Citation Nr: 1822271	
Decision Date: 04/12/18    Archive Date: 04/25/18

DOCKET NO.  14-35 072A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs VISN 20 Northwest Network 
Payment Center in Portland, Oregon


THE ISSUE

Entitlement to payment or reimbursement of the cost of unauthorized non-VA medical treatment and services rendered to the Veteran by Spokane Critical Care Associates on October 14, 2013.


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel






INTRODUCTION

The Veteran had active military service from December 1976 to March 1980.  The appellant is a private medical care provider.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an administrative decision of the VA VISN 20 Northwest Network Payment Center in Portland, Oregon.


FINDINGS OF FACT

1. In November 2013, the appellant electronically submitted a claim for payment of unauthorized medical expenses provided to the Veteran on October 14, 2013.

2. A Preliminary Fee Remittance Advice Report was sent to Spokane Critical Care Associates on November 21, 2013, requesting complete medical records within 30 days.  

3. The appellant did not submit a request in writing for additional time to submit the requested records within the 30-day period.

4. Records from Spokane Critical Care Associates were received by VA in March 2014, more than 30 days after the request for complete medical records.


CONCLUSION OF LAW

Entitlement to payment or reimbursement of the cost of unauthorized medical treatment and services rendered by Spokane Critical Care Associates on October 13, 2013, is denied as a matter of law.  38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.120, 17.121, 17.1000-1008 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter the Board notes that the provisions of 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017) concerning VA's duties to notify and assist claimants are not applicable to this claim because the claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004).

Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C. § 1728 or 38 U.S.C. § 1725 and the implementing regulations. 

As relevant here, a reimbursement claim under 38 U.S.C. § 1725 must be filed within 90 days of 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 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.  See 38 C.F.R. § 17.1004 (2017).

If after reviewing a claim the decision maker determines that additional information is needed to make a determination regarding the claim, such official will contact the claimant in writing and request additional information.  The additional information must be submitted to the decision maker within 30 days of receipt of the request or the claim will be treated as abandoned, except that if the claimant within the 30-day period requests in writing additional time, the time period for submission of the information may be extended as reasonably necessary for the requested information to be obtained.  38 C.F.R. § 17.1004(e).

In the instant case, VA received the claim seeking payment or reimbursement from Spokane Critical Care Associates for services rendered to the Veteran on October 14, 2013, for the Veteran in November 2013.  VA sent a Preliminary Fee Remittance Advice Report to Spokane Critical Care Associates on November 21, 2013, and requested complete medical records related to the Veteran's care be submitted to VA within 30 days.  Records from Spokane Critical Care Associates were received in March 2014.  

On the notice of disagreement, an agent for the appellant argues that the bill was timely filed as it was submitted within 90 days after the Veteran's death at the facility that furnished the treatment.  The Board does not disagree; however, VA requested additional information in November 2013.  Specifically, this request informed the appellant that "[t]he claim is rejected until the ER report, History and Physical, discharge summary, op reports and progress notes are received.  The record does not show, nor does the claimant allege, that a request in writing was made for additional time for submission of the records.  The records from Spokane Critical Care Associates were received more than 30 days after receipt of the request.

The Board acknowledges the appellant's agent's assertion that she did not receive the November 2013 request for additional records, and was thus unaware that VA was in need of any medical records for processing.  See June 2014 notice of disagreement.  While the Board is sympathetic to the appellant's assertions, she has offered no evidence that the November 2013 Preliminary Fee Remittance Advice Report was not delivered to the appellant's office.  The Court of Appeals for Veterans Claims has applied a presumption of regularity to all manner of VA processes and procedures.  See Woods v. Gober, 14 Vet. App. 214, 220 (2000).  In applying this legal principle to the instant claim, it is presumed that the November 2013 Preliminary Fee Remittance Advice Report was mailed and delivered to the appellant's office.  Clear evidence is required to rebut the presumption of regularity.  See id.; see also Baldwin v. Brown, 13 Vet. App. 1, 6 (1999), Mindenhall v. Brown, 7 Vet. App. 271 (1994).  The Board finds that there is insufficient evidence to rebut the presumption of regularity in the operations of either VA or the U.S. Postal Service.  Significantly, there is no indication in the Veteran's records that the notice was returned as undeliverable.

The claim cannot be granted unless all the requirements provided under 38 C.F.R. §§ 17.1001-1008, including the filing requirements under 38 C.F.R. § 17.1004, are met.  Simply stated, the appellant did not meet the threshold 30-day filing requirement for additional information and, for that reason, the claim must be denied.  Where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  For these reasons, the appeal is denied as a matter of law.


ORDER

The claim of entitlement to the payment or reimbursement of the cost of unauthorized non-VA medical treatment and services rendered to the Veteran by Spokane Critical Care Associates on October 14, 2013, is denied.


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs