Citation Nr: 18151716 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 17-22 087A DATE: November 20, 2018 ORDER Entitlement to payment or reimbursement of the cost of medical services received from Capital Regional Medical Center (CRMC) from June 30, 2015 to July 3, 2015 is denied. FINDINGS OF FACT 1. The care received at CRMC was not pre-authorized by VA. 2. The earliest claim for payment or reimbursement for the medical services received from CRMC was not received until November 2016, more than 90 days after the Veteran was discharged from the facility on July 3, 2015. CONCLUSION OF LAW The claim for payment or reimbursement for the medical services received from CRMC from June 30, 2015 to July 3, 2015 was not timely and the criteria for entitlement to payment or reimbursement of the cost of these medical services have not been met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.54, 17.1004(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to November 1977. This matter is on appeal before the Board of Veterans Appeals (Board) from a January 2017 decision of the Department of Veterans Affairs (VA) North Georgia/South Florida VA Healthcare System (HCS). 1. Entitlement to payment or reimbursement of the cost of medical services received from Capital Regional Medical Center (CRMC) from June 30, 2015 to July 3, 2015. The Veteran seeks payment or reimbursement for the cost of treatment received from CRMC for cardiac brachycardia and weakness, which required implantation of a pacemaker. Generally, the admission of any patient to a private or public hospital at Department of Veterans Affairs expense will only be authorized if a Department of Veterans Affairs medical center or other Federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53. When demand is only for infrequent use, individual authorizations may be used. 38 C.F.R. § 17.52(a). In the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization under certain circumstances if an application made by the veteran or by others on his or her behalf is dispatched to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. Regarding whether the CRMC care was pre-authorized by VA, a June 30, 2015 VA primary care note indicates that the Veteran had an appointment scheduled for that day with his primary care provider. However, the Veteran called his primary care physician and indicated that he was feeling too weak to come to the appointment. The Veteran indicated that he had been increasingly fatigued with low blood pressure, low heart rate and dizziness. He also indicated that he felt so exhausted he could hardly move. The VA primary care physician instructed the Veteran to call 911 for transfer to a local emergency room and the Veteran indicated that he would have his brother take him to CRMC. The VA physician indicated that she would place a consult and would let the VA coordinator know that the Veteran was going to the CRMC ER. The physician also told the Veteran not to worry if he was not able to report to an upcoming VA cardiology appointment. The physician noted that his care team would monitor his progress and if the Veteran was still hospitalized at CRMC at that point, the team would request that the appointment be postponed. A June 30, 2015 addendum indicates that the VA physician contacted the CRMC VA coordinator to let that person know that the Veteran was coming to CRMC. The above summarized evidence indicates that the Veteran clearly notified his primary care provider that he could not make his appointment and that he subsequently followed the provider’s instruction to report to the CRMC emergency room. However, there is no indication of record that payment for the CRMC care was authorized by any VA official prior to the Veteran’s arrival at CRMC or within 72 hours thereafter. In this regard, the VA primary care physician who recommended that the Veteran report to CRMC did not indicate that VA was authorizing payment for the treatment the Veteran would receive and there is no other evidence of record indicating that any official made such an authorization. Accordingly, payment or reimbursement for the cost of the medical services received is not available based upon VA pre-authorization of payment for the care. 38 C.F.R. §§ 17.52, 17.53, 17.54. In cases where the non-VA care was not pre-authorized by VA but was emergent in nature, there are two statutes that potentially allow for payment or reimbursement for the costs of such care, 38 U.S.C. § 1728 and 38 U.S.C. § 1725. The Veteran does not have a total and permanent service-connected disability rating and the CRMC treatment was not for any service-connected disability or for any disability that was aggravating a service-connected disability. Likewise, the treatment was not for any injury or illness incurred in relation to participation in a vocational rehabilitation program. Consequently, the Veteran is not eligible for payment or reimbursement for the claimed emergency treatment under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. Nonetheless, payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. A threshold requirement under this statute is that the claim for payment or reimbursement be filed within 90 days after the latest of the following: (1) The date 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 a facility for emergency treatment or if the death occurred during the stay in the facility that included the provision of the 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). As noted above, the medical services the Veteran received at CRMC ended on July 3, 2015. In the March 2017 statement of the case, the VA HCS noted that it received the claim for payment or reimbursement for the services provided during the Veteran’s stay by CRMC itself on November 25, 2016. Similarly, the copy of the claim from CRMC associated with the claims file shows that the claim was date stamped as received by VA on November 25, 2016 and that it was dated, November 16, 2016. Additionally, there is no allegation of record from the Veteran or CRMC that the claim was filed on any earlier date. Thus, the evidence shows that the claim for payment or reimbursement was not filed within the required 90 days from the date the Veteran was discharged from CRMC. Also, it is neither shown nor alleged that the Veteran was attempting to obtain payment or reimbursement for the treatment from a third party during the time between July 3, 2015 and the subsequent filing of the claim in November 2016. Consequently, according to the controlling regulation, the claim was not timely filed and must be denied. 38 C.F.R. § 17.1004(d). In his January 2017 notice of disagreement and May 2017 Form 9, the Veteran emphasized that he was specifically sent to the CRMC ER by his primary care physician. He also reported that the physician had informed him that VA had approved his treatment at CRMC. Additionally, he noted that the CRMC patient advocate informed him after his admission to the facility that VA had approved his admission. Further, he noted that he had to remain at CRMC until July 3, 2015 because he required the implantation of a pacemaker and that CRMC would not have performed the pacemaker procedure and continued to hospitalize him if this care was not approved for payment by VA. Moreover, he reported that he had subsequently received authorization from VA for payment for 6 visits to the cardiologist who had performed the pacemaker procedure at CRMC. The Board notes that it is bound to follow the controlling law and regulations, even if incorrect information was provided to the appellant by a VA official. See McTighe v. Brown, 7 Vet. App. 29 (1994) (payment of government benefits must be authorized by statute; and therefore, erroneous advice given by a government employee cannot be used as a basis for the government not to deny benefits). Thus, to the extent that the Veteran is reporting that his VA primary care physician erroneously told him that VA had pre-authorized payment for the CRMC treatment (as opposed to informing him that VA more generally approved of the plan for the Veteran to receive services at CRMC without referring to whether or not VA was paying for the treatment), the Board cannot use such information as basis for granting the Veteran’s claim. Once again, there is simply no indication from the record that any pre-authorization by VA of payment for the treatment provided by CRMC was made in this case. (Continued on the next page)   The Board must follow the controlling law and regulations. In the absence of any indication that VA authorized payment for the cost of the CRMC hospitalization prior to admission, within 72 hours of the Veteran’s admission or at any time thereafter; and in the absence of any indication that the subsequent claim from CRMC was received within 90 days of July 3, 2015, the Board does not have the legal authority to grant the Veteran’s claim for payment or reimbursement. 38 C.F.R. §§ 17.53, 17.54, 17.1004(d). Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel