Citation Nr: 1025470 Decision Date: 07/08/10 Archive Date: 07/19/10 DOCKET NO. 08-19 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at a private medical facility on April 19, 2008. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Wife ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from January 1963 to December 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of June 2008 by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Veteran requested a Travel Board hearing in conjunction with this current claim. The hearing was scheduled and subsequently held in December 2009 before the undersigned Veterans Law Judge (VLJ). The Veteran and his wife testified at the hearing and the transcript is of record. FINDINGS OF FACT 1. The Veteran was treated on April 19, 2008 at the Florida Hospital-Flagler in Palm Coast, Florida. 2. The statements and hearing testimony provided by the Veteran and his wife regarding the severity of his symptoms at the time that he sought treatment at the Florida Hospital-Flagler lack credibility. 3. The treatment the Veteran received for acute allergic reaction and drug rash, diagnosed as "dermatitis due to drugs and medicines taken internally," was not of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria are not met for payment or reimbursement of the unauthorized medical expenses incurred on April 19, 2008 at the Florida Hospital-Flagler. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to payment or reimbursement of the medical expenses he incurred on April 19, 2008 at the Florida Hospital-Flagler (FHF) in Palm Coast, Florida. Payment Under 38 U.S.C.A. § 1728 According to 38 C.F.R. § 17.54 (2009), the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays. Pursuant to 38 C.F.R. § 17.52(a) (2009), VA may contract with non-VA facilities for care. Furthermore, 38 C.F.R. § 17.120 (2009) 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 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 non-service-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. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 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. See also, 38 U.S.C.A. § 1728 (West 2002); Zimick v. West, 11 Vet App. 45, 49 (1998). Prior to the April 19, 2008 treatment in question, the Veteran was service-connected for posttraumatic stress disorder (100 percent, effective January 18, 2005); tinnitus (10 percent, effective October 6, 2005); and bilateral hearing loss (non- compensable, effective October 6, 2005). The Veteran had a combined disability rating of 100 percent, effective January 18, 2005, but there is no indication in the record that the care rendered at FHF on April 19, 2008 was for a service-connected disability or for a non-service-connected disability associated with and held to be aggravating a service-connected disability. There is also no evidence that the Veteran is permanently and totally disabled as a result of his service-connected disabilities or that he was a participant in a rehabilitation program under 38 U.S.C. ch. 31. Accordingly, 38 U.S.C.A. § 1728 is not for application in the current case. Payment Under 38 U.S.C.A. § 1725 The Board will also review the Veteran's claim under the Veterans Millennium Health Care and Benefits Act to determine if he is entitled to payment or reimbursement for medical care incurred on April 19, 2008 at FHF. See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2009). According to 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment for non-service-connected disabilities in non-VA facilities is made only if all of the following criteria are met: (a) The emergency services were provided in a hospital emergency department or 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 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 was 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 function, 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 beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that the 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 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 for a 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; and (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). Resolution of the Veteran's claim turns on whether the treatment rendered at FHF on April 19, 2008 was for a medical emergency such that a VA facility was not feasibly available. The VAMC determined that the Veteran satisfied the other initial criteria outlined in 38 U.S.C.A. § 1725 for consideration under the Veterans Millennium Health Care and Benefits Act. See VA Form 10-583 dated June 2008. The definition of the term "emergency treatment" is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) 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 (3) until such time as a veteran can be transferred safely to a Department facility or other Federal facility. 38 U.S.C.A. § 1725(f)(1). Preliminarily, medical records contained in the Veteran's duplicate combined health record (CHR) indicated that he was hospitalized at a private medical facility on March 30, 2008 for treatment of diverticulitis. A discharge summary associated with this episode of care indicated that the Veteran was released home on April 1, 2008. A VA treatment note dated the following day showed that the Veteran filled prescriptions for Levofloxacin (i.e., Levaquin) and Clindamycin. The Veteran presented to FHF on April 19, 2008 shortly after 9 P.M. He reportedly developed sores in his mouth and blisters on his feet four days prior to this episode of care. It was noted that the Veteran was recently prescribed Levaquin and Clindamycin. The Veteran's past medical history was also significant for a recent hospital admission for diverticulitis. The Veteran was noted to be alert and in no acute distress upon admission. A review of systems was otherwise negative. A physical examination revealed evidence of blistered hands, skin rash, oral/tongue lesions, and lumps. The clinical impression acute allergic reaction and drug rash. The final impression was "dermatitis due to drugs and medicines taken internally." The Veteran was discharged home in stable condition that night with a prescription for "Magic Mouthwash." After-care instructions associated with this hospitalization indicated that the Veteran had an allergic reaction "most likely caused by the Levaquin." The Veteran's claims were initially denied in June 2008 on the basis that the care he received was non-emergent (i.e., such that delay would not have been hazardous to his life or health). The Veteran filed a timely notice of disagreement (NOD) in July 2008 in which he stated that he experienced difficulty swallowing on the evening in question. According to the Veteran, he requested that his wife take him to the emergency room because his tongue and hands were blistered. The Veteran also stated that he lived six miles away from FHF and over 90 miles from the VAMC in Gainesville, Florida. In another statement dated July 2008, the Veteran provided an alternate rationale for his visit to the emergency room on April 19, 2008. Specifically, the Veteran indicated that he had a stomach ache that morning. The pain worsened throughout the day, according to the Veteran. The Veteran also stated that when he called VA, "a recording came on, by then I was hallowing [sic] so [the Veteran's wife] took me to the emergency room." The Veteran requested reconsideration of the initial denials and in July 2008, a VA physician reviewed the Veteran's duplicate CHR and upheld the initial denials. In particular, the physician noted that the Veteran reported a four-day history of problems. According to the physician, the Veteran "should have presented to the clinic." The physician also noted evidence of conflicting statements from the Veteran regarding the reason for his trip to the emergency room on April 19, 2008. The VAMC issued an SOC in July 2008 in which it continued the Veteran's denials for payment or reimbursement of unauthorized medical expenses incurred at FHF on April 19, 2008 on the grounds that the Veteran's condition was non-emergent. Thereafter, the Veteran timely perfected this appeal. He indicated that on April 19, 2008, his hands and tongue blistered after taking prescribed medication. He also experienced difficulty swallowing and stated "[i]f I did not think this was emergency, I would not have went [to the emergency room]." See VA Form 9. The Veteran and his wife also testified in support of the current claim in December 2009. In particular, the Veteran indicated that he reported to FHF on April 19, 2008 after having problems breathing and swallowing. According to the Veteran, his wife put a "stick" or her finger down the Veteran's throat to prevent him from choking. See Hearing Transcript, p. 8. The Veteran also experienced blisters in his mouth and reported going "in and out of consciousness." Id. at p. 12. The Veteran further stated that he was "in fear of dying," and that the nearest VAMC was approximately 65 miles from his home. Id. at p. 5. He also stated that, "[y]ou know, I'm not a doctor but it was an emergency." Id. at p. 6. Given the evidence of record, the Board finds that the preponderance of the evidence is against payment or reimbursement for unauthorized medical expenses incurred at a private medical facility on April 19, 2008. As noted above, the controlling inquiry in this case is whether the Veteran's treatment for dermatitis, manifested by blistered hands, skin rash, oral/tongue lesions, and lumps, was of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Board finds that it was not. The Board acknowledges that there is competing evidence regarding the severity of the Veteran's symptoms on April 19, 2008 at the time care was rendered at FHF. While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (Court) has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000). On one hand, emergency room treatment records dated April 19, 2008 indicated that the Veteran had a four-day history of mouth sores and blistered feet. It was also noted that the Veteran was alert and in no acute distress at the time of admission. A review of systems was otherwise negative. Additionally, there was no indication contained in the duplicate CHR that the Veteran's symptoms were of an emergent nature at that time, nor was there any evidence that the Veteran had difficulty swallowing or breathing. Ostensibly, such symptoms, if experienced by the Veteran, would have been noted at the time of admission. On the other hand, the Veteran asserted that he had difficulty swallowing and/or breathing in addition to having blistered hands and mouth. He also testified before the undersigned VLJ that his wife put a "stick" or her finger down the Veteran's throat to prevent him from choking and he reported going "in and out of consciousness." The Veteran also stated that he was "in fear of dying." The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"); see also, Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009). Thus, the Veteran's lay statements and testimony as well as that testimony provided by his wife regarding the severity of his symptoms on April 19, 2008 is competent evidence. Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Ultimately, however, the Board finds that the statements and testimony provided by the Veteran and his wife regarding the severity of his symptoms at the time that he sought treatment at FHF on April 19, 2008 lack credibility. As noted above, the emergency room treatment records made clear that the Veteran experienced oral/tongue lesions and blistered hands at that time of admission on April 19, 2008. These symptoms were present for four days. There is no indication of record, aside from the Veteran's own statements, that he had difficulty breathing or swallowing or that he was "in and out of consciousness." In fact, the emergency room treatment records specifically refuted his contention in that they described him as "alert" and "in no acute distress." The Board finds the emergency room treatment records to be highly probative evidence regarding the severity of the Veteran's symptoms as these records were generated contemporaneously to the incident in question. In addition to reporting problems with breathing and swallowing, the Board notes that the Veteran provided an alternate rationale for his visit to the emergency room on April 19, 2008. Specifically, the Veteran indicated that he had a stomach ache that morning which worsened throughout the day. Similarly, the Veteran's statements in this regard are not supported by the evidence of record particularly where, as here, no gastrointestinal complaints were noted at the time of admission to the emergency room. The Board also observes that the Veteran provided additional statements and testimony regarding the severity of his symptoms only after his claims were initially denied in June 2008. It is also noteworthy that the purported severity and specificity of the Veteran's symptoms continued to increase following VA's continued denials and at the time of the hearing; however, the April 19, 2008 incident was also more remote in time when the Veteran made such assertions. Given the various inconsistent statements and testimony provided to the Board by the Veteran and his wife, the Board finds that any such statements made by the Veteran or his wife concerning the severity of symptoms at the time that he sought treatment at FHF lack credibility. The Board's conclusion in this regard is buttressed by the July 2008 decision denying the Veteran's claims on reconsideration. In reaching that conclusion, a VA physician reviewed the Veteran's duplicate CHR, to include the April 2008 emergency room treatment records as well as his lay statements. In particular, the physician noted that the Veteran reported a four-day history of problems. According to the physician, the Veteran "should have presented to the clinic." The physician also noted evidence of conflicting statements from the Veteran regarding the reason for his trip to the emergency room on April 19, 2008. The controlling question in this case is whether the Veteran's condition on April 19, 2008 was of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The Board is sympathetic to the Veteran's situation in this case, particularly to his belief that his symptoms were of an emergent nature. However, the Board finds that the Veteran's condition on April 19, 2008 was not of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. In fact, when the symptoms first appeared, the Veteran did not find that it was of an urgent nature. Rather, he waited 4 days before reporting for treatment. He had several days in which he could have reported to VA concerning the reason he reported to the private emergency room. In determining that the treatment was not for an emergency, the Board takes into consideration the objective evidence of record as described in detail above, as well as the lay statements and testimony provided by the Veteran and his wife, which is found to lack credibility. In light of the Veteran's inability to satisfy the criterion outlined in 38 C.F.R. § 17.1002(b), the Board finds that any discussion as to whether a VA medical facility was feasibly available and/or safe transfer possible is unnecessary. Thus, the Board finds that payment or reimbursement of unauthorized medical expenses incurred by the Veteran at the Florida Hospital-Flagler on April 19, 2008 is not warranted. The Board has applied the benefit-of-the-doubt doctrine in reaching these conclusions. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was not provided proper VCAA notice in this case. However, the Board finds that any notice errors with respect to the information and evidence needed to substantiate the Veteran's claim for payment or reimbursement of unauthorized medical expenses did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). The VAMC provided VCAA notice to the Veteran in July 2008 after the initial decision in this matter. The notice letter informed the Veteran of the Veteran's and VA's respective duties for obtaining evidence. In particular, the Veteran was informed to submit, or authorize VA to obtain, medical evidence in support of his claim. Regrettably, however, the Veteran was not provided with the information and evidence needed to substantiate a claim for payment or reimbursement of unauthorized medical expenses. The Veteran's claim for payment or reimbursement of unauthorized medical expenses was denied in June 2008. But, the Veteran was informed in that same decision of the information and evidence needed to substantiate a claim for payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1725. He was also informed of the reasons for denial and of his procedural and appellate rights. His claim was readjudicated in July 2008 and he was also provided with a statement of the case (SOC) in July 2008. The SOC also provided, in complete detail, all of the information and evidence needed to substantiate the current claim for payment or reimbursement of unauthorized medical expenses under 38 C.F.R. § 17.120. The Board also notes that 38 U.S.C.A. §§ 1725, 1728 was amended by The Veterans' Mental Health and Other Care Improvements Act of 2008. See Pub. L. No. 110-387, § 1728, 122 Stat. 4110 (Oct. 10, 2008). The amendments contained therein concerned mandatory reimbursement for veterans receiving emergency treatment in non-VA medical facilities until transfer to a VA medical facility (provided that the other criteria for eligibility were met). These amendments are not applicable to the instant case because the primary dispute here is whether the Veteran's condition constituted a medical emergency. The definition of "emergency treatment" as seen in 38 U.S.C.A. § 1725remained unchanged following the October 2008 amendments. Furthermore, the Board need not determine here whether 38 U.S.C.A. § 1725 as revised effective October 10, 2008 is to be given retroactive effect. Whether the version effective prior to October 10, 2008 or the version effective since October 10, 2008 is applied, the result is the same; as the appeal must be denied. Based on the notices provided to the Veteran, including the July 2008 notice letter, the VAMC decisions, and the July 2008 statement of the case, the Board finds that a reasonable person could be expected to understand what information and evidence is required to substantiate the claim. The information provided allowed him to effectively participate in the appeal process. In this regard, the Veteran provided specific arguments during the pendency of this appeal in which he attempted to demonstrate the existence of a medical emergency. See Veteran's July 2008 statements and December 2009 hearing testimony. Furthermore, the Veteran is represented by a Veteran's service organization (VSO). This VSO has put forth evidence and argument in support of the current claim. See Overton, 20 Vet. App. at 438 (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). In sum, the Board finds that any deficiency in the notice to the Veteran or the timing of the notice is harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. The Board further finds that VA has complied, to the extent required, with the duty-to- assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Payment or reimbursement of unauthorized medical expenses incurred by the Veteran on April 19, 2008 at Florida Hospital- Flagler is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs