Citation Nr: 0007426 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-16 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with private hospital care in March 1998. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from July 1944 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 decision of the Department of Veterans Affairs Medical Center (VAMC) in Richmond, Virginia, which denied entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with private hospital care in March 1998. In January 2000, a hearing was held before the undersigned Board member making this decision who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). FINDINGS OF FACT 1. Medical care and services for pneumonia were provided to the veteran at the emergency room of Medical College of Virginia (MCV) Hospital in March 1998. 2. The veteran's only service-connected disability is residuals of frozen feet, evaluated as 40 percent disabling. 3. Payment or reimbursement of the expenses of the hospital care and medical services provided by MCV Hospital in March 1998 was not previously authorized by VA. 4. The hospital care and medical services provided by MCV Hospital in March 1998 were not treatment for a service-connected disability or for a nonservice-connected disability associated with and aggravating a service-connected disability. 5. At the time he received care from MCV Hospital in March 1998, the veteran was not totally disabled due to a permanent service-connected disability; nor was he participating in a VA vocational rehabilitation program. CONCLUSION OF LAW Payment or reimbursement of unauthorized medical expenses incurred in connection with treatment at a private hospital in March 1998 is not warranted. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Section 1710 of title 38 of the U.S. Code provides that the Secretary shall furnish hospital care and medical services and may furnish nursing home care which the Secretary determines to be needed (1) to any veteran for a service- connected disability and (2) to any veteran who has a service-connected disability rated at 50 percent or more. Further, the Secretary shall furnish hospital care which the Secretary determines to be needed to any veteran (1) who has a compensable service-connected disability rated less than 50 percent; (2) whose discharge or release from active military service was for a compensable disability that was incurred or aggravated in line of duty; (3) who is in receipt of disability compensation; (4) who is a former prisoner of war; (5) who is a veteran of the Mexican Border Period or of World War I; (6) who was exposed to a toxic substance, radiation or other conditions; or (7) who is unable to defray the expenses of necessary care as determined under section 1722(a) of this title. 38 U.S.C.A. § 1710(a) (West 1991 & Supp. 1999). With regard to the use of the word "shall" in the statute, the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has stated, Purely an announcement of direction and authority, § 1710 contains neither a mechanism to enforce the "shall" command nor remedial or reimbursement provisions for its violation. Malone v. Gober, 10 Vet. App. 539, 541 (1997). The Court noted, however, that "two other statutes . . . do permit reimbursement in certain limited circumstances." Malone, 10 Vet. App. at 541. First, when VA facilities are not capable of furnishing care or services required, the VA Secretary, as authorized in Section 1710, may contract with nondepartment facilities in order to furnish any of the following: (1) Hospital care to a veteran for the treatment of (a) a service-connected disability; or (b) a disability for which the veteran was discharged or released from active military service; or (c) a disability of a veteran who has a total disability permanent in nature from a service-connected disability; or (d) a disability associated with and held to be aggravating a service- connected disability; or (e) for any disability of a veteran participating in a rehabilitation program under 38 U.S.C. chapter 31 and when there is a need for hospital care or medical services for any of the reasons enumerated in § 17.48(j). (2) Medical services for the treatment of any disability of (a) a veteran with a service- connected disability evaluated as at least 50 percent disabling; (b) a veteran who has been furnished hospital care, nursing home care, domiciliary care, or medical services, and requires medical services to complete treatment incident to such care or services; or (c) a veteran of the Mexican Border period or World War I or who is in receipt of increased pension or additional compensation or allowances based on the need of regular aid and attendance or by reason of being permanently housebound if the Secretary has determined, based on a VA examination, that the medical condition of such veteran precludes appropriate treatment at VA facilities. (3) Hospital care for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran presently receiving medical services in a VA facility or nursing home. See 38 U.S.C.A. § 1703 (a)(1)-(8) (West 1991 & Supp. 1999); 38 C.F.R. § 17.52 (a)(1)-(11) (1999). The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (1999). See Malone, 10 Vet. App. at 541. A "second avenue for potential relief for a veteran entitled to VA care forced to obtain treatment at a non-VA facility is 38 U.S.C. § 1728, which provides that the Secretary 'may, under such regulations as the Secretary shall prescribe, reimburse . . . for the reasonable value of such care or services . . . for which such veterans have made payment.'" Malone, 10 Vet. App. at 541, quoting 38 U.S.C. § 1728(a) (emphasis added). Moreover, in any case where reimbursement would be in order for the veteran under section 1728(a), "the Secretary may, in lieu of reimbursing such veteran, make payment of the reasonable value of care or services directly . . . to the hospital or other health facility furnishing the care or services . . . ." 38 U.S.C.A. § 1728(b) (West 1991). Such reimbursement is available only where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service- connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a) (West 1991). The Court has observed that given the use by Congress of the conjunctive "and" in the statute "all three statutory requirements would have to be met before reimbursement could be authorized." Malone, 10 Vet. App. at 542. 38 C.F.R. § 17.120 further provides that to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service-connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service- connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service- connected disability (does not apply outside of the States, Territories, and possessions of the United State, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in Sec. 17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) When Federal facilities are unavailable. VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. In this case, service connection has been in effect since 1946 for one disability, residuals of frozen feet, rated 40 percent disabling since January 12, 1998. Records from MCV Hospital show that the veteran was treated in their emergency room on March 14, 1998. His complaints included a cough and shortness of breath. The impression was probable left lower lobe pneumonia. No treatment was provided for the veteran's service-connected residuals of frostbite of the feet. The veteran thereafter submitted a claim for reimbursement for the medical care and services provided by MCV Hospital. Fee basis ascertained that the VAMC in Richmond, Virginia, was on ambulance diversion until 3:00 p.m. on March 14, 1998. The authorizing physician at the VAMC disapproved the claim in August 1998, noting that treatment provided was not for a service-connected disability or a condition adjunct to a service-connected disability. On appeal of this decision, including at a personal hearing before the Board in January 2000, the veteran contends that he was picked up by an ambulance at his home on March 14, 1998. His wife called a private ambulance service without contacting the VAMC. In accordance with his request, the veteran was en route to the Richmond VAMC; however, the VAMC diverted the ambulance to MCV Hospital. The VAMC was reportedly unable to treat the veteran because of a shortness of beds and staff. The veteran and his wife claim that it was stated at the time that the government would pay for the veteran's treatment at MCV Hospital, and that, therefore, VA authorized his treatment at MCV Hospital. The veteran also stated that the staff at MCV Hospital wanted to admit him for a few days, but he left the hospital that same day because he did not want to incur a large bill. It is uncontested that on March 14, 1998 the veteran's wife arranged for an ambulance to take him to a VA hospital, and that while he was en route, the ambulance was diverted to a private hospital, MCV, where he was treated in the emergency room and released. Essentially, he proffers alternative arguments in support of his claim for payment or reimbursement for expenses incurred in connection with that treatment. He argues first that there was actual or de facto prior approval by VA of his treatment by MCV. In the alternative, he argues that under the controlling law and regulations, he is entitled to payment or reimbursement for the expenses even if there was no prior approval. With respect to the first argument, that VA did, in fact, give prior approval for MCV treatment, there is no competent evidence to support such assertion. The Board is cognizant of the veteran's testimony that he was told by the ambulance driver and/or private hospital personnel and/or VA personnel that VA would pay the costs of this private hospitalization. This is hearsay evidence because, by his own testimony/statements, the information was not gleaned from the person purportedly approving the MCV treatment, but was instead conveyed by a third party. Furthermore, even if someone tentatively indicated that VA would pay for MCV treatment, there is no indication in the record that it was a person authorized to contract for VA payment of private hospitalization expenses or that the requirements of 38 U.S.C.A. § 1703(a) and 38 C.F.R. § 17.52 were met. Further, the diversion of the ambulance by the VAMC does not constitute advanced authorization of private care at VA expense. Malone, 10 Vet. App. at 544. In regard to the alternate argument, that under the law and regulations the veteran is entitled to reimbursement even if there was no prior authorization for private treatment, it is particularly noteworthy that all three statutory requirements of section 1728 must be met before reimbursement can be authorized. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. In this regard, the evidence shows that VA facilities were not feasibly available as the veteran was redirected to a private hospital because VA did not have beds or staff necessary for his immediate treatment. However, the care provided was not for an adjudicated service-connected disability, or for a nonservice-connected disability associated with and held to be aggravating a service-connected disability. The veteran's sole service-connected disability is residuals of frostbite of the feet, not pneumonia, and the VA authorizing physician determined that the pneumonia was not "adjunct" to a service-connected disability. Moreover, the veteran did not have a total disability permanent in nature from a service-connected disability and was not participating in a VA vocational rehabilitation program at the time that the private hospital care was rendered. Inasmuch as the requirements of 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 17.120(a) are not met, there is no need to address the matter of whether the treatment provided was, indeed, emergent in nature. As was noted above, all three requirements of 38 U.S.C.A. § 1728(a) must be met in order to establish entitlement to payment or reimbursement without prior authorization. Accordingly, for the reasons and bases noted above, the Board concludes that payment or reimbursement of the unauthorized medical care in this case is not warranted. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with private hospital care in March 1998 is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals