Citation Nr: 22018987 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 19-24 863 DATE: March 31, 2022 ORDER Entitlement to payment or reimbursement of private medical expenses incurred for treatment at St. Luke's Hospital from November 22, 2017, to November 25, 2017, is denied. FINDING OF FACT The claim for payment of non-VA emergency medical care provided to the Veteran from November 22, 2017, to November 25, 2017, was received in March 2018, outside of the 90-day period in which a timely claim could be filed. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at St. Luke's Hospital from November 22, 2017, to November 25, 2017, are not met. 38 U.S.C. §§ 1725, 1728; 38 C.F.R. §§ 17.1004(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to June 1993, from June 2000 to October 2000, from March 2002 to April 2002, from May 2005 to July 2005, and from November 2008 to February 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 decision of the Department of Veterans Affairs (VA) Veterans Health Administration (VHA). In August 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. Entitlement to payment or reimbursement of private medical expenses incurred for treatment at St. Luke's Hospital from November 22, 2017, to November 25, 2017 The Veteran is claiming entitlement to reimbursement for the costs of unauthorized non-VA emergency treatment provided to the Veteran on November 22, 2017, to November 25, 2017, for treatment of a non-service-connected condition. Emergency Department records from St. Luke's Hospital in Duluth, Minnesota, dated November 22, 2017, reflect that the Veteran presented with abdominal pain. He stated that he was kneed in the left flank the night before and woke up with severe abdominal pain, worse with breathing. The primary impression was a major laceration of the spleen, and the Veteran was admitted to the Hospital. A November 25, 2017, discharge summary indicates that the Veteran was admitted to trauma service with a grade 4 blunt spleen injury. He was observed in the Intensive Care Unit (ICU) for 24 hours before being transferred to the regular nursing floor. On November 25, 2017, his abdominal discomfort was minimal and he had no signs or symptoms of symptomatic anemia. Therefore, he was discharged. A claim for reimbursement of the treatment beginning on November 22, 2017, at St. Luke's Hospital was filed on April 5, 2018. Administrative records and a July 2018 letter from St. Luke's Hospital indicate that they initially had information for insurance that had expired. In the July 2018 letter, the St. Luke's Hospital stated that on December 4, 2017, they sent the Veteran a letter requesting current insurance information. Due to no response, they put the account in self-pay and sent the patient a bill on December 12, 2017. The Hospital's processing department called the Veteran on January 25, 2018, February 5, 2018, February 23, 2018, and March 9, 2018, and sent several bills with no response. St. Luke's Hospital stated that they were first informed that the Veteran had VA coverage on March 29, 2018, and promptly billed on his behalf. In a July 2018 notice of disagreement, the Veteran stated that he had instructed his wife to present his VA medical card when he was admitted to the hospital, but unfortunately, she did not submit it. In a July 2019 VA Form 9, the Veteran stated that he was not aware that VA was not being billed. He stated that he was led to believe that VA was being billed by his spouse at the time, and it was not until later, after receiving medical bills from the provider, that he discovered that the bills were not being billed to VA. He stated that he did not receive the bills from the medical facility within the 90-day window due to an address change. He stated that as soon as he received the bill, he requested the medical facility to bill VA. He had no other health insurance. He also stated that he was unaware of the process for billing VA for emergency care. At the August 2021 Board hearing, the Veteran testified that his wife forgot to give the hospital his VA card. He stated that after he was discharged from the hospital, he went into a depression. He testified that he lived in the same house for two months after the hospitalization and he did not remember when he received the first bill. He stated that he did not check mail and did not return phone calls during that time period. 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 St. Luke's 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 certain criteria are met. 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 did not have insurance from a third party to pay for the treatment. He testified that his only insurance was through VA. Therefore, the relevant date for purposes of 38 C.F.R. § 17.1004(d) is the date he was discharged from the hospital, November 25, 2017. The evidence shows that the claim for reimbursement was filed more than 90 days after the Veteran was discharged from St. Luke's Hospital because he did not notify the hospital about his coverage through VA. The records from St. Luke's Hospital indicate they repeatedly tried to contact the Veteran by phone and letter, but did not receive insurance information. A November 27, 2017, note from the hospital reflects that they left a cell phone message looking for insurance information and sent an insurance letter. The hospital was first informed by the Veteran about his VA coverage on March 29, 2018. The Veteran has not disputed the fact that the claim was filed late. He has also not disputed that he failed to inform St. Luke's Hospital about his VA coverage until March 29, 2018, more than 90 days after his discharge from the hospital. Although the Veteran has asserted that he was experiencing depression after his discharge from the hospital, he also testified that he lived at the same address for two months after the discharge. The evidence indicates that an attempt was made to inform him about the bill by St. Luke's Hospital. The Veteran has asserted that the untimeliness of the claim was due to his mistaken impression that St. Luke's Hospital had been provided with his VA information and because he was unaware of the process for reimbursement. However, the Board is without authority to grant the appeal on an equitable basis and instead is constrained to follow the specific provisions of the law. The evidence shows that the Veteran's claim was not timely filed within 90 days of his discharge from St. Luke's Hospital. Based on such evidence, payment or reimbursement of private medical expenses incurred for treatment at St. Luke's Hospital from November 22, 2017, to November 25, 2017, is not warranted. The evidence of record persuasively weighs against the claim and, therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Cynthia M. Bruce 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.