Citation Nr: 1624474	
Decision Date: 06/17/16    Archive Date: 06/29/16

DOCKET NO.  15-35 258A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement of private medical expenses for services rendered from January 2, 2015, through March 23, 2015, at Institute of Pain Management PA.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel




INTRODUCTION

The Veteran served on active duty from April 1966 to March 1968.  This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision of the Gainesville, Florida, North Florida/South Georgia Department of Veterans Affairs (VA) Health System.  

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015).


FINDINGS OF FACT

1.  From January 2, 2015, through March 23, 2015, the Veteran obtained private medical treatment for chronic back pain at the Institute of Pain Management PA, in Jacksonville, Florida; prior authorization for such treatment was not given by VA, nor can it be implied.

2.  At the time of treatment, service connection had not been established for any disability; the Veteran was not shown to have a total disability, permanent in nature, resulting from a service-connected disability; and the Veteran was not participating in a rehabilitation program under 38 U.S.C. Chapter 31.  

3.  The Veteran has health coverage under Medicare Part A and B, which covered a significant portion of the expenses, which is a statutory bar for VA reimbursement.  

4.  The private medical treatment obtained by the Veteran from January 2, 2015, through March 23, 2015, did not involve circumstances in which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health.  



CONCLUSION OF LAW

The criteria for payment or reimbursement of private medical expenses for services beginning on August 30, 2012, at the Memorial Hospital Jacksonville have not been met.  38 U.S.C.A. §§ 1701, 1725 (West 2014); 38 C.F.R. §§ 17.54, 17.120, 17.1000-17.1002 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claim herein, 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The Veteran contends that payment or reimbursement is warranted for private medical expenses for services sought by him from January 2, 2015, through March 23, 2015, at Institute of Pain Management PA., Mandarin Facility in Jacksonville, Florida.  In support of his claim, he reported that he obtained prior authorization from a VA physician for private treatment for his chronic low back pain.  He also submitted a September 2015 letter from a VA physician that authorized the Veteran's treatment at the Institute of Pain Management indefinitely until further notice.

A.  38 C.F.R. § 17.54 - Prior Authorization

In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA.  See 38 U.S.C.A. § 1703(a) (West 2014); 38 C.F.R. § 17.54.  Verbal authorizations will be confirmed by written authorization within two workdays following verification of eligibility, and a letter will be forwarded to the Veteran to direct him not to make any payments to the non-VA hospital.  

In this case, VA personnel appear to have pre-authorized the Veteran to receive private treatment for his chronic back pain.  However, the direction of a VA physician can be too general to constitute sufficient prior authorization.  See Smith v. Derwinski, 2 Vet. App. 378 ("the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation.").  Although the specific regulation in Smith, 38 C.F.R. § 17.50d (a) (1991), has since been amended, it was of similar content to the current 38 C.F.R. § 17.54.  

Moreover, VA was never afforded an opportunity to discuss treatment options with either the Veteran or the non-VA facility or to determine if the treatment could be provided at a VA or federal facility over the private facility as contemplated by the regulation.  Accordingly, the Board finds that the Veteran did not receive prior authorization for treatment received from January 2, 2015, through March 23, 2015 from the Institute of Pain Management PA.  

To the degree that equitable arguments of promissory estoppel and detrimental reliance are raised by the record, the Board is bound by the law and is without authority to grant benefits on an equitable basis.  See Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress."  Smith (Edward) v. Derwinski, 2 Vet. App. 429, 432-33 (1992).  

B.  Reimbursement Claim - Without Prior Authorization

VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities.  The purpose of these amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. 

The regulatory amendments made the following revisions in accordance with the Act: (1) requiring VA to reimburse the covered costs for emergency care received at non-VA facilities for eligible veterans under §§ 1725 and 1728; (2) extending VA's payment authority for emergency treatment received at a non-VA facility until "such time as the veteran can be transferred safely to a [VA] facility or other Federal facility and such facility is capable of accepting such transfer," or until such transfer was accepted, so long as the non-VA facility "made and documented reasonable attempts to transfer the veteran to a [VA] facility or other Federal facility"; and (3) making the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the "prudent layperson" standard.  The amendments likewise affected 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008.  The effective date of these amendments was January 20, 2012.  See 76 Fed. Reg. 79067 -79072 (Dec. 21, 2011).  Accordingly, they are applicable to the Veteran's claim.

i.  38 U.S.C.A. § 1728

Reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728.  Generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions.  There must be a showing that (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i);(b) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120.  All three of these requirements must be met before payment may be authorized.  Zimick v. West, 11 Vet App. 45, 49 (1998).

At the time the Veteran sought the treatment at issue, service connection had not been established for any disability; the Veteran was not shown or alleged to have a total disability, permanent in nature, resulting from a service-connected disability; and the Veteran was not shown or alleged to have been participating in a rehabilitation program.  Accordingly, the criteria for payment under 38 U.S.C.A. § 1728 are not met, and reimbursement for medical expenses under 38 U.S.C.A. § 1728; 38 C.F.R. 17.120, must be denied.  

ii.  38 U.S.C.A. § 1725

Payment for or reimbursement of emergency services for nonservice-connected disorders in non-VA facilities may be authorized pursuant to 38 U.S.C.A. § 1725, as implemented at 38 C.F.R. § 17.1002.  To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: 

(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. 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). 

See 38 C.F.R. § 17.1002. 

As noted above, one key requirement is that a veteran can have no entitlement to care or services under a health-plan contract, in whole or in part, for the emergency treatment.  See 38 U.S.C.A. § 1725(b)(3)(B), 38 C.F.R. § 17.1002(f).  A "health-plan contract" is defined to include an insurance program described in section 1811 of the Social Security Act (42 U.S.C.A. § 1395c refers to Medicare Part A) or established by section 1831 of that Act (42 U.S.C.A. § 1395j refers to Medicare Part B).  See 38 U.S.C.A. § 1725(f)(2)(B).  

Evidence of record clearly indicates that Medicare A and B have been used to cover the bulk of the Veteran's expenses since January 1, 2006.  Since the Veteran was covered under Medicare at the time of his private treatment, he is barred from receiving reimbursement of his non-VA medical expenses through VA.  38 U.S.C.A. § 1725 (3)(B).

Finally, the evidence of record does not show, and the Veteran does not allege, that the private medical services sought by him from January 2, 2015, through March 23, 2015, involved circumstances in which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  VA treatment records indicate that the Veteran sought private treatment for chronic low back pain management. 

Accordingly, the criteria for payment or reimbursement for private medical expenses from January 2, 2015, through March 23, 2015, have not been met.  As the law requires that all of the conditions of 38 C.F.R. § 17.1002 be satisfied in order for payment or reimbursement of unauthorized medical expenses, such payment is not warranted in this case.  38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1002.  

In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable in this case.  The Board is also without authority to grant benefits simply because it might perceive the result to be equitable.  38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994).  The Board further observes that no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.  Smith v. Derwinski, 2 Vet. App. 429 (1992); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).  


ORDER

Payment or reimbursement of unauthorized medical expenses incurred by the Veteran from January 2, 2015, through March 23, 2015, at the Institute of Pain Management PA, in Jacksonville, Florida, is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs