Citation Nr: 0814668 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-20 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment of or reimbursement by the Department of Veterans Affairs (VA) for medical expenses incurred in connection with private medical services for the veteran from April 27, 2005 to April 29, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from December 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2005, August 2005 and April 2006 determinations of the Department of Veterans Affairs (VA) Medical Center in Mountain Home, Tennessee. The veteran testified before the undersigned Veterans Law Judge in December 2007. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran is not service connected for any disability. 2. The medical services he received in April 2005 at the Johnson City Medical Center were not authorized by VA. 3. A VA or other Federal facility/provider was feasibly available and an attempt to use them before hand would not have been considered unreasonable by a prudent lay person. CONCLUSION OF LAW The criteria for payment or reimbursement of private medical expenses incurred in April 2005 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 VCAA 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, a letter dated in April 2006 explained to the veteran that in order to substantiate his claim, there must be evidence showing that VA facilities were not feasibly available to provide the care to him. The letter explained how VA would assist the veteran and told him what he should do in support of his claim. The April 2006 letter was provided to the veteran after the initial adjudication of his claim. Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In connection with the current appeal, pertinent records have been obtained and associated with the record. The veteran has not identified additional evidence that might be obtained in support of his claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The veteran is seeking payment or reimbursement for the cost of private medical expenses incurred at Johnson City Medical Center on April 27, 2005 through April 29, 2005. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000- 17.1002 (the implementing regulations). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, 113 Stat. 1556. To be eligible for reimbursement under this Act 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 lay person 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 lay person 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 lay person (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 discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized); (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) The veteran has no contractual or legal recourse against a third party that could reasonably be pursued for or in part, the veteran's liability to the provider; and (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. In this case, a review of the record indicates that the veteran does not satisfy at least one of the requisite criterion set forth above, and thus reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 cannot be granted. See 38 U.S.C.A. § 1725(b); 38 C.F.R. § 17.1002(g). Specifically, a VA facility was feasibly available and an attempt to use it before hand would not have been considered unreasonable by a prudent lay person. The record reflects that the veteran was treated on the dates in question for coronary artery disease at Johnson City Medical Center. The veteran was transferred from Laughlin Memorial Hospital to Johnson City Medical Center on April 27, 2005. An April 26, 2005, medical report issued by Laughlin Memorial Hospital noted that the veteran's blood pressure was stable when the emergency rescue squad arrived to transport him. The veteran's blood sugar was normal and he did not have chest pains. Physical examination on that date noted regular heart rhythm and normal S1 and S2 without murmurs, gallops, clicks or prematures. A letter from physician H.W.A. dated in June 2006 maintained that the veteran was transported from Laughlin Memorial Hospital after experiencing several syncopal episodes. It was noted that the veteran was transferred to Johnson City Medical Center because it was determined that a cardiac catherization was in the veteran's best interest. H.W.A. noted that Johnson City Medical was the local hospital equipped to perform the procedure and it was medical necessary for the veteran to have appropriate treatment at the Johnson City Medical Center. The April 27, 2005, Green County EMS incident report noted that transport from Laughlin Memorial Hospital to Johnson City Medical Center was non- emergency. The veteran's discharge summary noted that due to syncope and nonsustained ventricular tachycardia, the veteran was felt to need a left heart catherization. The cardiac catheterization was performed on April 28, 2005. The impression at that time was 1 vessel coronary disease involving a severe and probably unstable lesion in the distal circumflex artery, mild coronary disease, mild reduction of left ventricular function, ejection fraction of 50 percent with inferior hypokinesis. The veteran was discharged in stable condition. In May 2005, February 2006, and July 2006 Mill Bill claim reports, it was recommended that VA payment be disapproved. It was noted in all three reports that Johnson City Memorial Hospital was one mile from the nearest VA facility. It was noted in the July 2006 Mill Bill claim report that the veteran was stable enough for transfer on April 27, 2005 and that the EMS report of April 27, 2005 reported non-emergency inbound and outbound but the veteran was later found to have significant dysrhtmia and coronary atherosclerotic disease. The February 2006 Mill Bill claim report noted that the VA facility was feasibly available and that there was no evidence that the VA facility was contacted to provide service. The March 2005 Mill Bill claim report noted no calls to VA to transfer. In light of the above, payment of or reimbursement by the Department of Veterans Affairs (VA) for medical expenses incurred in connection with private medical services for the veteran from April 27, 2005 to April 29, 2005 at Johnson City Medical Center are denied. The evidence shows that a VA facility was feasibly available and an attempt to use it before hand would not have been considered unreasonable since it was only a mile away from Johnson City Medical Center. While the Board is very sympathetic toward the veteran, it is bound by the law, and its decision is dictated by the relevant statutes and regulations. Because the veteran does not meet at least one of the criterion under 38 C.F.R. § 17.1002, reimbursement for any amount is prohibited. The Board need not go into whether the veteran meets any of the other criterion, as the failure to meet one of them precludes payment. Id. Accordingly, for the reason stated above, reimbursement for medical treatment on April 27, 2005 through April 29, 2005 under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 is denied. In reaching this determination, the Board has considered the veteran's contention that he was under the impression that he was approved by VA to be transported to Johnson City Medical Center. However, as mentioned earlier, there is no evidence that the nearest VA facility was contacted regarding this claim. The Board also notes that the veteran alleges that he was informed that the nearest VA facility does not perform the procedure that he needed and that it was possible that he may have been returned to the same facility. For purposes of the appeal, the Board accepts that this statement may be accurate. However, Congress has limited the availability of reimbursement to certain designated situations. The veteran's argument, even if true, is not a basis to award a benefit that Congress has not authorized. Lastly, the Board notes that the veteran is not service- connected for any disability. Therefore, he is not eligible for any other form of reimbursement. ORDER Entitlement to payment of or reimbursement by the Department of Veterans Affairs (VA) for medical expenses incurred in connection with medical services for the veteran from April 27, 2005 to April 29, 2005 is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs