Citation Nr: 1611296 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 12-18 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUES 1. Entitlement to reimbursement of medical expenses incurred at a private hospital on November 20, 2013. 2. Entitlement to reimbursement of medical expenses incurred at a private hospital from January 16, 2014 through January 17, 2014. (The issues of entitlement to service connection for rhinitis, right ankle strain, and left ankle strain are addressed in a separate decision.) REPRESENTATION Veteran represented by: Stacey P. Clark, Attorney ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to January 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2014 decisions by the Department of Veterans Affairs (VA) Medical Center (RO) in Gainesville, Florida. FINDING OF FACT The Veteran filed claims for reimbursement of medical expenses incurred at a private hospital on November 20, 2013 and from January 16, 2014 through January 17, 2014 on May 6, 2014, more than 90 days after the end of treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital on November 20, 2013 have not been met. 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. § 17.1004 (2015). 2. The criteria for entitlement to reimbursement of medical expenses incurred at a private hospital from January 16, 2014 through January 17, 2014 have not been met. 38 U.S.C.A. § 1725 (West 2014); 38 C.F.R. § 17.1004 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, the Court of Appeals for Veterans Claims 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 claims are incontrovertible. Thus, as no reasonable possibility exists that any further factual development would assist in substantiating the claims, 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 claims). Moreover, because the claims are 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 The Veteran is seeking reimbursement for medical expenses incurred at a private hospital on November 20, 2013 and from January 16, 2014 through January 17, 2014. The record reveals that his treatment was approved by VA, but his claims were denied as untimely filed. VA is authorized to reimburse veterans for emergency medical treatment under 38 U.S.C. § 1725 and 38 U.S.C. § 1728. To be eligible for reimbursement under 38 U.S.C. § 1728, payment or reimbursement is available only where (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program and (ii) is medically determined to have been in need of care or treatment; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120 (2015). The Veteran is service-connected for prostatitis, evaluated as 0 percent disabling. He has no other service-connected disabilities and was not in receipt of total disability due to individual unemployability when he was receiving treatment. The first treatment was for hyperglycemia, and the second hospitalization was for slurred speech and acute kidney injury. Thus, neither period of hospital treatment was associated with his service-connected disability. There is also no evidence to demonstrate that the Veteran was participating in a VA vocational rehabilitation program at the time of his treatments. Consequently, the provisions for reimbursement under 38 U.S.C.A. § 1728 (West 2014) do not apply, and any reimbursement must be afforded pursuant to 38 U.S.C.A. § 1725. For reimbursement under 38 U.S.C.A. § 1725, there is a threshold requirement that the claim must be filed within 90 days after the latest of the following: (1) July 19, 2001; (2) the date that the Veteran was discharged from the facility that furnished the emergency treatment; (3) (not applicable here) the date of death in specified circumstances; or (4) the date the Veteran finally exhausted, without success, action to obtain payment from a third party. See 38 C.F.R. § 17.1004(d)(1), (2), (3), (4) (2015). An exception to this rule allows for retroactive reimbursement of expenses incurred from July 19, 2001 to more than 90 days prior to May 21, 2012 as long as the claim was filed within a year of May 21, 2012. 38 C.F.R. § 17.1004(f) (2015). In this case, the treatment occurred in November 2013 and January 2014. Consequently, as there is no evidence that the Veteran was attempting to obtain payment from a third party, he was required by law to file his claims for reimbursement within 90 days after the end of his treatment. Ninety days from the November 2013 treatment ended in February 2014, and 90 days from the January 2014 treatment ended in April 2014. As the Veteran's claims were received in May 2014, after the 90 day periods had passed, his claims must be denied as a matter of law. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the claims of entitlement to reimbursement for private medical expenses. The Board is sympathetic to the Veteran's argument that he did not know he had a deadline to file his claims, but the regulations are clearly published and available for public review, and there is no evidence showing that the Veteran could not have known that he had only 90 days to file the claims. Consequently, the claims are denied. ORDER Entitlement to reimbursement of medical expenses incurred at a private hospital on November 20, 2013 is denied. Entitlement to reimbursement of medical expenses incurred at a private hospital from January 16, 2014 through January 17, 2014 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs