Citation Nr: 0813949 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-16 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Tennessee Valley Health Care System, Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement for non-VA outpatient treatment and prescriptions, for an episode of care on June 16, 2005. (The veteran, the appellant herein, also has several issues pending from the VA Regional Office in Nashville, Tennessee. Those issues are the subjects of a separate decision of the Board.) ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from October 1966 to September 1969. The appeal comes before the Board of Veterans' Appeals (Board) from March 2006 and June 2006 letter decisions by the above Department of Veterans Affairs (VA) Health Care System (HCS), which is the agency of original jurisdiction (AOJ) in this matter. The HCS decisions denied, respectively, reimbursement for prescription drug expenses and medical service, both as associated with non-VA care administered to the veteran on June 16, 2005. FINDINGS OF FACT 1. On June 16, 2005, the veteran received private medical treatment without prior VA approval, for a non-emergency medical condition which was not of such nature that delay would have been hazardous to life or health. 2. The veteran made no effort to fill prescriptions written by the private physician on June 16, 2005, at a VA pharmacy. 3. The veteran's medical condition for which he received treatment and for which he was written prescriptions for medications on June 16, 2005, was not of an emergency nature necessitating his prompt filling of the prescription at a non-VA pharmacy, and delay in filling the prescription would not have been hazardous to his life or health . CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses for non-VA treatment administered on June 16, 2005, have not been met; the criteria for reimbursement for non-VA pharmaceutical expenses associated with that care are also not met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2007); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007). The Secretary has issued implementing regulations, setting out specific duties for notifying and assisting claimants in developing evidence. 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a) (2007). Those regulations, however, are applicable only to claims governed by 38 C.F.R. Part 3; thus, they do not apply to this case, in which the governing substantive regulations reside in Part 17 of title 38, Code of Federal Regulations. See 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001) (Supplementary Information: Scope and Applicability). Basic due process does, of course, apply in any VA claim, and in this regard the Board notes that in August 2007 the veteran submitted a document to the VA Regional Office in Nashville, Tennessee (at which office he has several other claims pending, of a no-medical nature), presenting multiple requests, among which was a request for a Decision Review Officer (DRO) hearing. However, in July 2007 the Tennessee Valley HCS sent him a statement of the case (SOC) addressing his appealed claim for reimbursement for medical procedures and prescriptions. He was then informed that the HCS, and not the Nashville RO, is the AOJ addressing these reimbursement issues, and that any pertinent statements or requests with regard to his medical reimbursement claim should accordingly be sent to the HCS. There is no indication in the August 2007 request for a hearing that the veteran desired a hearing to address the reimbursement issues on appeal. Further, the VA Form 9 he submitted in July 2007 to perfect his appeal of the reimbursement issue made no request for a hearing, and specifically indicated that no Board hearing was desired. He also then submitted additional evidence with waiver of initial consideration by the AOJ. That July 2007 waiver expressly asked that his appeal from the decision of the Tennessee Valley Health Care System, with the additional evidence, be forwarded directly to the Board for appellate consideration, without further review by the AOJ. In view of the foregoing, the Board concludes that the veteran effectively made no request for a hearing as to his appealed claim for reimbursment for medical and prescription expenses. II. Claim for Reimbursement for Medical Care and Prescriptions Obtained private medical records reflect that on June 16, 2005, the veteran received treatment at the facilities of a private ear, nose, and throat (hereinafter "ENT") specialist in Columbia, Tennessee, for complaints of a gradually worsening ear problem of three months' duration. The ENT noted that the veteran was acting normally, with normal communication and normal voice. Complaints included tinnitus, vertigo, and pressure of the ears. The ENT conducted a pertinent physical examination. Conditions not complained of, but detected, included mild tenderness of the temporomandibular joint, mild serpentine deviated nasal septum, bilateral inferior nasal turbinate hypertrophy, and a left thyroid mass. The ENT diagnosed cerumen impaction, acute external otitis, tinnitus, dizziness, allergic rhinitis, and thyroid mass. Treatment performed at the visit consisted of a left ear wash. The ENT prescribed Astelin and Ciprodex. At no point in the record did the ENT indicate or describe any identified condition as an emergency medical condition requiring immediate treatment, or otherwise threatening life or health if immediate care or immediate use of prescriptions were not performed. A medical billing statement for the above visit reflects that the veteran's primary insurance was then Medicare Part B, and that charges for the visit were $274.00 for the comprehensive examination and $71.00 for the cerumen removal, for a total bill of $345.00. Of that bill, Medicare allowed a total charge of $207.83, effecting a Medicare adjustment of $137.17. The medical billing statement informs that $19.57 was paid by the patient, and that $110.00 was applied to a deductible. Thus, the patient (the veteran) paid out-of- pocket a total of $129.57 (the $19.57 "co-pay" plus the $110.00 applied toward the Medicare Part B deductible). The record shows that within two days after the June 16, 2005, ENT examination and treatment, the veteran submitted a request for VA authorization of reimbursement for that examination and treatment. The Board must therefore consider whether deemed prior authorization was in order for those medical services, under 38 U.S.C.A. § 1703 (West 2002 & Supp. 2007); 38 C.F.R. §§ 7.52, 17.53, and 17.54 (2007), for medical services at a non-VA facility on June 16, 2005. This is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). In the case of an emergency that existed at the time of admission, an authorization may be deemed to be a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. In this case, however, the weight of the evidence is to the effect that no emergency existed. The private medical record reflects the veteran's self-report that the symptoms referable to his left ear condition had been gradually increasing over three months, without any noted emergency. A reasonable person in the veteran's position could thus not conclude that the condition was emergent or an emergency at the time he sought care on June 16, 2005. Further, there is no indication in the treatment record that the veteran was in distress or otherwise perceived there to be any immediate medical danger. To the contrary, the ENT expressly noted that the veteran was acting normally, with normal communication and normal voice. In addition, no emergent medical condition was found. Although the veteran was immediately treated for ear wax impaction, otitis externa, and allergic rhinitis, the medical record does not reflect that any of those conditions was of a severe or extreme or imminently hazardous nature. All of these factors, taken together, present a picture of a clearly non-emergent, non-emergency condition. Regarding a notation of identified lump on the thyroid, it is significant to note that the veteran had not sought care for that condition, or identified it to the ENT, and the ENT did not identify the condition as emergent or requiring immediate or emergency treatment. Accordingly, there was no evidence showing a medical emergency to support deemed prior authorization. The Board must therefore conclude that weight of the evidence is against retroactively finding that the veteran had prior authorization for the private medical treatment received on June 16, 2005. Hence, such authorization may not be deemed to have been obtained pursuant to 38 C.F.R. § 17.54, and payment on that basis is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703. 38 C.F.R. § 17.54; See also Smith v. Derwinski, 2 Vet. App. 378 (1992) (appropriate authorization not found even though the veteran was advised by VA physician that private treatment had been arranged). Reimbursement for expenses not previously authorized is permitted only under the following circumstances: (a) treatment was for (1) an adjudicated service-connected disability; (2) a non-service-connected disability associated with and held to be aggravating an adjudicated service- connected disability; (3) any disability of a veteran who is permanently and totally disabled as a result of a service- connected disability; or (4) a veteran who is participating in a vocational rehabilitation program; and (b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The U.S. Court of Appeals for Veterans Claims (Court) has observed that, given Congress's use of the conjunctive "and" in the statute, all three statutory requirements would have to be met before reimbursement could be authorized. Malone v. Gober, 10 Vet. App. 539, 547 (1997). In this case, the claim critically fails under criterion (b), in that there is no showing of a medical emergency of such a nature that delay in rendering treatment would have been hazardous to life or health. The veteran has presented some arguments, including that he did not feel himself capable, due to his medical condition, of traveling the distance to the VA medical facility, in part due to dizziness associated with his condition. However, such a reason does not meet criterion (b). It is not sufficient that the veteran be impaired or possibly impaired from making the trip to a VA facility, because that does not itself present a medical emergency. In the absence of a medical emergency, the veteran was capable of contacting a VA medical facility and seeking prior authorization from the appropriate party at that facility, to receive private care based on this medical incapacity. There is no allegation or indication that the veteran sought such prior authorization, and as noted above, the authorization he sought, while within the time frame for potentially deemed prior authorization, did not produce such prior authorization from appropriate VA authority precisely because the criteria for such prior authorization were not met. Because of the conjunctive nature of the (a), (b), and (c) requirements for medical reimbursement under 38 C.F.R. § 17.120, the veteran's failure to meet criterion (b) is fatal to his claim. Malone. Accordingly, the preponderance of the evidence is against the veteran's claim for reimbursement for medical expenses associated with his June 16, 2005, private medical visit. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. Nevertheless, even if the criteria for payment or reimbursement of medical expenses are not met under 38 U.S.C.A. § 1728, payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. 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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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. Again, this criteria is conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). As above, without the Board here considering the other criteria, the claim here fails because the preponderance of the evidence is to the effect that a reasonably prudent lay person in the veteran's situation would have considered it feasible to request prior authorization for the VA treatment the veteran received on June 16, 2005, because there was no pressing medical emergency at that time. Hence, the claim fails criteria (b) and (c) of 38 C.F.R. § 17.1002. The preponderance of the evidence is against the claim for reimbursement for non-VA care afforded the veteran on June 16, 2005, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the claim for reimbursement for prescriptions obtained through non-VA pharmacies as associated with the care rendered on June 16, 2005, specifically the medications prescribed by that ENT, the Board notes that the criteria for emergency treatment may be considered, but the Board has already considered those criteria, hereinabove, and found the veteran's case to be lacking in the requisite emergency or emergent medical condition to satisfy them. 38 U.S.C.A. §§ 1703, 1725, 1728; 38 C.F.R. §§ 17.54, 17.120, 17.1000-1003. In addition, guidelines relevant to obtaining prescription medications are found in VA Manual M-1, Part 1. These guidelines in part stipulate that prescriptions may be filled by VA pharmacies based on local formularies (Paragraphs 16.64(b), 16.65). Paragraph 16.65(a) provides that VA clinics will determine whether the prescriptions will be filled in the pharmacy, whether the veteran is authorized to fill such on his own on an emergent basis, and whether one- time prescriptions may be filled on a fee basis. Paragraph 16.65(b)(1) stipulates that "VA pharmacies will be used for filling of staff and non- emergent fee-basis physicians' and dentists' prescriptions to the extent practical, consistent with the needs and best interests of patients and which can be provided more economically by the VA. This is applicable particularly to prescriptions for stabilized conditions or those of a recurring nature (such as those for chronic patients treated with the same drug from month to month) in which the patient's medication needs can be determined sufficiently in advance to provide for uninterrupted prescription services from a VA pharmacy." M-1, Part I, paragraph 18.76(d) provides that fee-basis prescriptions will only be filled with VA formulary medication and that any prescriptions presented to the VA pharmacy for medications that are not on the VA formulary, and for which no request to deviate from the use of the VA formulary was received, will be reviewed by the Chief, Pharmacy Service, who will then contact the private, fee- basis physician concerning substitution with a VA formulary medication. M-1, Part I, Paragraph 18.71 provides for reimbursement where veterans have paid for medications 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." Legislation providing for medical treatment benefits for veterans, to include the above, contemplates that government facilities, which are especially maintained for that purpose at considerable expense, shall be used to the fullest extent possible. See 38 U.S.C.A. § 1703 (West 2002). Whether or not the medications at issue herein are on the pharmacy formulary at theTennessee Valley HCS, or are recurrent in nature, the veteran must recognize that he is entitled to medical care at the VA Medical Center, to include obtaining any medication ancillary to such treatment from the in-house pharmacy. The Board concludes that the veteran made no effort to have the prescriptions in question filled by a VA Medical Center pharmacy. The veteran has presented no evidence that he sought to fill the prescriptions in question through VA facilities, and has made no such allegations. It may reasonably be inferred (including based upon the veteran's self-representation and his voluminous submissions, including many varying legal and factual arguments on numerous issues at various stages of development and appeal, with arguments based upon specific citations to VA law and regulations) that, if he had in fact made any such efforts for the prescriptions in question, he would have mentioned them. The VA treatment records in the file also document no such efforts. Considering the foregoing, the Board again notes that the weight of the evidence is against the veteran's medical situation for which he sought treatment on June 16, 2005, being of an emergency nature necessitating his prompt filling of the prescription at a non-VA pharmacy. This conclusion of non-emergency is even stronger in the case of filling the prescriptions, because the veteran had already sought and received medical care, and the treating ENT conducted an examination and neither found emergency conditions to be present nor expressed any urgency in the record regarding the veteran's need for the prescribed medications. Further, the ENT treated the veteran by clearing the ear in question of impacted cerumen, thus relieving, at least in part, the medical condition for which the veteran sought care. Accordingly, the Board finds the preponderance of the evidence against the veteran's situation being of such a nature as to require prompt treatment and thus prompt filling of the prescriptions provided by the ENT on June 16, 2005. Hence, no emergency may reasonably have been concluded to have been present to preclude filling the prescriptions at a VA pharmacy. The preponderance of the evidence is against the claim for reimbursal of pharmaceutical costs incurred by filling the prescriptions of June 16, 2005, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Reimbursement for costs of medical care administered on June 16, 2005, and for costs of prescriptions written upon that care, is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs