Citation Nr: 18150183
Decision Date: 11/14/18	Archive Date: 11/14/18

DOCKET NO. 17-05 701A
DATE:	November 14, 2018
ORDER
Entitlement to payment or reimbursement for the cost of non-VA medical care provided on April 20, 2016, at Munroe Regional Medical Center is denied.
FINDINGS OF FACT
1. On April 20, 2016, the Veteran received non-VA medical care from the Munroe Regional Medical Center.
2. More than 90 days after the Veteran’s non-VA medical care was furnished, the claim for reimbursement was received by VA.
CONCLUSION OF LAW
The criteria for payment or reimbursement for unauthorized medical expenses incurred at Munroe Regional Medical Center on April 20, 2016 are not met.  38 U.S.C. §§ 1703, 1725, 1728 (2012); 38 C.F.R. § 17.1004 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active military service from April 1971 to April 1973.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 administrative decision issued by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida.
In connection with this appeal, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2018.  A transcript of that hearing has been associated with the claims file.
Medical reimbursement
When VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a Veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the Veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703 (a)(3) (2012); 38 C.F.R. § 17.52 (2018).
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 (2018); Malone v. Gober, 10 Vet. App. 539 (1997). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2018). The Veteran does not contend, and the evidence does not otherwise suggest, that the Veteran’s treatment on April 20, 2016, was authorized in advance. 
Nevertheless, VA may reimburse Veterans for unauthorized medical expenses incurred in non-VA facilities when:
(a) Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and
(b) Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and
(c) VA or other federal facilities were not 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.
38 U.S.C. § 1728 (a) (2012); 38 C.F.R. § 17.120 (2018).
All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). In this case, the Veteran is not service-connected for any disability, nor is he a participant in an eligible rehabilitation program. Thus, payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1728 (a) must be denied.
The Board will next consider whether payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities is authorized under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008. To be eligible for reimbursement under those statutory and regulatory provisions, the Veteran must 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 such provider 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);
(h) If the condition for which 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 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 (2018).
However, to receive payment or reimbursement for emergency services, a claimant must file a claim within 90 days after the latest of the following: (1) the date that the Veteran was discharged from the facility that furnished the emergency treatment; (2) 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 (3) the date 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)-(3).
The Veteran received emergency medical treatment at Munroe Regional Medical Center on April 20, 2016. 
The Board must determine whether the claims for payment were timely filed according to the criteria set forth in 38 C.F.R. § 17.1004 (d)(1)-(3). The Veteran was discharged on April 20, 2016 and he had 90 days to submit a claim for payment or reimbursement. Thus, the claim had to be received by approximately July 19, 2016. The record reflects that VA received two VA form 1500 claim forms with regard to the above claim. However, the claim forms at issue were received by VA later than that date, on July 28, 2016 and September 21, 2016. 
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 has considered the retroactive payment provision of 38 C.F.R. § 17.1004 (f); however, the treatment in this case was not furnished more than 90 days before May 21, 2012. As noted above, the Veteran received treatment on April 20, 2016. Accordingly, 38 C.F.R. § 17.1004(f) does not apply.
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The Board acknowledges the Veteran’s argument that he was unaware that he had to file a claim for payment or reimbursement for his emergency treatment, that he received a bill after the 90 days expired, and that the emergency transportation company should have, but did not submit the claim in a timely manner. See Bd. Hrg. Tr. at 3; November 2016 Notice of Disagreement. However, as noted above, the law is clear that such claim must be submitted within 90 days, and thus there is no legal authority to grant the claim. The Board sympathizes with the Veteran’s plea for equitable relief in this case. However, the laws and regulations governing payment or reimbursement for emergency medical treatment expenses establish very specific eligibility requirements for such benefits. The Board, as a legal body of statutory creation, is bound by such authority, and does not have the power to grant the equitable relief that the Veteran seeks. See 38 U.S.C. §§ 503, 7104. Accordingly, the Veteran’s claims for reimbursement lack legal merit and must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Cannaday, Associate Counsel