Citation Nr: 0732344	
Decision Date: 10/12/07    Archive Date: 10/23/07

DOCKET NO.  05-41 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, 
Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized 
emergency room visits on February 26 and March 2, 2005, at 
Peace River Regional Medical Center.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant; Appellant's Spouse


ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Associate Counsel


INTRODUCTION

The veteran had active military service from January 1973 to 
November 1974.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from May and June 2005 determinations of 
the Medical Administration Services (MAS) of a Department of 
Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida.  
The veteran testified before the undersigned Veterans Law 
Judge in June 2007; a transcript of that hearing is 
associated with the duplicate Combined Health Record (CHR).


FINDINGS OF FACT

1.  The medical expenses incurred on February 26 and March 2, 
2005, were not authorized by VA.

2. The veteran is not currently service-connected for any 
disability.

3.  The services provided by Peace River Regional Medical 
Center on February 26 and March 2, 2005, were not rendered 
due to an emergency.


CONCLUSION OF LAW

The criteria for payment or reimbursement for medical 
expenses incurred on February 26 and March 2, 2005, in 
connection with private emergency room treatment at Peace 
River Regional Medical Center have not been met.  38 U.S.C.A. 
§§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 
17.1000-1008 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA 
receives a complete or substantially complete application for 
benefits, it must notify the claimant of the information and 
evidence not of record that is necessary to substantiate a 
claim, which information and evidence VA will obtain, and 
which information and evidence the claimant is expected to 
provide.  38 U.S.C.A. § 5103(a) (West 2002).   VA must 
request that the claimant provide any evidence in the 
claimant's possession that pertains to a claim. 38 C.F.R. § 
3.159 (2007).  See also Pelegrini v. Principi, 18 Vet. App. 
112, 120-21 (2004) (Pelegrini II).

After careful review of the claims folder, the Board finds 
that a letter dated in November 2005 fully satisfied the duty 
to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).  This letter advised the veteran what information and 
evidence was needed to substantiate the claim decided herein 
and what information and evidence must be submitted by her, 
namely, any additional evidence and argument concerning her 
claim for payment or medical reimbursement, and enough 
information for the Bay Pines VAMC to request records from 
the sources identified by the veteran.  In this way, she was 
advised of the need to submit any evidence in her possession 
that pertains to the claim.  She was also specifically told 
that it was her responsibility to support the claim with 
appropriate evidence.  Finally the letter advised her what 
information and evidence would be obtained by VA, namely, 
records like medical records, employment records, and records 
from other Federal agencies.  

The Board notes that the November 2005 letter was sent to the 
veteran after the May and June 2005 determinations of the MAS 
at the Bay Pines VAMC.  However, to the extent that the 
notice was not given prior to the initial determination of 
the claim in accordance with Pelegrini II, the Board finds 
that any timing defect was harmless error.  See Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  In this regard, the 
notice provided to the veteran in November 2005 fully 
complied with the requirements of 38 U.S.C. § 5103(a) and 38 
C.F.R. § 3.159(b), and, after the notice was provided, the 
case was readjudicated and a March 2007 supplemental 
statement of the case was provided to the veteran.  See 
Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 
(2006) (a (supplemental) statement of the case that complies 
with all applicable due process and notification requirements 
constitutes a readjudication decision).

In light of the above, the Board finds that all notices 
required by VCAA and implementing regulations were furnished 
to the veteran and that no useful purpose would be served by 
delaying appellate review to send out additional VCAA notice 
letters.

The Board finds that VA has also fulfilled its duty to assist 
the veteran in making reasonable efforts to identify and 
obtain relevant records in support of the veteran's claims as 
well as obtain a VA medical opinion when necessary.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007).  All 
records pertaining to the veteran's two emergency room visits 
are associated with the CHR, as well as medical opinions 
regarding the emergent nature of these visits.  The veteran 
has not identified any additional relevant, outstanding 
records that need to be obtained before deciding her claim.  

Under the circumstances of this case, "the record has been 
fully developed," and it is difficult to discern what 
additional guidance VA could have provided to the veteran 
regarding what further evidence she should submit to 
substantiate her claim.  Conway v. Principi, 353 F.3d 1369 
(Fed. Cir. 2004).  Therefore, the Board is satisfied that VA 
has complied with the duty to assist requirements of the VCAA 
and the implementing regulations and the record is ready for 
appellate review.

Analysis

The veteran seeks payment of reimbursement for emergency 
service for treatment at a non-VA medical facility on 
February 26 and March 2, 2005.  She contends that her medical 
expenses should be paid by VA because a prudent layperson 
would have considered her situation to be an emergency given 
the amount of pain she was in and the location of the nearest 
open VA medical facility.

Reports from Peace River Regional Medical Center (PRRMC) show 
that on February 26, 2005, at 6:00 a.m., the veteran was 
admitted for treatment of complaints of lower back pain.  
According to the emergency room report, the veteran told 
physicians that her symptoms began four days earlier, with 
the symptoms coming on gradually and then becoming 
progressively worse.  She described her symptoms as spasms in 
her right lower back, similar to previous episodes, which 
were severe and exacerbated by movement.  The veteran 
indicated that she had had similar symptoms, though not as 
severe, approximately one month earlier, and that her 
physician had prescribed muscle relaxants.

The veteran was triaged at 6:17 a.m., and at such time she 
report her low back pain as a 10 on the pain scale.  The 
veteran was examined approximately one hour later, and such 
examination revealed moderate spasm in the right paralumbar 
musculature with no evidence of trauma, costovertebral angle 
tenderness, or sensory and/or motor deficits.  An X-ray of 
the lumbosacral spine revealed no acute fractures, osseous 
lesions or significant premature degenerative changes.  The 
diagnoses indicated were acute low back pain and acute lumbar 
strain.  She was treated with a muscle relaxant, advised to 
seek follow-up care in three days, and discharged 
approximately three hours after her arrival (9:13 a.m.) in 
stable, improved, and satisfactory condition.

Four days later, on March 2, 2005, the veteran again 
presented at PRRMC with complaints of lower back pain.  The 
emergency report shows that she was admitted at 7:21 a.m. 
with sharp, moderate pain in the left lower back for four 
days.  She also complained of constipation.  It was noted 
that she had a prior medical history of chronic back pain.  
On examination, the veteran demonstrated a negative straight 
leg raise bilaterally, moderate tenderness to palpation and 
mild spasm of the left paralumbar musculature, and normal 
motor and sensory function.  The report indicates diagnoses 
of acute low back pain, acute muscular spasm, and 
constipation.  She was treated with Toradol and Dulcolax, 
instructed to obtain follow up care in two days, and 
discharged at 9:09 a.m. in stable condition.

In May and June 2005, the Bay Pines VAMC denied claims for 
payment or reimbursement of these two visits after a VA 
physician and a VA hospital administrative services employee 
determined that the veteran's care on both occasions was non-
emergent and that VA facilities were feasibly available.  The 
veteran timely appealed both determinations and they are now 
before the Board for review.

Initially, in adjudicating a claim for reimbursement of 
medical expenses, the Board must make a factual determination 
as to whether VA gave prior authorization for the non-VA 
medical care that the veteran received in a private facility.  
See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54.  This 
is a factual, not a medical, determination.  Similes v. 
Brown, 5 Vet. App. 555 (1994).

In the case of an emergency that existed at the time of 
admission, an authorization may be deemed a prior 
authorization if an application is made to VA within 72 hours 
after the hour of admission.  38 C.F.R. § 17.54.  In this 
case, PRRMC contacted VA on March 2, 2005, regarding both of 
the veteran's emergency room visits.  Thus, at least with 
respect to the veteran's March 2, 2005, visit, application 
for prior authorization was made within 72 hours of 
admission.  However, there is no evidence that proper 
authorization was obtained for payment of the private medical 
expenses incurred on February 26 and/or March 2, 2005 from a 
VA employee with appropriate authority, namely the VAMC 
director or a VA clinic director.  Accordingly, the Board 
must conclude that prior authorization for the private 
medical treatment received on February 26 and March 2, 2005, 
was not obtained pursuant to 38 C.F.R. § 17.54, and that 
payment is not warranted for expenses incurred in conjunction 
with that treatment under 38 U.S.C.A. § 1703.

Reimbursement for expenses not previously authorized is 
permitted only under the following circumstances: (a) 
treatment was for (1) an adjudicated service-connected 
disability; (2) a nonservice-connected disability associated 
with and held to be aggravating an adjudicated service-
connected disability; (3) any disability of a veteran who is 
permanently and totally disabled as a result of a service-
connected disability; or (4) a veteran who is participating 
in a vocational rehabilitation program; and (b) such 
treatment was 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 would not 
have been reasonable, sound, wise, or practical.  38 U.S.C.A. 
§ 1728; 38 C.F.R. § 17.120.

In this case, the veteran does not meet all of the criteria 
of 38 C.F.R. § 17.120(a).  Service connection is not in 
effect for any disability, thus she cannot meet the criteria 
for a nonservice-connected disability having aggravated a 
service-connected disability.  Additionally, there is no 
evidence that the veteran is participating in a 
rehabilitation program.  The provisions in 38 C.F.R. § 17.120 
are conjunctive, not disjunctive.  Malone v. Gober, 10 Vet. 
App. 539, 547 (1997).  Thus, since at least one of the three 
requirements of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 has 
not been met, the Board need not further discuss the 
remaining elements (at least with respect to entitlement 
under 38 U.S.C.A. § 1728), and entitlement must be denied 
under these provisions.

Payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities may be 
authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. 
§§ 17.1000-1003 (2007).  Section 1725 was enacted as part of 
the Veterans Millennium Health Care and Benefits Act, Public 
Law 106-177.  The provisions of the Act became effective as 
of May 29, 2000.  To be eligible for reimbursement under this 
authority the veteran has to satisfy all of the following 
conditions:

(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 was not feasibly 
available and an attempt to use them before hand 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 that the 
nearest available appropriate level of care was at a non-VA 
medical center);

(d) The claim for payment or reimbursement for any medical 
care beyond the initial emergency evaluation and treatment is 
for a continued medical emergency of such a nature that the 
veteran could not have been safely discharged or transferred 
to a VA or other Federal facility (the medical emergency 
lasts only until the time the veteran becomes stabilized); 

(e) 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;

(f) The veteran is financially liable to the provider of 
emergency treatment for that treatment;

(g) The veteran has no coverage under a health-plan contract 
for payment or reimbursement, in whole or in part, 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 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);

(h) 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 or in part, the veteran's liability 
to the provider;

(i) 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 (2007).

The VAMC reviewed the requests for payment or reimbursement 
of the unauthorized non-VA emergency care under the 
Millennium Health Care Act.  Both an administrative and 
medical review was conducted with respect to both emergency 
room visits.  

In a June 2005 medical opinion, a physician noted, based on 
emergency room treatment records, that the veteran presented 
to PRRMC on February 26, 2005, with a four day history of low 
back pain with prior episodes.  With consideration of the 
chronic/recurrent nature of the veteran's condition, the 
multi-day duration of worsening symptoms, and an absence of 
complications upon examination, the physician found the 
veteran's presentation to be "clearly and obviously" non-
emergent.  This physician also noted that non-emergent VA 
medical facilities were available.

Similarly, in a May 2005 medical opinion, a physician noted 
that the veteran had a history of chronic back pain, and that 
during her March 2, 2005, emergency room visit no 
neurological deficits were demonstrated.  He went on to state 
that patients with chronic conditions have a responsibility 
to manage minor exacerbations without an emergency room 
visit, and that the veteran's condition was clearly non-
emergent.  In this regard, there was an absence of 
complications, an absence of indicator of severity on 
examination (such as negative straight leg raise), and a 
multi-day duration of the exacerbation.

Having reviewed the complete record, the Board finds that the 
care rendered to the veteran on February 26 and March 2, 
2005, was not rendered for "emergency treatment" as defined 
by applicable law.  The Board acknowledges the veteran's and 
her spouse's statements that the treatment rendered on 
February 26 and March 2, 2005 was for a medical emergency of 
such a nature that delay would have been hazardous to life or 
health.  However, the veteran and her spouse, as laypersons, 
can only report symptoms.  Neither she, nor her husband, are 
qualified to opine as to her emergent status, because as 
laypersons without medical training, they are not competent 
to offer an opinion requiring medical expertise.  See 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  

The Court has held that a "medical emergency" is a medical 
question best answered by a physician, see Cotton v. Brown, 7 
Vet. App. 325, 327 (1995), and the only medical opinions of 
record, namely, those obtained from a VA physician, offer 
opinions that the veteran's treatment on February 26 and 
March 2, 2005 were for non-emergent health conditions.  There 
is no competent medical opinion to the contrary; thus, there 
is no medical evidence which demonstrates that the veteran 
was seen for a medical emergency on February 26 and March 2, 
2005.

In making its determination, the Board has considered the 
veteran's testimony herein as to the onset (late evening 
before February 26, 2005 visit) and severity of her symptoms 
(unable to move without help of husband).  However, this 
testimony differs from that reported on the day she sought 
treatment.  Specifically, her hospitalization records clearly 
indicate that she reported a four day history of symptoms at 
her February 26, 2005 visit.  In addition, there is no 
indication in either PRRMC report that the veteran's movement 
was severely restricted upon admission.  The Board observes 
that the veteran's June 2007 testimony was provided over two 
years after the visits currently on appeal.  Under these 
circumstances, the Board finds the statements documented on 
her hospitalization records to be the most persuasive 
evidence herein as to the severity and history of her medical 
condition on each occasion as they were made contemporaneous 
with the events at issue.  

As for the issue of whether a VA facility was not feasibly 
available, the veteran asserts that she had such severe back 
pain on February 26, 2005, that she did not think that she 
could make it to the Bay Pines VAMC.  With respect to her 
visit on March 2, 2005, she testified that the nearest VA 
medical facility, Port Charlotte, would not provide follow-up 
care for a non-VA visit.  In any event, the evidence of 
record is inconclusive on the question of availability, but 
further development is not warranted because the Board has 
already found that the condition of "emergency treatment" has 
not been met.  The Board observes that failure to meet any 
one condition is fatal to the claim.  See Melson v. 
Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive 
"and" in a statutory provision meant that all of the 
conditions listed in the provision must be met). 

The Board recognizes that there are financial difficulties 
that arise from unexpected medical expenses.  However, while 
the Board is sympathetic towards the veteran, it is bound by 
the law, and this decision is dictated by the relevant 
statutes and regulations.  Furthermore, the Board must rely 
on the competent medical evidence of record in determining 
whether the veteran's February 26 and March 2, 2005 PRRMC 
visits were medical emergencies.  See Colvin v. Derwinski, 1 
Vet. App. 171, 175 (1991) (the Board is not free to 
substitute its own judgment for that of a medical expert).

As the competent evidence of record, namely, the May and June 
2005 medical opinions, show that the veteran's conditions 
were not emergent, the Board is without authority to grant 
benefits.  In summary, the Board finds that a preponderance 
of the evidence is against the payment of reimbursement for 
the unauthorized private medical care incurred on February 26 
and March 2, 2005.  Consequently, the benefit-of-the-doubt 
rule does not apply, and the claim must be denied.  38 
U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. 
App. 49, 55 (1990).


ORDER

Entitlement to payment or reimbursement of unauthorized 
emergency room visits on February 26 and March 2, 2005, at 
Peace River Regional Medical Center is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs