Citation Nr: 19135167 Decision Date: 05/07/19 Archive Date: 05/07/19 DOCKET NO. 01-03 662A DATE: May 7, 2019 ORDER Entitlement to payment or reimbursement for the cost of medical services received at St. Benedict's Medical Center in Jerome, Idaho from April 22, 2000, to April 24, 2000, is denied. FINDING OF FACT 1. Service connection for diabetes mellitus was not in effect as of April 22, 2000. 2. The Veteran did not receive prior written authorization from VA for his treatment at St. Benedict’s Medical Center in Jerome, Idaho from April 22, 2000, to April 24, 2000. CONCLUSION OF LAW The criteria for payment or reimbursement for the cost of medical services received at St. Benedict's Medical Center in Jerome, Idaho from April 22, 2000, to April 24, 2000, have not been met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. § 17.1002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1967 to April 1970. Entitlement to payment or reimbursement for the cost of medical services received at St. Benedict's Medical Center in Jerome, Idaho from April 22, 2000, to April 24, 2000 The Veteran is seeking reimbursement for the cost of treatment at St. Benedict's Medical Center in Jerome, Idaho, a private facility, from April 22 – 24, 2000 for diabetic ketoacidosis. 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); 38 C.F.R. § 17.52(a). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private treatment from April 22, 2000 to April 24, 2000. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. The issue of prior authorization is thus not applicable. The Veteran was treated for diabetic ketoacidosis at St. Benedict’s Medical Center from April 22 – 24, 2000. At the time, service connection was not in effect for diabetes mellitus. It went into effect as of November 2000. In addition, the Veteran did not have a total and permanent service-connected disability rating. 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. Payment or reimbursement for private emergency medical treatment may be considered under 38 U.S.C. § 1725. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). A condition that a prudent layperson would reasonably expect that delay in seeking medical attention would be hazardous to life or health can include one manifested by severe pain that results in serious dysfunction of a body part. 38 C.F.R. § 17.1002(b). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act (Millennium Act) on November 30, 1999, and took effect 180 days after the date of enactment, or May 29, 2000. See Pub. L. No. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. The Millennium Act did not make any provision for reimbursement of unauthorized medical expenses incurred prior to May 29, 2000. Similarly, a VA interim final rule implementing the provision of the Millennium Act provides that the effective date of the rule is May 29, 2000, stating that because May 29, 2000 is the effective date of 38 U.S.C. § 1725, VA would make retroactive payments or reimbursements, as appropriate, for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). The final rule implementing the Millennium Act did not include any relevant changes to the interim final rule. See 68 Fed. Reg. 3,401 (2003). Unfortunately, the Millennium Act and 38 U.S.C. § 1725 became effective after the Veteran incurred the medical expenses at issue from April 22 – 24, 2000. Congress provided the Millennium Act with an explicit effective date of May 29, 2000, preventing retroactive application prior to that date. Likewise, VA's Secretary has established an effective date for the implementing regulations that clearly do not permit their retroactive application to the facts of this case. Unfortunately, the provisions of 38 U.S.C. 1725 are not applicable due to the dates of the private treatment, and the claim must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.