Citation Nr: 1010175 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 08-29 919A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on July 12-13, 2005. ATTORNEY FOR THE BOARD Evan Deichert, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 administrative decision by the Department of Veterans Affairs (VA) James A. Haley Veterans Hospital in Tampa, Florida. The appellant is the authorized representative of the private hospital at which the Veteran received treatment for the period at issue. FINDINGS OF FACT 1. On July 11, 2005, the Veteran presented to a VA outpatient clinic complaining of chest pain, fatigue, and numbness in his mouth, from which he was transferred by ambulance to the emergency room of the Wuesthoff Memorial Hospital, where he was admitted. 2. On the afternoon of July 12, 2005, the Veteran underwent cardiac catheterization, which revealed significant de novo lesion beyond a stent already in place which was stented with a small Taxus stent. 3. The Veteran was discharged from the Wuesthoff memorial Hospital the morning of July 13, 2005. 4. The Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since August 2004 for seven service connected disabilities: post- traumatic stress disorder; arteriosclerotic heart disease; diabetes mellitus; peripheral neuropathy of the right lower extremity; peripheral neuropathy of the left lower extremity; tinnitus; and bilateral hearing loss. 5. VA approved reimbursement for expenses incurred on July 11, 2005, in the amount of $5,185.46. 6. A VA physician has determined that after July 11, 2005, the Veteran's condition had stabilized and VA facilities were feasibly available for care, and transfer to a VA medical center could have been safely effected. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on July 12-13, 2005 have not been met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.121 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the applicable laws and regulations, VA is authorized to pay or reimburse a limited group of Veterans for emergency treatment for service- connected disabilities. The statute set out at 38 U.S.C.A. § 1728 requires: (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. § 17.47(i) (2009); 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. If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). Claims for payment or reimbursement of the costs of emergency hospital care or medical services not previously authorized will not be approved for any period beyond the date on which the medical emergency ended. 38 C.F.R. § 17.121. For the purpose of payment or reimbursement of the expense of emergency hospital care or medical services not previously authorized, an emergency shall be deemed to have ended at that point when a VA physician has determined that, based on sound medical judgment, a veteran: (a) Who received emergency hospital care could have been transferred from the non-VA facility to a VA medical center for continuation of treatment for the disability, or (b) Who received emergency medical services, could have reported to a VA medical center for continuation of treatment for the disability. Id. The record reflects that the Veteran was transported via ambulance to the emergency room at a private hospital (Wuesthoff Memorial Hospital ) in Rockledge, Florida on July 11, 2005. Records from this visit show that the Veteran complained of chest pain off and on for a few weeks prior. He sought treatment at the VA outpatient clinic in Viera, Florida, complaining of chest pain, fatigue, and numbness in his mouth and was transported directly to the hospital from that clinic. The hospital admission report indicates that the Veteran has had six stents placed over four visits in the preceding 20 months. The Veteran underwent cardiac catheterization the next afternoon, and was released on July 13, 2005. The treatment the veteran received during that time apparently was not authorized in advance by VA. In a January 2008 administrative decision, the Veteran's claim was partially approved and partially denied. His claim for care received on July 11 was approved. The Chief Medical Officer (CMO) denied his claim for reimbursement for July 12 and 13. This denial was based on the fact that the Veteran had cardiac tests done at the private facility, though he could have been transported to a VA facility to determine the need for such a test or to have any tests conducted there. Again, under 38 C.F.R. § 17.121, a claim for reimbursement will not be approved when a VA physician determines that, based on his sound medical judgment, an emergency has ended. Such a situation is before the Board. While the appellant in this case has summarized the medical evidence well, it has not made any findings or advanced any arguments as to why an emergency still existed on July 12 and 13. There is no showing of why any care could not be given at a VA facility, or why any tests or operations could not have received prior approval. Absent these arguments, the only evidence that the Board has to weigh is the opinion of the CMO. As a VA physician stated that the emergency had ended and that the Veteran had stabilized, the Board concludes the criteria for payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on July 12-13, 2005 have not been met. 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120, 17.121. Finally, 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court of Appeals for Veterans Claims held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits, when those statutes and regulations contain their own notice provisions. The provisions of Chapter 17 of the Title 38 of the United States Code and Code of Federal Regulations contain their own notice requirements, so the provisions of the VCAA are thus not applicable. ORDER Payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on July 12 and 13, 2005 is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs