Citation Nr: 1413596 Decision Date: 03/31/14 Archive Date: 04/08/14 DOCKET NO. 11-18 507A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Butler, Pennsylvania THE ISSUE Entitlement to payment or reimbursement of medical expenses incurred at Butler Memorial Hospital from May 12 through May [redacted], 2010. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran, who died in May 2010, served on active duty from July 1953 to July 1957. The appellant is his son. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Butler VAMC. A review of the record shows that the Veteran does not have a claims folder, other than that compiled by the Butler VAMC for the purposes of payment or reimbursement of medical expenses. FINDINGS OF FACT 1. The Veteran incurred medical expenses as a result of treatment at the Butler Memorial Hospital from May 12, 2010 through May [redacted], 2010; the treatment was not authorized by the VA prior to receipt. 2. During his lifetime, the Veteran did not establish service connection for any 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 May 12, 2010 through May [redacted], 2010 have not been met. 38 U.S.C.A. §§ 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 The VA's Duties to Notify and Assist Prior to consideration of the merits of an appeal, the Board generally has a duty to assist the appellant in the development of his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, such duty is not applicable in this case for several reasons. The relevant criteria set forth in Chapter 17 of Title 38 United States Code (U.S.C.) and Title 38 of the Code of Federal Regulations (C.F.R.) contain their own notice requirements. 38 C.F.R. § 17.120-133 (2013). Barger v. Principi, 16 Vet. App. 132, 138 (2002). Moreover the VA's the duties to notify and assist the appellant are not applicable when as in this case, the claim lacks legal merit. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Thus, the Board does not have a duty to assist the Veteran in the development of his claim under 38 U.S.C.A. §§ 5103, 5103A, or 38 C.F.R. § 3.159. Nevertheless, in December 2010, following the receipt of the appellant's claim, the VA notified the appellant of the criteria for establishing entitlement to the reimbursement of unauthorized medical expenses. The VA also notified him of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. The VA also offered the appellant an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis There are two basic avenues for obtaining reimbursement of medical costs for emergency treatment which was rendered at a non-VA medical facility and which was not previously authorized by VA. Under 38 U.S.C.A. § 1728 and its enabling regulation 38 C.F.R. § 17.120, VA payment or reimbursement for emergency treatment may be made to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability or those who are or will be a participants in a vocational rehabilitation program. In this case, the Veteran had no service-connected disability and was not a participant in a VA vocational rehabilitation program. Thus, he was not eligible for reimbursement of his medical expenses under 38 U.S.C.A. § 1728 and its enabling regulation 38 C.F.R. § 17.120. VA may also reimburse the veteran, the health care provider who furnished the services, or the individual who paid for the services for the reasonable value of emergency treatment in a non-VA facility under 38 U.S.C.A. § 1728; 38 C.F.R. § 17.1000 -- § 17.1008. All of the following criteria must be met: (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 that VA has an agreement with to furnish health care services for veterans 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 the nearest available appropriate level of care was at a non-VA medical center); (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 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 (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 of the denial of payment); (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 the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole, the veteran's liability to the provider; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided. 38 U.S.C. § 1725; 38 C.F.R. § 17.1002. To receive payment or reimbursement for emergency services, a claimant must file a claim within 90 days after the latest of the following: (1) The date that the veteran was discharged from the facility that furnished the emergency treatment; (2) The date of death, but only if the death occurred during transportation to a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the emergency treatment; or (3) The date the veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party. 38 C.F.R. § 17.1004(d). A review of the record shows that on May 12, 2010, the Veteran fell at home and was taken by ambulance to the Butler Memorial Hospital emergency room. He sustained a laceration of his head and several skin tears to his arms. He did not know what exactly happened and was somewhat short of breath. He was admitted to the hospital shortly after midnight, and the primary diagnoses were hypoglycemia and liver cancer. On May [redacted], 2010, he was discharged to hospice care, where he died the following day. The appellant states that the Veteran was clearly in need of emergency medical care on May 12, 1010, and that the closest facility was the Butler Memorial Hospital, a non-VA facility. He states that his father had been a participant in VA medical care and that he was in an emergency situation. He further states that when the VA began caring for his father, he had been assured that all care would be paid for by the VA. In this regard, he notes that a period of treatment at the Butler Memorial Hospital from January 28 through January 31, 2010 had authorized the payment of any and all associated provider claims. Therefore, he contends that he should be reimbursed for all expenses, including the co-pay charged to his father during his treatment from May 12 through May [redacted], 2010. By its very nature, a co-pay suggests that there was a third party available to pay or at least defray, the cost of an individual's treatment. A bill from the Butler Memorial Hospital shows that the Veteran was under Medicare and that it had been able cover part of the cost of his treatment. In his formal appeal, VA Form 9, the appellant acknowledged that Medicare paid for most of the Veteran's treatment but that he was unable to afford the associated co-payment. Therefore, based on previous assurances by the VA, he maintained that the VA was responsible. While the VA is sympathetic to the appellant's position, the law is clear. There is no legal basis which would permit him to recover emergency medical expenses when a third party insurer is present. Although the VA did reimburse his father for treatment at the Butler Memorial Hospital from January 28 through January 31, 2010, the appellant has presented no evidence to support his claim of reimbursement from May 12 through May [redacted], 2010. While he may feel that he was misinformed by the VA, he has not presented any evidence to that effect. Moreover, inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See, e.g., Shields v. Brown, 8 Vet. App. 346, 351 (1995). Conversely, erroneous advice given by a government employee cannot be used to estop the government from denying benefits. McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Payments of monetary benefits from the Federal Treasury must be authorized by statute, notwithstanding incomplete or even erroneous information provided by others, including Government employees, and regardless of extenuating circumstances or claims of fairness. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). In addition, the Supreme Court of the United States has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Thus, regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance. Id. at 385, 68 S.Ct. 1.) In sum, the appellant is ineligible for consideration under 38 U.S.C.A. § 1728 since the private medical treatment did not concern a service connected disability or program of vocational rehabilitation. Moreover, he is not eligible for consideration under 38 U.S.C.A. § 1725, as his father had insurance coverage under Medicare. The law is dispositive of the issue; and, therefore, the appeal must be denied. 38 U.S.C.A. § 7104(c)(West 2002); 38 C.F.R. § 19.5 (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In arriving at this decision, the Board does not reach any question with respect to the other criteria under 38 U.S.C.A. § 1725, nor does it reach any question as to whether the appellant's claim was timely filed. ORDER Payment or reimbursement of unauthorized medical expenses incurred for medical services provided at a non-VA medical facility from May 12, 2010 through May [redacted], 2010 is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs