Citation Nr: 1611745	
Decision Date: 03/23/16    Archive Date: 03/29/16

DOCKET NO.  14-23 725	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Medical Center in VISN 20 Network Payment Center in Portland, Oregon



THE ISSUE

Entitlement to payment of unauthorized medical expenses incurred in connection with treatment provided in December 2013 at Legacy Meridian Park Hospital in Tualatin, Oregon.



ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel






INTRODUCTION

The Veteran served on active duty from October 1977 to September 1981.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2014 decisions of the Department of Veterans Affairs (VA) VISN 20 Northwest Network Payment Center in Portland, Oregon.


FINDINGS OF FACT

1.  The Veteran received emergency treatment at Legacy Meridian Park Hospital from December 7, 2013 to December 11, 2013.  The care was not authorized in advance by VA.

2.  At the time of treatment, the Veteran was not in receipt of service connection for any disability. 

3.  At the time of treatment, the Veteran had not received VA medical services within the 24-month period preceding the treatment.


CONCLUSION OF LAW

The criteria for establishing payment or reimbursement for unauthorized medical expenses incurred as a result of treatment provided at Legacy Meridian Park Hospital from December 7, 2013 to December 11, 2013, have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.1000-17.1002, 17.1004 (2015).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

 VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

The provisions of Chapter 17 of 30 U.S.C. and 38 C.F.R. contain their own notice requirements.  Regulations at 38 C.F.R. §§ 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses.  According to 38 C.F.R. § 17.124, the claimant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim."  When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38.  38 C.F.R. § 17.132. 

Appropriate notice was provided to the Veteran in March 2014, attached to each initial denial.  The Veteran's claim was subsequently readjudicate in June 2014, which cured any timing deficit. 

In this case, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim.

II.  Legal Framework

Congress has authorized the payment or reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions: 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  Section 1728(a) is not applicable to the Veteran's claim because the evidence does not reflect that the expenses were incurred for a service-connected disability, a non-service-connected disability associated with and held to be aggravating a service-connected disability, or that the Veteran has a total disability permanent in nature from a service-connected disability.  The record shows that the Veteran has no service connected disabilities.  Thus, the Board will focus on § 1725.

The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997).  However, under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008, VA may reimburse claimants for unauthorized medical expenses for emergency services provided for nonservice-connected conditions in non-VA facilities.  To be eligible for reimbursement under this authority the claimant 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 (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 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 that 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.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; 

(e)  The Veteran is financially liable to the provider of that 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 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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability).  38 C.F.R. § 17.1002. 

The Board notes that 38 U.S.C.A. § 1725 was amended in 2010.  See Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010) (codified as amended at 38 U.S.C.A. § 1725).  The February 2010 statutory changes modified the provisions of § 1725(b)(3)(C) pertaining to contractual or legal recourse against a third party so as to allow for reimbursement in situations where a portion of the cost of the care is covered.  See Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137 (2010) (codified as amended at 38 U.S.C. § 1725). 

In February 2010, the Veterans Health Administration (VHA) issued Fact Sheet 16-13 in response to the statutory amendments.  This Fact Sheet noted that the February 2010 Veterans' Emergency Care Fairness Act (P.L. 111-137) amended 38 U.S.C.A. § 1725  by changing the definition of personal liability to remove the disqualifying factor of payment in part by a third party payer.  VHA clarified, however, that the amendments did not change the requirement that a Veteran have no entitlement to care and services under a health-plan contract in order for VA to pay for non-VA emergency treatment.  VHA acknowledged that although a health-plan contract was included in the statutory definition of "third-party," under 38 U.S.C.A. § 1725(b)(3)(B), a Veteran is ineligible for VA payment of non-VA emergency treatment where the Veteran has coverage under a health plan, including Medicare, Medicaid, and Worker's Compensation.

The criteria above are conjunctive, not disjunctive; accordingly, all eight criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met).

III.  Analysis

The Veteran seeks payment for unauthorized emergency medical services rendered in December 2013 at Legacy Meridian Park Hospital.  For the reasons that follow, the Board finds that this claim must be denied.

The record shows that the night of December 7, 2013, the Veteran experienced worsening heart palpitations and difficulty breathing and, therefore, he took an ambulance to the nearest hospital, Legacy Meridian Park Hospital.  He was admitted to the emergency room with diagnoses of arterial fibrillation and non-ST segment elevation myocardial infarction.  He remained hospitalized through December 11, 2013.  During the hospitalization, multiple attempts were made to transfer the Veteran to the Portland VA, however VA denied the transfer requests because no beds were available for acute care.  There is no showing or contention that this non-VA hospital treatment was authorized in advance.

As noted above, payment or reimbursement of such expenses is provided for by 38 U.S.C.A. §§ 1725 and 1728.  The applicability of § 1728 is limited to certain instances in which a veteran has a service-connected disability; however, in this case, the Veteran does not have a service-connected disability and therefore § 1728 is not applicable and the claim must be evaluated pursuant to § 1725.  In order to be eligible for payment pursuant to § 1725, a claimant must meet all eight criteria.  See also 38 C.F.R. § 17.1002.

The undisputed evidence of record shows that the Veteran had not received VA care under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the beginning of emergency treatment rendered on December 7, 2013.  While he was enrolled in the VA Portland health care system and on the waitlist for an appointment, these facts do not satisfy the criteria of 38 U.S.C.A. § 1725(b) and 38 C.F.R. § 17.1002(d).  Eligibility requires the Veteran to have actually received the care.  

Specifically, a December 2, 2013 notation from the Portland VAMC reflects that the Veteran requested to be placed on the waitlist for the West Linn facility.  He was accepted and placed on the waitlist the next day.  A December 8, 2013 notation reflects that Legacy Meridian Park Hospital contacted the Portland VAMC and was told that the Veteran had not yet been seen by a VA provider at the Portland VAMC or elsewhere.  Moreover, because the requirements of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 are conjunctive, it is not necessary to analyze whether the other requirements for eligibility are met.  A December 12, 2013 letter from the West Linn facility to the Veteran reflects that he had not yet seen a VA provider.  As the Veteran had not seen a provider or received VA care, the Board is unable to grant payment to the Veteran for his medical claims.  
The Board is certainly sympathetic to the Veteran's situation.  Nevertheless, the law is dispositive; therefore, the claim must be denied based on the lack of legal entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). 


ORDER

Entitlement to payment of unauthorized medical expenses incurred in connection with treatment provided in December 2013 at Legacy Meridian Park Hospital in Tualatin, Oregon, is denied.







____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs