Citation Nr: 18144072 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 13-22 014A DATE: October 23, 2018 ORDER 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Palm Bay Community Hospital on April 24, 2013 is DENIED. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Holmes Regional Medical Center from April 24, 2013 to April 28, 2013 is DENIED. FINDINGS OF FACT 1. From April 24, 2013 to April 28, 2013, the Veteran was hospitalized at Palm Bay Community Hospital and Holmes Regional Medical Center after sustaining a heart attack. Both hospitals are private facilities. Both hospitalizations constituted emergency treatment and a VA facility was not feasibly available at the time. The Veteran’s heart condition is a nonservice-connected disability. 2. Although the Veteran was enrolled in the VA health care system at the time his non-VA treatment was furnished at Palm Bay Community Hospital and Holmes Regional Medical Center from April 24, 2013 to April 28, 2013, he had not received VA medical services under the authority of 38 U.S.C. chapter 17 within the 24–month period preceding the furnishing of the non-VA treatment. CONCLUSIONS OF LAW 1. The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Palm Bay Community Hospital on April 24, 2013. 38 U.S.C. §§ 1725(b)(2), 5107 (2012); 38 C.F.R. § 17.1002(d) (2017). 2. The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Holmes Regional Medical Center from April 24, 2013 to April 28, 2013. 38 U.S.C. §§ 1725(b)(2), 5107 (2012); 38 C.F.R. § 17.1002(d) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from June 1977 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Orlando, Florida. The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his August 2013 VA Form 9. However, he cancelled that request in a September 2018 statement from his representative (VSO). Therefore, the Board videoconference hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. To the extent the VCAA is applicable to the instant medical expenses reimbursement claim, the Board has considered its provisions. In any event, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Medical Expense Reimbursement In the early afternoon of Wednesday, April 24, 2013, the Veteran was hospitalized at Palm Bay Community Hospital in Palm Bay, Florida. This is a private facility. He was experiencing worsening chest pain. The pain radiated to his right side and his jaw. He was diagnosed with an acute anterolateral myocardial infarction (a heart attack). His life was in jeopardy. Later that afternoon on April 24, 2013, due to severity of his heart attack, he was medevacked by helicopter to Holmes Regional Medical Center in Melbourne, Florida. This is also a private facility. He was medevacked for emergency cardiac catherization and percutaneous coronary intervention / stent placement. He remained hospitalized at Holmes Regional Medical Center from April 24, 2013 through April 28, 2013. The Veteran’s heart problems are a nonservice-connected disability. He has no health insurance. The Veteran is currently 59 years of age. The Veteran has requested payment or reimbursement for the costs of his unauthorized private hospitalizations at Palm Bay Community Hospital and Holmes Regional Medical Center from April 24, 2013 through April 28, 2013. See May 2013 completed standard billing forms (on HCFA 1500s). Initially, under 38 U.S.C. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a) (2012); 38 C.F.R. § 17.52(a) (2017). However, in this case, VA did not authorize or contract either private hospital - Palm Bay Community Hospital or Holmes Regional Medical Center to provide the Veteran with no cost private care from April 24, 2013 through April 28, 2013. The Veteran has never contended as such. Also, no clinical evidence of record documents any prior authorization by VA. Thus, the issue of prior authorization, as delineated by VA statute and regulation, is not applicable here. Regardless, when a veteran receives treatment at a private facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. In the instant case, because the private hospitalizations in question from April 24, 2013 through April 28, 2013, were rendered for a nonservice-connected disability, the Veteran is not eligible for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for a service-connected disability under 38 U.S.C. § 1728(a). Although the Veteran is service-connected for right knee, tinnitus, and left ear hearing loss disabilities, his private emergency treatment from April 24, 2013 through April 28, 2013 was not rendered for any of these service-connected disabilities. There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, or that he had a total disability permanent in nature (P&T) resulting from service-connected disabilities, or that his nonservice-connected heart problems were associated with and aggravating service-connected disabilities, which in certain instances might have qualified him under 38 U.S.C. § 1728. See also 38 C.F.R. § 17.120(a). Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725 – the Veterans Millennium Health Care and Benefits Act. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. The Board will apply the more liberal amended law in this case because the Veteran’s private hospitalization occurred in April 2013, subsequent to the October 2008 effective date of the amendments. It is undisputed that both of his private hospitalizations above from April 24, 2013 through April 28, 2013, were rendered in a “medical emergency” 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. See 38 C.F.R. § 17.1002(b). The Veteran was having a heart attack. His life was clearly in danger at that time. It is also undisputed the nearest VA facilities were not feasibly available from April 24, 2013 through April 28, 2013. Id. § 17.1002(c). In this regard, due to the severity of his heart symptoms, it was prudent to go immediately to the nearest private facility, which was closer to the Veteran’s home than the VAMC in Orlando, Florida. In addition, stabilization is not at issue here. See 38 C.F.R. § 17.1005. The Veteran was in critical condition throughout his entire treatment. In summary, it appears the Veteran has met nearly all of the substantive and administrative criteria for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h) (2017). On this issue, VA has never disputed that the Veteran’s non-VA hospitalizations from April 24, 2013 through April 28, 2013 were for “emergency treatment.” See 38 U.S.C. § 1725(f)(1). However, the one remaining criteria at issue in this case is whether the Veteran was “an active Department health care participant” at the time of his emergency treatment. To meet this criterion, he must be enrolled in the VA health care system and he must have received VA medical services under authority of 38 U.S.C. chapter 17 within the 24–month period preceding the furnishing of such emergency treatment. See 38 U.S.C. § 1725(b)(2)(A)-(B); 38 C.F.R. §17.1002(d) (2017) (emphasis added). The relevant VA statute provides that a veteran is “an active Department healthcare participant” if (1) the veteran is enrolled in the health care system established under section 1705(a) of this title; and (2) the veteran received care under this chapter within the 24-month period preceding the furnishing of such emergency treatment. 38 U.S.C. § 1725(b)(2)(A)-(B) (emphasis added). The relevant VA regulation provides that at the time the emergency treatment was furnished, the Veteran must have been enrolled in the VA health care system and must have received VA medical services under authority of 38 U.S.C. chapter 17 within the 24–month period preceding the furnishing of such emergency treatment. 38 C.F.R. §17.1002(d) (emphasis added). Therefore, the relevant VA statute and relevant VA regulation in this case are consistent in their requirements. There is no discrepancy in either. Upon review of the evidence, the Board finds that the requirements for payment or reimbursement of unauthorized emergency medical treatment under 38 U.S.C. § 1725 at Palm Bay Community Hospital and at Holmes Regional Medical Center from April 24, 2013 to April 28, 2013, are not met. In this regard, the Board acknowledges the Veteran was indeed enrolled in the VA health care system prior to his April 2013 private hospitalizations in question. See e.g., March 1, 2013 VA letter from Chief Business Office Purchased Care to the Veteran; April 1, 2013 VA Health Eligibility Center letter to the Veteran on VBMS; and April 10, 2013 VA notification letter to Veteran on VBMS to schedule a VA examination at the VA Community Based Outpatient Clinic (CBOC) in Viera, Florida. Because he was enrolled in the VA health care system, the Veteran was scheduled for a VA examination on April 28, 2013, but his private hospitalizations from April 24, 2013 through April 28, 2013 prevented him from attending that VA appointment. In any event, it is undisputed that the Veteran meets one of the two conditions for being “an active Department healthcare participant” in that he was enrolled in the VA health care system established under section 1705(a) at the time the emergency treatment in question was furnished. See again 38 U.S.C. § 1725(b)(2)(A); 38 C.F.R. §17.1002(d). However, the Veteran does not meet the second condition for being “an active Department healthcare participant” as he did not receive VA medical services within the 24–month period preceding the furnishing of the private emergency treatment. See again 38 U.S.C. § 1725(b)(2)(B); 38 C.F.R. §17.1002(d). The Board emphasizes these criteria under 38 U.S.C. § 1725(b)(2) and 38 C.F.R. § 17.1002(d) are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (providing that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). On this issue, VA treatment records on VBMS confirm that the Veteran did not receive any VA medical services or care until May 4, 2013, which is six days after the April 2013 private hospitalization in question. The Veteran has never asserted that he actually visited a VA facility for VA medical care prior to his private hospitalizations from April 24, 2013 through April 28, 2013. He was scheduled to receive VA medical care during this timeframe, but did not actually receive the VA medical care due to his private hospitalizations. See August 2013 Notice of Disagreement (NOD); August 2013 VA Form 9; and September 2018 representative (VSO) statement. Instead, the Veteran believes VA should “waive” the 24-month requirement in this case because he was scheduled to be seen for VA medical care on April 28, 2013, during the last day of his private hospitalizations. He adds that the only reason he was not seen at the VA CBOC in Viera, Florida prior to the private hospitalizations is due to VA’s delay in processing his request for medical care at the VA CBOC. In short, he believes it is unfair he is being punished due to VA’s delay in providing him VA medical treatment. Although the Board is certainly sympathetic to the Veteran’s claim and particular circumstances, it is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). VA is bound by the applicable law and regulations as written. 38 U.S.C. § 7104(c). “[N]o 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) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The law does not allow for reimbursement of private medical expenses under § 1725 when a Veteran did not receive VA medical services within the 24–month period preceding the furnishing of any private emergency treatment. As such, there simply is no provision of law in which the Board may grant the   Veteran the benefits sought. Accordingly, the claims for reimbursement must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel