Citation Nr: 0917161 Decision Date: 05/07/09 Archive Date: 05/12/09 DOCKET NO. 07-37 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Wichita, Kansas THE ISSUE Entitlement to payment or reimbursement for non-service- connected unauthorized private medical expenses on January 29, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Dylan R. Kytola, Law Clerk INTRODUCTION The Veteran had active duty military service from February 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision by the Department of Veterans Affairs (VA) Medical Center in Wichita, Kansas. The Veteran had a hearing before the undersigned Board Member in March 2009. A transcript of that hearing is contained in the record. FINDINGS OF FACT 1. The Veteran was stable upon his discharge from Susan B. Allen Memorial Hospital on January 29, 2007, and could have been transferred to an available VA facility in Wichita. 2. The Veteran was transported to and treated for chest pain at Wesley Medical Center on January 29, 2007, without authorization from VA; his condition during this time was non-emergent. CONCLUSION OF LAW The requirements for payment or reimbursement for unauthorized private medical expenses, including transfer and treatment for chest pain at Wesley Medical Center on January 29, 2007, are not met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1002 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it generally must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2008). As an initial matter, the Board notes that in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23,353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board observes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim decided herein. An August 2007 letter expressly told him to provide any relevant evidence in his possession. See Pelegrini II, 18 Vet. App. at 120. After careful review of the claims folder, the Board finds that the letter dated in August 2007 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the August 2007 letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. The letter also requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records such as medical records, employment records, and records from other government agencies. The Board notes that the August 2007 letter was sent to the Veteran after the April 2007 decision. However, to the extent that the notice was not given prior to the initial adjudication of the claim in accordance with Pelegrini II, the Board finds that any timing defect was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided to the Veteran in August 2007 fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, simultaneously with providing the notice, the case was readjudicated and a statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2008). In this regard, the Veteran's relevant treatment records are associated with the claims file. The Veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. II. Analysis The Veteran in this case sought emergency medical treatment at Susan B. Allen Memorial Hospital in El Dorado, Kansas, on January 29, 2007, after experiencing chest pain. Later that day, the Veteran was transferred by ambulance from Allen Memorial Hospital to Wesley Medical Center in Wichita, Kansas. Thereafter, and also on January 29, 2007, the Veteran was transferred by ambulance to the VA Medical Center in Wichita. The Veteran was diagnosed with acute coronary syndrome and a possible myocardial infarction. The Veteran stated at his March 2009 hearing that he has already been granted payment or reimbursement for expenses incurred at Allen Memorial Hospital and for transportation expenses from Wesley Medical Center to the VA Medical Center in Wichita. Thus, the Board will consider whether payment or reimbursement is warranted for expenses incurred at Wesley Medical Center and for transport to Wesley Medical Center from Allen Memorial Hospital. Under 38 U.S.C.A. § 1725 (West 2002), VA is authorized to reimburse eligible veterans for the reasonable value of emergency treatment furnished in a non-Department facility. To be eligible, the veteran must be an active Department health-care participant who is personally liable for the emergency treatment furnished. In cases where reimbursement is warranted, payment may be made directly to the hospital or other health care provider that furnished the treatment, or to the person or organization that paid for such treatment on behalf of the veteran. Id. For purposes of this section, the term "emergency treatment" means medical care or services furnished, (a) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (b) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (c) until such time as the veteran can be transferred safely to a Department facility or other Federal facility. Id. A VA treatment center is not "feasibly available" if the urgency of the veteran's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. § 17.53 (2008). This determination should be made in the context of whether an attempt to use a VA or federal facility would be reasonable, sound, wise or practical. 38 C.F.R. § 17.120 (2008). A prudent layperson is one who possesses an average knowledge of health and medicine and would reasonably expect the absence of immediate medical attention to result in serious jeopardy to the individual's health, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b). Upon examination of the evidence, the Board finds that a preponderance of the evidence is against the Veteran's claim. Primarily, the Board finds that the Veteran was stable and no longer in a state of medical emergency when he was transferred to Wesley Medical Center. As stated above, even when a Veteran reasonably seeks treatment for a medical emergency at a private facility, the period of emergency only lasts until the veteran can be transferred safely to a VA facility or other Federal facility. 38 U.S.C.A. § 1725. A discharge report from Allen Memorial Hospital shows that the Veteran was stable upon his discharge to Wesley Medical Center. Thus, he could have been transported directly to the VA Medical Center in Wichita. Further, the Veteran stated at his March 2009 hearing that his cardiologist made the decision to transfer him to VA immediately upon seeing him at Wesley Medical Center. Records from Wesley Medical Center state that the Veteran was transferred to VA from Wesley because of "insurance issues." This evidence indicates that the Veteran did not need to be admitted to Wesley Medical Center for any medical reason, and that he should have been transferred from Allen Memorial Hospital in El Dorado directly to VA. The Board also finds that payment or reimbursement for ambulance expenses from Allen Memorial Hospital to Wesley Medical Center is not warranted. Under 38 C.F.R. § 17.1003 (2008), emergency transportation expenses are only warranted when payment or reimbursement has been authorized for emergency treatment at the destination facility. Since the Board has determined that the Veteran is not eligible for payment or reimbursement for emergency treatment incurred at Wesley Medical Center, payment or reimbursement for transport to Wesley Medical Center must be denied. In sum, a preponderance of the evidence demonstrates that the Veteran's admission to Wesley Medical Center on January 29, 2007, was a non-emergent situation and the nearest VA facility was feasibly available for use. Thus, the benefit of the doubt rule does not apply and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Payment or reimbursement for unauthorized private medical expenses at Wesley Medical Center, to include transfer from Allen Memorial Hospital on January 29, 2007, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs