Citation Nr: 1800785	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  17-36 028A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to payment or reimbursement for unauthorized private medical expenses incurred at Shands Jacksonville Hospital from May 9, 2016 to May 21, 2016.  


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from October 1960 to July 1965.

This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017).  38 U.S.C. § 7107 (a)(2) (2012).


FINDINGS OF FACT

1.  The Veteran received private medical expenses incurred at Shands Jacksonville Hospital from May 9, 2016 to May 21, 2016.

2.  A claim for reimbursement of the private medical services was submitted in excess of 90 days after the services were rendered. 


CONCLUSION OF LAW

The requirements for reimbursement for unauthorized private medical expenses incurred at Shands Jacksonville Hospital from May 9, 2016 to May 21, 2016 are not met.  38 U.S.C. § 1725 (2012); 38 C.F.R. §§ 17.1002, 17.1004 (2017).


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.  38 U.S.C. §§ 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. § 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). 

Reimbursement

Under 38 U.S.C. § 1725 (2012), VA is authorized to reimburse eligible veterans for the reasonable value of emergency treatment furnished in a non-Department facility.  To be eligible, a veteran must be an active Department health-care participant who is personally liable for the emergency treatment furnished. In cases where reimbursement is warranted, payment may be made directly to the hospital or other health care provider that furnished the treatment, or to the person or organization that paid for such treatment on behalf of the Veteran.   

VA may provide payment or reimbursement for the reasonable value of emergency treatment furnished to a veteran for non-service-connected conditions in a non-VA facility under the following circumstances: 

(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) 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 (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); (but see Staab v. McDonald, 28 Vet. App. 50 (2016).

(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. 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 (2017); see also Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999); 38 U.S.C. § 1725 (2017).

A claim for payment or reimbursement under 38 U.S.C. § 1725 (2012) must be filed within 90 days after the latest of the following: July 19, 2001; the date the Veteran was discharged from the facility that furnished emergency treatment; the date of death, but only if the death occurred during transportation to the facility for emergency treatment, or if the death occurred during the stay in the facility that included the provision of emergency treatment; or the Veteran finally exhausted, without success, action to obtain payment or reimbursement for the treatment from a third party.  38 C.F.R. § 17.1004 (d)(1)-(4).

The Secretary recently amended 38 C.F.R. § 17.1004 to codify the situations where VA would provide retroactive reimbursement under the terms of amended 38 U.S.C. § 1725.  See Payment or Reimbursement for Emergency Services for Nonservice-Connected Conditions in Non-VA Facilities, 77 Fed. Reg. 23,615 (Apr. 20, 2012) ("We interpret [the 2010 Act] provision to allow VA, through regulation, to provide retroactive reimbursement, and we are implementing this authority in new § 17.1004(f)"). 

Significantly, 38 C.F.R. § 17.1004 (f) states that "Notwithstanding paragraph (d) of this section, VA will provide retroactive payment or reimbursement for emergency treatment received by the Veteran on or after July 19, 2001, but more than 90 days before May 21, 2012, if the claimant files a claim for reimbursement no later than 1 year after May 21, 2012."  38 C.F.R. § 17.1004 (f) (2014) (emphasis added).  Looking to the plain language of this regulation, it appears that the provisions of paragraph (d) are no longer to be used as a bar to considering a claim under the amended criteria of 38 U.S.C. § 1725 when the claim otherwise meets the new criteria set forth in paragraph (f).  In this case, the Veteran received private medical treatment at Shands Jacksonville Hospital from May 9, 2016 to May 21, 2016.  Thus, the treatment was not received on or after July 19, 2001, but more than 90 days before May 21, 2012.

The Veteran's treatment ended on May 21, 2016,.  As such, a claim for reimbursement must have been received by August 21, 2016; however, his respective claims were received on August 26, 2017; August 29, 2017; September 2, 2016; and on November 21, 2016.  All of the claims were made in excess of 90 days following the last day of treatment.  Thus, they were not timely filed. 

In order to be entitled to payment or reimbursement of medical expenses for treatment not previously authorized at a non-VA facility under 38 U.S.C. § 1725, a claimant must satisfy all of the listed conditions.  The Veteran has not satisfied at least one of these conditions, namely filing a timely claim.  The Board carefully considered the retroactive payment provision of 38 C.F.R. § 17.1004 (f); however, as the treatment in this case was not more than 90 days before May 21, 2012.  Accordingly, 38 C.F.R. § 17.1004 (f) does not apply.

The Board recognizes that the Veteran asserts that he was personally unable to file the claim and neither his family nor hospital submitted a claim.  However, the Board is without authority to grant benefits on an equitable basis.  See 38 U.S.C. §§ 5103, 7104.  "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, 432-33 (1992). 

Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied.



ORDER

Entitlement to payment or reimbursement for unauthorized private medical expenses incurred at Shands Jacksonville Hospital from May 9, 2016 to May 21, 2016 is denied.




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



Department of Veterans Affairs