Citation Nr: 0811900 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-00 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Shreveport, Louisiana THE ISSUE Entitlement to payment or reimbursement for the cost of private medical expenses incurred at Christus St. Michael Hospital from July 27, 2004, to August 2, 2004. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran served on active duty from July 1961 to June 1966. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the Department of Veterans Affairs Medical Center (VAMC) in Shreveport, Louisiana, which denied the benefit sought. FINDING OF FACT A VA facility was available on July 27, 2007, and an attempt to use such a facility would have been reasonable, sound, wise, or practicable. Treatment at a VA facility had been arranged, but the veteran elected to use a private vendor. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred from July 27, 2004, to August 2, 2004, have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-17.1002 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), 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. However, these changes are not applicable to claims such as the one decided herein. See Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the Court held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 17). At any rate, the veteran was provided with the notice required by the VCAA in a January 2005 letter. VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records and providing a personal hearing. Consequently, the duty to notify and assist has been met. Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The veteran filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Christus St. Michael Hospital from July 27 to August 2, 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). There is no evidence in this case, nor is the veteran claiming, that he 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, the VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, and 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-1008 (2007). Under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, 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) Whether en 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). 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. §§ 17.1000-1008 (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 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). Analysis The Board will briefly summarize the facts of this case. At the time of treatment from July 27 to August 2, 2004, the veteran was service-connected for diabetes mellitus, type II associated with herbicide exposure, peripheral arterial disease of both lower extremities due to diabetes mellitus, type II, and coronary artery disease due to diabetes mellitus, type II. VA physician's note on July 27, 2004, reflects that the veteran came to the clinic for left leg pain which started on July 26, 2004. The veteran gave a history of five bypass surgeries on left leg in private sector. The veteran stated that he always had pain in the left foot, but that it was localized to the calf yesterday and increased in intensity while walking with grandchild. The veteran was insulin dependent diabetic and has been on Coumadin 7.5 mg. daily. The assessment was history of five bypass surgery in private sector on left lower extremity with sudden increase in left leg pain with localization to the calf, with swelling yesterday. The examiner stated that he discussed with the veteran the need to refer to vascular/emergency in the Shreveport VAMC today, since their clinic could not get emergent doppler of the left. The veteran stated that his spouse could drive him there as soon as he left the clinic. There was an issue of whether he could take his grandchildren to Shreveport, which the veteran stated that he could do and if hospitalized, he could contact relatives to pick up the children. The examiner stated that the clinic coordinator in Shreveport VAMC was notified. VA addendum note for July 27, 2004, indicated that the veteran's spouse called, stating "We need you to cancel arrangements for us in Shreveport. He has decided to go local and they plan to put a stint in his leg. He still has some circulation in it." Records from St. Michael Health System and Collom & Cerney Clinic Association from July 27, 2004, to August 2, 2004 indicated that the veteran entered the hospital with an acutely occluded bypass graft on Coumadin. An arteriogram was performed on July 29, 2004, which showed the occlusion. According to a statement from Dr. Sorenson in October 2004, a distal bypass was not going to be successful. The veteran had an acutely ischemic leg that needed intervention. A left below knee amputation was performed on July 30, 2004, and he was hospitalized postoperatively and did well. He was discharged on August 2, 2004. In a September 2004 statement, a VA physician indicated that after reviewing the records, the veteran's admission was for a non-emergency, elective procedure, and VA facilities were available. In his October 2004 statement, Dr. Sorenson opined that the veteran was in an acute situation on July 27, 2004, and required immediate intervention so transfer to a VA facility was not possible. On review, the Board finds that the criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred form July 27, 2004, to August 2, 2004, have not been met under either 38 C.F.R. § 17.120 or 38 C.F.R. §§ 17.1000- 1008 (2007). In this regard, the Board finds that the preponderance of the evidence is against a finding that a VA facility was unavailable. The record clearly indicates that the veteran was informed by VA that a VA facility in Shreveport, Louisiana was available to treat him and that arrangements for treatment had been made. The VA addendum report clearly shows that the veteran was aware that VA facilities were available and that he voluntarily elected to use a private vendor. There is no indication in the record that VA refused care or treatment or that his condition was such that he could not be transported to the VA facility in Shreveport. VA record on July 27, 2004, indicates that the veteran reported having the ability to reach the VA facility in Shreveport. There is no evidence that an intervening medical emergency prevented him from reaching the VA facility in Shreveport. Under these circumstances, an attempt to use such a facility would have been reasonable, sound, wise, or practicable. The Board recognizes that the veteran's condition was such that immediate medical attention was required and that transfer from the private facility to a VA facility would not have been prudent. However, the applicable regulations are very specific and provide for payment or reimbursement only in certain circumstances, including that a VA or other Federal facility/provider was not feasibly available. Since this criteria is not met, the criteria for payment or reimbursement of unauthorized medical expenses incurred from July 27, 2004, to August 2, 2004, have not been satisfied. Additionally, the Board notes that the veteran's indicated in his notice of disagreement that he has private medical insurance. Thus, he would also be ineligible for reimbursement under See 38 C.F.R. § 17.1002(g) (2007). Based upon the above, the preponderance of the evidence is against the veteran's claim and the claim is denied. 38 U.S.C.A. §§ 1725, 1728; 38 C.F.R. §§ 17.120, 17.1002 (2007). ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs