous to life or health. The Buffalo VAMC advised the appellant to seek treatment at a local ER; and thus the nature of his treatment made it necessary to use non-VA facilities. At the time of the emergency treatment at Rochester General Hospital, the appellant was enrolled in the VA health care system and had received medical services earlier that day. The appellant is financially liable for $18.00 for treatment received from Rochester General Hospital. The angioedema was not caused by an accident or work-related injury. The appellant is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided as he was not treated for a service-connected disability or a disability eligible for treatment pursuant to 38 U.S.C.A. § 1728(a)(2)-(4). The Board acknowledges the appellant's substantive appeal in which he states that he and his wife are in receipt of SSA benefits and since his income is the same, he did not understand why he was to pay for treatment received at Rochester General Hospital. He further stated that he is responsible for a $1400.00 medical bill from Rochester General Hospital. However, Medicare covered a portion of his medical bills, as the appellant is left with the balance not covered by Medicare. Accordingly, payment/reimbursement under 38 U.S.C.A. § 1725 may not be made. The Board further acknowledges the appellant's assertion that the VA should cover his cost since a VA nurse sent him to the hospital due to an allergic reaction from medication prescribed by a VA doctor. It is unclear if the appellant is asserting that there was preauthorization from the VA to seek non-VA treatment. However, advice by the nurse in the ER to seek treatment at a non-VA facility is not the type of authorization contemplated in the regulation; rather, specific formalities must be complied with. Smith v. Derwinski, 2 Vet. App. 378 (1992). It appears that the appellant is also asserting that he would not have sought private treatment but for the VA doctor's prescription, which caused an allergic reaction and necessitated the need to seek treatment at Rochester General Hospital. However, this is not the criteria that qualifies an appellant for reimbursement under 38 U.S.C.A. § 1725. Based on the evidence of record, entitlement to payment or reimbursement for medical services provided at Rochester General Hospital on August 21, 2011 is not warranted. ORDER Entitlement to payment or reimbursement for medical services provided at Rochester General Hospital on August 21, 2011 is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs