Citation Nr: 1645123 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 12-30 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to reimbursement of non-VA pharmacy prescriptions. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating action of the Department of Veterans Affairs (VA) Bay Pine VA Healthcare System. In the Substantive Appeal on a VA Form 9, dated in October 2012, the Veteran requested a hearing before a Veterans Law Judge of the Board at his local VA office. However, in a statement received in October 2014, the Veteran withdrew his request for a hearing. As such, the Board finds that it may proceed with adjudication. FINDINGS OF FACT 1. The Veteran, as a layperson, would not have expected that a delay in the filling of his prescriptions would have been hazardous to his life or health or that he could reasonably expect the absence of immediate medical attention to result in placing his health in serious jeopardy. 2. VA pharmacy services were feasibly available. CONCLUSION OF LAW The criteria for reimbursement of non-VA pharmacy prescriptions are not met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.1002, 17.1004, 17.1005 (2015); M-1, Part I, Chapter 18, ¶¶ 18.53, 18.64b, 18.71. REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. These statues and implementing regulations do not apply to claims for benefits governed by 38 C.F.R. Part 17 (the governing regulations for reimbursement of private medical expenses). See Barger v. Principi, 16 Vet. App. 132, 138 (2002). The provisions of Chapter 17 of 38 U.S.C.A., and 38 C.F.R. Part 17, contain separate notice requirements. A claimant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." 38 C.F.R. § 17.124. When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and basis for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17. 38 C.F.R. § 17.132. The claims file contains and the VAMC referred to the prescriptions and receipts of filling of the prescriptions, and the Veteran's explanation of the circumstances requiring non-VA pharmacy prescriptions are of record. The VAMC provided a rating action letter and a statement of the case with the reasons and basis for the denial. Generally, the treatment of a Veteran at a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances. 38 U.S.C.A. § 1703(a) (1)-(8); 38 C.F.R. §17.52. There is no assertion, nor does the evidence show, that VA contracted with the CVS Pharmacy used by the Veteran to fill his prescriptions. The Veteran is in receipt of total disability permanent in nature; therefore, the Veteran may be eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. Under this statute the Secretary shall reimburse Veterans eligible for hospital care or medical services for the customary and usual charges of emergency treatment for which such Veterans have made payment. 38 U.S.C.A. § 1728(a). The term "emergency treatment" is defined as having the same meaning as in section 1725(f)(1). To be eligible for reimbursement under 38 U.S.C.A. § 1725, a Veteran has to satisfy all of nine of the following conditions: (1) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (2) 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); (3) 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 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); (4) The claim for payment if 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; (5) 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; (6) The Veteran is financially liable to the provider of emergency treatment for that treatment; (7) 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); (8) 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 (9) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment. 38 C.F.R. § 17.1002. Payment for pharmaceutical services will, generally, only be authorized for a 10-day supply of medication, with no refills. M-1, Part I, Chapter 18, ¶ 18.64b. Fees paid for pharmaceutical services will be based on the cost of generic drugs. M-1, Part I, Chapter 18, ¶ 18.53a. Fee-basis prescriptions will only be filled with VA formulary medication, unless a request for deviation from this policy has been approved. M-1, Part I, Chapter 18, ¶ 18.53b. Beneficiaries in an approved fee-basis status will be reimbursed when they have paid with their own funds for prescriptions needed for prompt treatment of service-connected or other approved disabilities when such medication was not immediately available from a VA pharmacy or participating pharmacy. A receipted statement itemized by the pharmacy as to the kind, quantity and cost of all medicines furnished is required. Amounts to be paid will be governed by the provisions of paragraph 18.53. M-1, Part I, Chapter 18, ¶ 18.71. In addition, the Veteran will be advised as to how to procure medicines in the future. Id. The Veteran is not in receipt of service-connected benefits for his cervical/neck fusion for which he underwent private surgery in December 2011. In a December 2011 surgical note, the Veteran was noted to have been offered cervical laminoplasty for decompression of the thecal sac at VA. However, the wait time for his surgery would have been several months. The Veteran sought local surgery. In a follow-up note dated in December 2011, the Veteran reported that he finished his OxyContin. He continued to take Robaxin which was refilled by the VA. He was given a refill of his Percocet for 65 tablets with no refills. Receipts have been submitted for prescriptions filled by a CVS Pharmacy. On December 17, 2011, two prescriptions were filled, one for 65 tablets of Oxycodone-Acetaminophen for the sum of $112.99. It was noted that this was a 6 day supply. A receipt dated December 30, 2011, indicates that a prescription was filled for the sum of $112.99; however, the receipt does not indicate the name of the drug dispensed. On January 3, 2012, 14 tablets of OxyContin were dispensed for the sum of $38.79. It was noted that this was a 7 day supply. On January 10, 2012, 65 tablets of Oxycodone-Acetaminophen were dispensed for the sum of $112.99. It was noted that this was for an 11 day supply. In October 2012 the Veteran was provided with notice regarding VA's duties to notify and assist. In January 2012 the Veteran's claim was denied. The rating action stated that the prescriptions filled on January 10, 2012, were denied as payment will only be authorized for a 10 day supply of medication, with no refills. The Veteran appealed the decision stating that he was told by his primary physician at the Ft. Myers VA Outpatient Clinic that the prescription drug Oxycodone-Acetaminophen was not available at the clinic pharmacy. The Veteran continued to note that he is a 100 percent service-connected Veteran and had to purchase the medication outside the VA Healthcare System. In February 2012 a Chief Medical Officer (CMO) reviewed the file and continued the denial. The CMO stated: Agree [with] previous reviewer. The [patient] is obtaining multiple prescriptions for narcotics from multiple providers. [Prescriptions] for medication obtained during authorized VA Fee care can be filled in VA pharmacies and are subject to formulary restrictions. [Patient's] may not circumvent the VA's formulary by obtaining [medications] in the community without prior authorization. The prescription obtained by the Veteran was not the result of authorized fee care and will not be reimbursed by VA. Non-emergent [and] VAF feasibly available care remains denied. In the Veteran's substantive appeal on a VA Form 9 the Veteran's spouse reported that the day that her husband was discharged from the hospital she dropped him off at home and went the VA Clinic in Fort Myers. She noted that she saw the head nurse and the Veteran's primary doctor and was told they did not have the medications. Thereafter, she had the prescriptions filled at CVS. She reported that 10 days later her husband went to the VA clinic to have new prescription filled and they said they would get back to him within 24 hours. She states that nobody called and he had severe neck pain from surgery and they paid for the medications again. Entitlement to reimbursement for non-VA pharmacy prescriptions is not warranted. Initially, although the Veteran's spouse has reported that the Veteran's pain was severe, the records do not reveal that the medications were obtained in an emergency. There is no indication that the condition for which the medication was obtained was 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. The Veteran reported that they were told that the clinic pharmacy did not have the medication. However, thereafter, the Veteran's spouse reported that she went to the clinic for the medication after dropping the Veteran at home. She reports that when she went to the VA clinic to have the prescription filled she was told that someone would contact the Veteran within 24 hours and that nobody did. There is no indication in the claims file, other than the Veteran's and the Veteran's spouse's contradicting reports that an attempt was made to fill the prescription at VA. Other than the Veteran and his spouse's statements there is no indication that the medication was not immediately available from a VA pharmacy or participating pharmacy. Additionally, the Veteran and his spouse's statements are contradicted by the CMO who reported that a VA pharmacy was feasibly available. Lastly, the Veteran obtained multiple refills of the medications and one of the fills was in excess of the 10 day limit. As such, reimbursement for non-VA pharmacy prescriptions is denied. ORDER Reimbursement of non-VA pharmacy prescriptions is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs