Citation Nr: 1552844	
Decision Date: 12/17/15    Archive Date: 12/23/15

DOCKET NO.  15-10 153A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center 
North Florida/South Georgia Veterans Health System 
In Gainesville, Florida



THE ISSUE

Entitlement to payment or reimbursement for medical services provided by Capital Regional Medical Center from December 29, 2014 to December 31, 2014.  



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

J. Connolly, Counsel

INTRODUCTION

The Veteran served on active duty from October 1943 to February 1946.

This case is before the Board of Veterans' Appeals (Board) on appeal from January 2015 decisions by the Department of Veterans Affairs Medical Center (VAMC) North Florida/South Georgia Veterans Health System in Gainesville, Florida.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran received private in-patient medical care by Capital Regional Medical Center from December 29, 2014 to December 31, 2014.

2.  The medical care that the Veteran received was not authorized by VA. 

3.  The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728 as he was treated for nonservice-connected disability.

4.  At the time of the medical treatment at Capital Regional Medical Center from December 29, 2014 to December 31, 2014, the Veteran had coverage under a health-plan contract (Medicare) for payment or reimbursement of expenses incurred secondary to such care.


CONCLUSION OF LAW

The criteria for payment or reimbursement for medical services provided by Capital Regional Medical Center from December 29, 2014 to December 31, 2014, pursuant to the Veterans Millennium Health Care and Benefits Act have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.52, 17.120, 17.121, 17.1000-17.1008 (2014). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  However, because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations may not be applicable to such claims.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004).  Notwithstanding, the agency of original jurisdiction did furnish the Veteran with a VCAA compliant letter in March 2015.  Moreover, the Board has reviewed the case for purposes of ascertaining whether the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses.  The Board concludes from that review that the requirements for the fair development of the appeal have been met in this case, particularly given the reason for the denial which is undisputed.

Reimbursement

A review of the documentary record reflects that the Veteran was admitted to Capital Regional Medical Center from December 29, 2014 to December 31, 2014 for an exacerbation of chronic obstructive pulmonary disease (COPD).  The Veteran explained that he realizes that his Medicare will serve as the primary payer, but would like VA to be the secondary payer.  He asserts that VA has previously paid for services at Capital Regional Medical Center.  The Board notes at this juncture that only the services by Capital Regional Medical Center from December 29, 2014 to December 31, 2014 are for consideration by the Board at this time.  The Board also notes that COPD is not a service-connected disability.

The Board notes that pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill), VA denied payment for the medical services because the Veteran had other health care coverage.  He had Medicare Part A and Part B, as shown in documentation of record.

The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556.  A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date.  See 66 Fed. Reg. 36,467 (2001).  In this case, the service rendered occurred after the effective date of the Millennium Bill Act.

In this regard, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department 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.  See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-1008.  To be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, the Veteran has to satisfy all of the following conditions: 

(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 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; 

(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 

(i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 

See 38 C.F.R. § 17.1002. 

This regulation was revised, effective January 20, 2012, to remove the requirement of 38 C.F.R. § 17.1002(d).  See 76 Fed. Reg. 79,067 - 79,072 (Dec. 21, 2011). Moreover, there was substantial revision to 38 C.F.R.§ 17.1005 which redefined the time period under which a medical "emergency" warranting reimbursement would end, as well as those limited circumstances under which non-emergent treatment would still be retroactively authorized (i.e., where documented that VA treatment was not otherwise possible).

The Veteran seeks payment or reimbursement for emergency services rendered for a nonservice-connected condition in a non-VA facility, specifically, for emergency services provided by Capital Regional Medical Center from December 29, 2014 to December 31, 2014, under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1002. 

The RO denied this claim on the basis that the Veteran was not financially liable to the provider of emergency treatment for that treatment because the Veteran had coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment, per subsection (g).

The term "health-plan contract" includes an insurance program described in section 1811 of the Social Security Act (42 U.S.C.A. § 1395(c)) or established by section 1831 of that Act (42 U.S.C.A. § 1395(j)).  38 U.S.C.A. § 1725(f)(2)(B); 38 C.F.R. § 17.1001(a)(2).  42 U.S.C.A. § 1395c refers to Medicare Part A and 42 U.S.C.A. § 1395j refers to Medicare Part B. 

In other words, the law and regulations specifically exclude payment under the Millennium Act if an appellant has coverage under either Medicare Part A or Medicare Part B.  In this case, as noted, the record shows that the Veteran has Medicare Parts A and B.

With respect to this issue, 38 U.S.C.A. § 1725 was amended in February 2010.  See Pub. L. No. 111-137, § 1(a), (b), 123 Stat 3495] (2010).  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 provisions of 38 C.F.R. § 17.1002 provide 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).  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, "[i]n 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."

As the Veteran had coverage under a "health-plan contract," Medicare Parts A and B, he is not entitled to coverage under the provisions of 38 U.S.C.A. § 1725 and its corresponding regulations.

As the Board finds that the Veteran does not meet one of the criteria of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002, reimbursement for any amount is prohibited, and the Board need not discuss further whether the Veteran meets any of the other criteria as the failure to meet one of them precludes payment.  Accordingly, the claim must be denied.


ORDER


Entitlement to payment or reimbursement for medical services provided by Capital Regional Medical Center from December 29, 2014 to December 31, 2014, is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs