Citation Nr: 21076750 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-28 438A DATE: December 27, 2021 ORDER Entitlement to reimbursement for medical services provided from August 27, 2016 through September 3, 2016 at Baptist Medical Center is denied. Entitlement to reimbursement for medical services provided from November 8, 2016 through November 10, 2016 at Flagler Hospital is denied. FINDINGS OF FACT 1. The claim for reimbursement for medical services provided from August 27, 2016 through September 3, 2016 at Baptist Medical Center was received more than 90 days after the Veteran's discharge from there. 2. The claim for reimbursement for medical services provided from November 8, 2016 through November 10, 2016 at Flagler Hospital was received more than 90 days after the Veteran's discharge from there. CONCLUSIONS OF LAW 1. The criteria for reimbursement for medical services provided from August 27, 2016 through September 3, 2016 at Baptist Medical Center are not met. 38 U.S.C. §§ 1703, 1725, 5107 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2021). 2. The criteria for reimbursement for medical services provided from November 8, 2016 to November 10, 2016 at Flagler Hospital are not met. 38 U.S.C. §§ 1703, 1725, 5107 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2017 and June 2017 decisions of the Veterans Health Administration (VHA). In June 2017 and April 2018 VA Form 9s, Appeal to Board of Veterans' Appeals, the Veteran requested to appear at a hearing before the Board. The Veteran failed to appear for the hearing scheduled before the Board in October 2021. He has not provided good cause reasons for his failure to appear; therefore, his hearing request is considered to be withdrawn. Medical Expense Reimbursement 1. Entitlement to reimbursement for medical services provided from August 27, 2016 through September 3, 2016 at Baptist Medical Center 2. Entitlement to reimbursement for medical services provided from November 8, 2016 through November 10, 2016 at Flagler Hospital The Veteran is claiming entitlement to reimbursement of medical expenses incurred at private hospitals from August 27, 2016 through September 3, 2016, at Baptist Medical Center, and from November 8, 2016 through November 10, 2016 at Flagler Hospital. On August 27, 2016, the Veteran was admitted to Baptist Medical Center in South Jacksonville, Florida, and discharged on September 3, 2016. The Veteran was admitted for an acute small-bowel obstruction with inflamed appendix and fistulas, acute abdomen, and sepsis. He was also noted to have a systolic murmur. He underwent immediate surgery and the assessment was acute abdomen, peritonitis, ruptured acute appendicitis. The Veteran was admitted on November 8, 2016 to Flagler Hospital in St. Augustine, Florida, with acute coronary syndrome in the setting of ischemic cardiomyopathy. He was discharged on November 10, 2016. VA has several authorities to pay or reimburse emergency treatment furnished by a non-VA medical facility. In this case, there is no indication in the record or assertions from the Veteran that prior authorization was given for his treatment at Baptist Medical Center or Flagler Hospital. In the absence of prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C. § 1703 and 38 C.F.R. §§ 17.52, 17.53, and 17.54 for contracted medical services at a non-VA facility. There is no medical evidence of record, nor assertion by the Veteran, that the emergency treatment was provided for an adjudicated service-connected disability, a disability aggravated by a service-connected disability, any disability of a veteran with permanent and total disability, or any disability of a veteran who is a participant in a vocational rehabilitation program and is determined to be in need of treatment to continue his training. Because the Veteran does not meet the criteria for payment of emergency medical expenses under 38 U.S.C. § 1728, the Veteran's claim for reimbursement must be considered under 38 U.S.C. § 1725, as implemented by 38 C.F.R. §§ 17.1000-17.1008. Pursuant to 38 C.F.R. § 17.1002, VA may make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities in non-VA facilities, but only if all the following criteria are met: (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 that VA has an agreement with to furnish health care services for veterans was not feasibly available and an attempt to use them 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 the nearest available appropriate level of care was at a non-VA medical center); (d) 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; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) The veteran does not have coverage under a health-plan contract that would fully extinguish the medical liability 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 the 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); (g) If the condition for which the 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 or provider 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, the veteran's liability to the provider; (h) 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. To obtain payment or reimbursement under 38 U.S.C. § 1725, a claimant must submit to the VA medical facility of jurisdiction a completed standard billing form (such as a UB92 or a HCFA 1500). See 38 C.F.R. § 17.1004(b). Also, 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 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(d). In this case, the Veteran's records indicate that he did not have third party medical insurance. A stamp on a bill for the treatment at Baptist Medical Center beginning on August 27, 2016 through September 3, 2016 states "RECEIVED" December 5, 2016. A Health Insurance Claim form for treatment at Baptist Medical Center from August 28, 2016, through September 2, 2016 has a date stamp of December 19, 2016. Finally, a health insurance claim form for treatment on August 27, 2016 has a date stamp of March 10, 2017. The Board notes that the May 2017 Statement of the Case indicated that the HCFA 1500 insurance claim and medical records were first received in June 2016, which would have been prior to the dates of treatment. Based on the date stamps on the claim forms, the evidence indicates that the earliest date of receipt of a claim for treatment at Baptist Medical Center was December 5, 2016, 93 days after the Veteran's discharge date. In regard to the Veteran's treatment from November 8, 2016, to November 10, 2016, at Flagler Hospital, a claim was received on March 15, 2017 for services provided on November 8, 2016. The claim was received 125 days after his discharge. The Veteran has not disputed that the claims for reimbursement were received by VA more than 90 days after the date of treatment. He asserts that he did not know of the 90-day filing requirement. In a June 2017 notice of disagreement, he stated that the timely filing limitation was never discussed at two VA Health orientations and it was not in the Florida Veterans Handbook. In a May 2017 VA Form 9, he stated that he had reviewed the Florida Veterans' Benefit Guide and did not observe any requirements in reference to 38 C.F.R. § 17.1004. In an April 2018 statement, submitted with his VA Form 9, the Veteran stated that an employee in the billing department at Flagler Hospital told him that the medical records for his treatment from November 8 through November 10, 2016 were complete/closed on November 23, 2016. He stated that Emergency Resources Group had no insurance records or medical records for him in their computer system, so they could not tell him when the records were sent to VA. The evidence does not show that the Veteran pursued an action to obtain payment or reimbursement from a third party. Therefore, the Veteran needed to file the claim within 90 days after the date that he was discharged from the facility that furnished the emergency treatment. As the claims were submitted more than 90 days after the date of the Veteran's discharge, the criteria for reimbursement are not met. Thus, reimbursement under the provisions of 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002 cannot be granted for the treatment received from August 27, 2016 through September 3, 2016, at Baptist Medical Center and from November 8, 2016 through November 10, 2016, at Flagler Hospital. The Board is sympathetic to the Veteran's assertion that he did not know that a claim for payment or reimbursement of the cost of the medical services needed to be filed within 90 days. However, under the law, persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). This presumed knowledge extends to statutory and regulatory provisions pertaining to the filing of claims with VA. See, e.g., Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Consequently, the Board is not able to find the claims for reimbursement for medical services provided from August 27, 2016 through September 3, 2016, and from November 8, 2016 to November 10, 2016, were timely based on the Veteran not initially knowing that a claim needed to be filed within 90 days. In conclusion, as the threshold legal requirement of a timely filed claim has not been met, the Board has no authority to award payment or reimbursement of the cost of the medical services received from August 27, 2016 through September 3, 2016, and from November 8, 2016 to November 10, 2016, at private hospitals. 38 C.F.R. § 17.1004(d). Therefore, the claims must be denied. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.