Citation Nr: 0809758 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-28 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center (VAMC) in Bay Pines, Florida THE ISSUE Entitlement to payment of or reimbursement by the Department of Veterans Affairs (VA) for medical expenses incurred as a result of treatment at Southwest Florida Medical Center on February 4, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from November 1979 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision by the Department of Veterans Affairs (VA) Medical Center in Bay Pines, Florida, which denied the veteran's claim of entitlement to payment or reimbursement for the cost of private medical expenses incurred at Southwest Florida Medical Center on February 4, 2004. The veteran subsequently appealed that decision. In July 2005, the VA Fee Basis Services Section of the VAMC confirmed the previous denial of the veteran's claim for payment or reimbursement of medical expenses incurred at the private hospital on February 4, 2004. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in April 2007. A transcript of that hearing is of record. In July 2007, the Board remanded the case to the RO for further evidentiary development. FINDINGS OF FACT 1. The veteran is service connected for traumatic arthritis, residuals of foot injury, and tinnitus. 2. The medical services he received in February 2004 were not authorized by VA. 3. The evidence establishes that the private medical care rendered on February 4, 2004, was not for a medical emergency of such a nature that delay would have been hazardous to the veteran's life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of private medical expenses incurred in February 4, 2004 have not been met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1002, 17.1003 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In this case, VA provided the veteran VCAA notice by letter dated in August 2005. Regardless, we observe that, while VA's duty to notify and assist has been significantly expanded under the VCAA, the United States Court of Appeals for Veterans Claims (Court) ruled in Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive. In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court held that the provisions of the VCAA are not applicable to statutes and regulations, which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. II. Factual background. The veteran is service-connected for traumatic arthritis, residuals of foot injury, and tinnitus. The veteran is seeking reimbursement for the costs of medical treatment received during an admission to Southwest Florida Regional Medical Center on February 4, 2002. The records show that the veteran was seen at the emergency room on February 4, 2004 with complaints of epigastric pain that began 6 days ago. The pain was described as mild in severity. It was noted that she was treated with Zantac and Maalox without relief. She reported nausea, but no vomiting or diarrhea; she stated that she felt better after eating. Abdominal examination showed epigastric tenderness without peritoneal signs; the remainder of the examination was otherwise normal. Laboratory findings were unremarkable. The final diagnosis was "acute gastritis;" Prevacid was prescribed. Of record is a medical statement from a doctor at the VA Medical Clinic in Fort Meyers, dated February 16, 2005, indicating that he has looked after the veteran for several years. The doctor reported that, on February 4, 2004, the veteran had abdominal pain and called into the clinic nurse for an appointment; he stated that he was booked and the evaluation walk-in clinic had no doctor available to see her that day. The doctor stated that the veteran was advised to go to the emergency room if necessary; he noted that the veteran did go to the emergency room and was diagnosed with gastritis and prescribed medication. At her personal hearing in April 2007, the veteran indicated that she had been having pain for a couple of days. The veteran indicated that, at first, she thought that it might have been gas, so she took some Tums but it didn't relieve the pain; she stated that she then took some Maalox, but that didn't work either. The veteran indicated that she called the VA clinic to get an appointment, but the nurse told her that the earliest she could be seen was two days later; she told the nurse that she didn't know if she could wait that long. The veteran indicated that she was hurting under the rib cage and she wasn't sure what was wrong; she stated that she went to the emergency room on the nurse's advice. The representative argued that the veteran made contact and was advised by her doctor to the emergency room. The veteran indicated that she was concerned for her life because she had steady pain in her chest and it was radiating up under her rib cage and in her back. The veteran indicated that, upon arriving at Southwest Florida Medical Center, they took her vitals, did an x-ray, an electrocardiogram (EKG), and then gave her some medication. The veteran indicated that all she knows is that she was having a lot of pain and wanted relief as quickly as possible. Received in August 2007 were VA progress notes, which show that the veteran was seen at the VA outpatient clinic on February 6, 2004 for a follow up evaluation of a recent episode of gastritis. On examination, it was noted that the veteran had no distress or discomfort. The chest was negative for retractions, and was clear to auscultation. The assessment was status post gastritis. III. Legal Analysis. The veteran filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Southwest Florida Medical Center on February 4, 2004. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2007). In her notice of disagreement, the veteran asserted that she explained her symptoms on a telephone communication with a VA nurse. According to the veteran, the nurse told her to go to the emergency room if necessary. However, even if the veteran was told by the nurse to go to the emergency room, the veteran is not stating that the nurse authorized the veteran to seek treatment a non-VA hospital. It is clear from her notice of disagreement that the veteran decided on her own to go to a non-VA hospital to seek care and treatment. There is no evidence demonstrating that the veteran received prior authorization to go to a non-VA facility. As such, the veteran's treatment at the non-VA facility was not authorized in advance. Nevertheless, under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120 (quoted below), the VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (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 States, 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 § 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 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998); See Hayes v. Brown, 6 Vet. App. 66, 68 (1993). In this case, the record demonstrates that the veteran is service-connected for traumatic arthritis, residuals of foot injury, and tinnitus. She is not service-connected for any other disabilities. Upon review, the care required on February 4, 2004 at Southwest Florida Medical Center was not for any of her service-connected disabilities. The medical records from Southwest Florida Medical Center and the statement from the veteran in her notice of disagreement shows that she sought emergency room treatment for epigastric pain with nausea which she had been experiencing for 6 days; the symptoms were described as mild. Following a chest x-ray and EKG, she was diagnosed with acute gastritis and prescribed Prevacid. Her acute gastritis is not service-connected. There is also no indication in the record that the veteran has a total disability permanent in nature resulting from a service- connected disability, nor is she 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). In short, the claim fails to meet the requirements of the first statutory requirement under 38 C.F.R. § 17.120. Therefore, payment cannot be authorized under 38 C.F.R. § 17.120(a-c). Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 (West Supp. 2007) and 38 C.F.R. §§ 17.1000-1008 (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 transferred to a VA or other Federal facility. (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 that 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). See 38 C.F.R. § 17.1002 (2007). Upon review, the competent medical evidence demonstrates that the veteran's treatment at Southwest Florida Medical Center was not for emergency care or services. The emergency department records from Southwest Florida Medical Center on February 4, 2004 specifically showed that the veteran received treatment for non urgent care and services. None of the records from Southwest Florida Medical Center indicated that the veteran was receiving emergency care or services on February 4, 2004. The Board acknowledges the veteran's argument that the VA nurse told her to seek emergency treatment after the veteran described her symptoms over the phone. The veteran appears to be arguing that she was given authorization to go to the emergency room. However, in Smith v. Derwinski, 2 Vet. App. 378 (1992), the United States Court of Appeals for Veterans Claims (Court) noted that emergency medical care received from a non-VA medical facility requires authorization pursuant to 38 C.F.R. § 17.54 (formerly codified at 38 C.F.R. § 17.50d (1991)). The veteran in that case had argued that his non-VA care was authorized because his VA treating physician had informed him that arrangements were made for him to be treated at non-VA medical facility. The Court, in rejecting that contention, observed that the advice of a doctor to go to a non-VA hospital is not the specific type of authorization of payment which is contemplated in the VA regulation. In the instant case, as in Smith, it has not been contended that VA specifically agreed to pay the medical bills incurred at the private facility. Moreover, as in the Smith case, specific formalities which must be followed under 38 C.F.R. § 17.54 were not complied with here, as a result of which proper authorization from VA was not obtained. Therefore, the nurse recommendation over the phone is not considered prior authorization to seek treatment at a private facility, nor does it constitute competent medical evidence to determine that the veteran received emergency services on February 4, 2004 at Southwest Florida Medical Center. To prevail on her claim, one of the things the veteran needs to show is that, at the time in question, her condition 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. She has failed to establish this, however. The facts as they are known, as obtained through emergency department notes from February 4, 2004 and the veteran's own statements in August 2005, are as follows. February 4, 2004 private medical records show that the veteran complained of epigastric pain that began 6 days ago; the veteran's symptoms were described as mild. Apparently, she did not feel that this was an emergency that required immediate attention having waited six days to seek treatment. At her personal hearing, the veteran indicated that she was hurting so bad that she couldn't wait for an appointment at the VA; however, upon arriving at the emergency room, the severity of her symptoms was described as mild. The physical findings mentioned above from the emergency department physical report are again noted, and there were no serious conditions reported. Again, the report described her condition as non-urgent. Moreover, nowhere is there evidence that the veteran reasonably expected that the absence of immediate attention would have placed her in serious jeopardy. In fact, on several occasions, the veteran stated that she thought that the pain was caused by gas. Consequently, the Board finds that a prudent lay person would not have thought that a delay in seeking immediate medical attention would have been hazardous to her life or health. Since there was not a medical emergency, VA can not pay or reimburse for the services. 38 C.F.R. § 17.1002. ORDER Reimbursement or payment of the cost of medical treatment provided at Southwest Florida Medical Center on February 4, 2004 is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs