Citation Nr: 0213998 Decision Date: 10/09/02 Archive Date: 10/17/02 DOCKET NO. 01-07 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to reimbursement or payment of the cost of medical services received during inpatient hospital care in a non-Department of Veterans medical facility from January 31, 2001, to February 2, 2001. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs Medical Center (VAMC) in Togus, Maine. In July 2002, the veteran testified at a video-teleconference, with the undersigned Member of the Board. FINDINGS OF FACT 1. The VA's duty to assist the veteran in developing all evidence pertinent to the claim has been met. 2. On January 31, 2001, the veteran was admitted to York Hospital through the emergency room with a one-week history of epigastric pain, where he remained until February 2, 2001. 3. At the time of the hospitalization at issue, he was rated 100 percent for post-traumatic stress disorder (PTSD) and rated permanent and totally disabled. 4. By VA letter in April 2001, the veteran was notified that VA letter in April 2001 denied payment or reimbursement for his inpatient care at York Hospital denied because treatment had been available at the VAMC. CONCLUSION OF LAW The criteria for reimbursement or payment of medical expenses incurred at York Hospital from January 31, 2001, to February 2, 2001, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 17.120, 17.121 (2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. The Board finds that the May 2001 Statement of the Case and February 2002 Supplemental Statement of the Case, provided to both the veteran and his representative, specifically satisfy the requirement at § 5103 of the new statute in that they clearly notify the veteran and his representative of the evidence necessary to substantiate his claim. Additionally, the Board finds that the duties to assist provided under the new statute at § 5103A have also been fulfilled in that all evidence and records identified by the veteran as plausibly relevant to his pending claim have been collected for review; the hospitalization summary, hospital admission medical report, and in-patient medical reports from York Hospital for the veteran's medical care for the period at issue have been obtained and associated with the claims folder; as well as testimony presented during a videoconference hearing held before the undersigned. Because no additional evidence has been identified by the veteran as being available but absent from the record, the Board finds that any failure on the part of VA to further notify the veteran what evidence would be secured by VA and what evidence would be secured by the veteran is harmless. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background On January 27, 2001, the veteran telephoned VAMC personnel complaining of stomach discomfort and gastrointestinal bleeding for four days and that he was feeling weak. He was instructed to go to the local emergency room for evaluation and advised that he may incur the cost of emergency care, which he indicated he understood. On January 31, 2001, at 8:52 a.m., the veteran again telephoned VAMC. The VA triage nurse referenced the veteran's earlier call on January 27, 2001, where he had been advised to go to the local emergency room for evaluation. The veteran related that he not done so because of his dislike of hospitals. During the telephone conversation, it was difficult for VAMC personnel to discuss his symptoms in detail because the veteran kept interrupting the clinical questions with his comments on the workings of VA and what was wrong with the system. However, he complained of the onset of vomiting a week earlier. He was informed that he should contact "911" for evaluation at the nearest emergency room and advised that he may incur the cost of emergency care, which he indicated he understood. He stated that he would have someone drive to the local emergency room. The veteran was further advised to call VAMC back if there was no improvement in his condition or if he had any problems getting to the emergency room. On February 1, 2001, VAMC personnel received a call from the veteran informing VA that he had been admitted to York Hospital on January 31, 2001, about mid-afternoon. The reason given for hospital admission was unspecified pain. He was discharged to home from the hospital on February 2, 2001. The veteran's hospitalization records for January 31, 2001 to February 2, 2001, from York Hospital were received by VA medical personnel. These show that, on the day of admission, he had presented himself to the emergency room with a one- week history of epigastric pain. He had had no clear-cut response to Pepto-Bismol; the pain would occur with fast walking; he had no history of similar pain; and he had no risk factors for coronary artery disease. Physical examination was essentially normal, except for diffuse direct tenderness throughout both upper abdominal quadrants. While hospitalized, he underwent medical testing and was discharged on February 2, 2001, with the diagnoses of acute gastritis and borderline high blood pressure. Analysis To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public hospital not operated by the VA, may be paid under the following circumstances: (a) For veterans with service-connected disabilities, care or service was rendered: (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; (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. Chapter 31 and who is medically determined to be in need of hospital care or medical services; and (b) care and services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) 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 nave been refused. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. In the veteran's case, he has a disability deemed permanently and totally disabling; hence, he could be entitled to reimbursement or payment for medical expenses for treatment for any disability without prior authorization, provided that both an emergency existed and no VA medical facility was feasibly available. The veteran contends that his situation leading up to his hospitalization at issue was an emergency. He maintains, both in correspondence and during his personal hearing testimony, that he had been vomiting, passing blood, and experiencing weakness. Emergency treatment means medical care or services furnished: (A) when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until such time as the veteran can be transferred safely to a VA facility or other Federal facility. See 38 U.S.C.A. § 1725(f)(1). Applying the relevant law and regulations to the facts of this case, the Board notes that the veteran had initially contacted VAMC personnel on January 27, 2002, and again four days later, on January 31, 2001, prior to seeking treatment at York Hospital. He was advised on both occasions to seek medical evaluation of his complaints at a local emergency room and that he might incur the cost of emergency care, which he indicated he understood. The advice received from VAMC personnel was for the veteran's own benefit and not an authorization for payment or reimbursement for services for an emergency room evaluation of his medical complaints. Four days after his first contact with VA, he went to York Hospital, via private vehicle. The veteran was admitted to the hospital. Upon admission, he gave a history of epigastric pain, but made no mention of gastrointestinal bleeding or continual vomiting. He was admitted for tests and discharged two days later with diagnoses of acute gastritis and borderline high blood pressure. Based on the telephone calls made to VAMC medical personnel prior to the veteran's January 31, 2001 to February 2, 2001, hospitalization, the complaints and symptomatology of epigastric pain noted by him during those calls, and the medical records for that hospitalization, VA medical personnel determined, based on sound medical judgment, found that the services rendered to him at the time of his hospitalization and the treatment he received while hospitalized were not of such nature that a prudent layperson would have expected that delay in seeking such immediate attention would be hazardous to life or health, particularly in light of the fact that he initially delayed his hospital admission by 4 days, and did not seek emergency transportation once he decided to seek treatment. See 38 U.S.C.A. § 1725; see also Bellezza v. Principi, 16 Vet. App. 145 (2002). ORDER Reimbursement or payment of the cost of medical services received in a non-VA medical facility between January 31, 2001, and February 2, 2001, is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.