Citation Nr: 1443593	
Decision Date: 09/30/14    Archive Date: 10/06/14

DOCKET NO.  12-07 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) 
North Florida/South Georgia Veterans Health System in Gainesville, Florida


THE ISSUE

Entitlement to payment of unauthorized medical expenses incurred by the Veteran for treatment at Flagler Hospital from June 21, 2011, to July 1, 2011.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran had active service from March 1968 to March 1970.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision of the North Florida/South Georgia Veterans Health System which denied payment unauthorized medical expenses incurred by the Veteran for treatment at Flagler Hospital from June 21, 2011, to July 1, 2011.


FINDINGS OF FACT

1. At the time of the Veteran's treatment, service connection was in effect for residual of shell fragment wound, left shoulder and left elbow. 

2. The private medical treatment rendered to the Veteran, by Flagler Hospital, was not authorized by VA.

3. At the time of the treatment at Flagler Hospital, the Veteran had United Healthcare insurance.  


CONCLUSION OF LAW

The criteria for entitlement to payment of unauthorized medical expenses for medical treatment received by the Veteran at Flagler Hospital from June 21, 2011, to July 1, 2011, have not been met.  38 U.S.C.A. §§ 1703, 1725 (West 2002); 38 C.F.R. §§ 3.102, 17.52-54, 17.120, 17.121, 17.1000-1002 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has specific duties to notify and assist claimants in the development of claims.  Because this claim is governed by the provisions of Chapter 17 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002).  Notwithstanding the fact that the VCAA is not controlling in this matter, the Board notes that the appellant was sent a letter in February 2012 which included notice of the VCAA, there is no indication of any outstanding evidence, and this case does not turn on a medical question for which an opinion would be necessary.  Thus, VA's duties to notify and assist were met.

II. Factual Background and Analysis

The Veteran contends he should be entitled to payment of unauthorized medical expenses he incurred for treatment at Flagler Hospital from June 21, 2011, to July 1, 2011.  The record reflects that on June 21, 2011, the Veteran presented to the Flagler Hospital emergency room with complaints of weakness, and the initial impression was cerebral infarction.  Thereafter, he was hospitalized and his discharge diagnoses on July 1, 2011, were cerebral artery occlusion, cerebral edema, hypertension, and atrial fibrillation.  

Under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are incapable of furnishing economical hospital care or medical services because of geographic inaccessibility or are incapable of furnishing care or services required, VA may contract with or authorize non-VA facilities for care.  38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a).  When, as here, a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.  Here, the Veteran is service-connected for a scar of the left elbow and shoulder; thus, the medical treatment in June and July 2011 was for a disability not service-connected, and his claim must be analyzed pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Act). 

According to 38 U.S.C.A. § 1725, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met.  38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008.  To be eligible for payment or reimbursement under this alternative statute, the treatment must satisfy all of the conditions set forth in the regulatory provisions in 38 C.F.R. § 17.1002, as follows:  (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; 

(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) 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 transferred to a VA or other Federal facility; 

(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; 

(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.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. 

The Board notes that the criteria under 38 C.F.R. §§ 17.1002 must all be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991). 

Review of the record shows that the Veteran has medical insurance with United Healthcare.  Thus, the Veteran did not meet one of the nine criteria required for payment or reimbursement of medical expenses under 38 U.S.C.A. § 1725 of the Veterans Millennium Health Care and Benefits Act.  Since all nine criteria must be satisfied in order to establish eligibility for payment or reimbursement under this authority, the failure to satisfy one provision means that the appellant is not eligible for payment of the unauthorized medical expenses the Veteran incurred at Flagler Hospital from June 21, 2011, to July 1, 2011.  

Given the foregoing, there is no need to discuss whether he meets any of the other criteria found at 38 C.F.R. § 17.1002.  As such, the Board finds no legal basis on which the claim could be granted.  In a case where the law and not the evidence is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to payment of unauthorized medical expenses incurred by the Veteran at Flagler Hospital from June 21, 2011, to July 1, 2011, is denied.


____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs