Citation Nr: 0812499 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-41 880A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Oklahoma City, Oklahoma THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred from April 18, 2003 to May 7, 2003. REPRESENTATION Veteran represented by: Michael Gassaway, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from May 1976 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July and December 2003 decisions of the VAMC in Oklahoma City, Oklahoma, which denied claims for reimbursement for unauthorized private medical care provided from April 18 to May 7, 2003. Evidence has been received subsequent to the final consideration of the claim by the RO. The veteran has waived RO consideration of that evidence. The Board may consider the appeal. 38 C.F.R. § 20.1304. The veteran testified before the undersigned at a June 2007 hearing at the RO. A transcript has been associated with the file. FINDINGS OF FACT 1. The veteran is currently service-connected for irritable bowel syndrome. 2. The veteran received emergent care for severe abdominal pain arising from a partial bowel obstruction on April 18, 2003. 3. A VA facility was feasibly available at the time of the veteran's transport to the Baptist Hospital Center in Oklahoma City, Oklahoma. CONCLUSIONS OF LAW The criteria for payment or reimbursement of unauthorized medical expenses arising from emergency care provided at a non-VA facility between April 18 and May 7, 2003 have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. The veteran was provided VCAA notification after adjudication of this case. The veteran has been represented by an attorney who argued the specific merits of the case and correctly identified the necessary elements to establish the claim in the March 2004 Notice of Disagreement. With such a showing of actual knowledge, there is no reasonable possibility that any notice or assistance would aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Thus, the Board finds that failure to provide timely VCAA notice was harmless error. II. Reimbursement for Unauthorized Private Medical Care Following a lipoma excision surgery at the Oklahoma City VAMC, the veteran developed severe abdominal pain. She was readmitted for abdominal distress from April 4 to April 14, 2003. The veteran returned to the emergency room on the morning of April 18, 2003. She was seen and diagnosed with a possible partial bowel obstruction. The veteran declined admission to the hospital and went to her mother's house. That evening, the veteran's abdominal distress became so severe that the veteran's mother called 911. An ambulance transported the veteran to the Baptist Integris Medical Center. She remained there from April 18 to May 7, undergoing surgery on April 20 to correct the bowel obstruction. In general, to establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.48(j); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were 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; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). The veteran is presently service-connected for irritable bowel syndrome. The medical care was for a bowel obstruction. While the veteran's bowel obstruction did not arise until after a lipoma surgery, the Board, resolving doubt in favor of the veteran, finds that the emergency care was for a service-connected disability. See 38 C.F.R. § 17.120(a), supra. The dispatch report from the ambulance indicates that the veteran's condition was emergent at the time of transport on April 18, 2003. The Board is satisfied by the evidence of emergent need for medical care. See 38 C.F.R. § 17.120(b), supra. The veteran testified before the undersigned that she did not remember being transported to the Baptist facility due to her pain and the medication she had been given while at VA that morning, in essence, arguing that she did not refuse VA, but that she had no choice in the matter. The April 18, 2003 dispatch ticket from EMSA shows that the veteran affirmatively requested the Baptist facility as the destination. The form also shows that the veteran claimed only VA insurance and was not unconscious or fainting. The form notes a delay in transport while the veteran made a transport decision. There is no indication that she was incapable from making a decision as to which hospital she wanted. The veteran was clearly aware of the presence of VA facilities nearby, as she had received substantial treatment from the VAMC and had been there earlier in the day. The VAMC was capable of treating her. The Board finds that the preponderance of the evidence shows that the veteran was able to choose the medical provider she desired and did exactly that. Accordingly, the Board finds that VA facilities were feasibly available for all services provided at the Baptist Integris Medical Center. Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49; see also Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); H.R. Rep. No. 93-368, at 9 (July 10, 1973) ("[The proposed provision a]uthorizes reimbursement of certain veterans who have service-connected disabilities, under limited circumstances, for reasonable value of hospital care or medical services . . . from sources other than the VA. Eligible veterans are those receiving treatment for a service-connected disability. . . . Services must be rendered in a medical emergency and VA or other Federal facilities must not be feasibly available."). Therefore, the Board concludes that the reimbursement claims fail under these provisions. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The Board notes that the Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non- Department facility to those veterans who are active Department health-care participants (enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. To be eligible for reimbursement under this law, all of the following conditions must be met: (a) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (b) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (c) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (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) The veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (f) The veteran is financially liable to the non-VA provider of the emergency 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; (h) The veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (i) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728, which applies primarily to emergency treatment for a service-connected disability. 38 C.F.R. § 17.1002 (2007). Since all criteria must be met, the claim must be denied if there is a failure to satisfy any single criterion. The veteran's remaining claims for reimbursement for unauthorized medical treatment from April 18 to May 7, 2003 fail here for the same reasons as under the prior discussion: VA facilities were reasonably feasible. The veteran chose not to go to VA, and she is responsible for that choice. As such, the Board finds that the preponderance of the evidence is against the veteran's claim for reimbursement for care received from April 18 to May 7, 2003. 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 for the cost of unauthorized private medical expenses incurred from April 18, 2003 to May 7, 2003 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs