Citation Nr: 1019302 Decision Date: 05/25/10 Archive Date: 06/09/10 DOCKET NO. 08-03 416A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Nebraska- Western Iowa Health Care System THE ISSUE Entitlement to payment or reimbursement for medical care and services rendered at Alegent Health Midlands on July 22, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from November 1976 to June 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 decision of the Department of Veterans Affairs (VA) Nebraska-Western Iowa Health Care System. FINDINGS OF FACT 1. The Veteran received care at a private facility for a condition diagnosed as muscle cramping on July 22, 2007. 2. The care was for a service connected disability or authorized in advance, and VA medical facilities were feasibly available. 2. The Veteran's care on July 22, 2007 was not rendered in a medical emergency, nor was the initial evaluation and treatment 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. CONCLUSION OF LAW The requirements for payment or reimbursement for medical care and services rendered at Alegent Health Midlands on July 22, 2007 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.130, 17.1002 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of a letter from the VA to the Veteran dated in November 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 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). The VA also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the VA aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Factual Background Review of the record reveals that service-connection is in effect for disabilities consisting of: diabetes mellitus Type II, peripheral neuropathy affecting the right and left upper and lower extremities - related to diabetes; and for right and left shoulder capsulitis with bursitis - associated with diabetes; for which a combined evaluation of 90 percent has been in assigned, effective from October 2002. An emergency record from Alegent Health/Midlands Hospital (MH) in Papillion, Nebraska, indicates that the Veteran presented himself on July 22, 2007, with primary complaints of muscle cramping, following mowing the lawn earlier in the day. The Veteran reported that he had ingested a pot of coffee and 5 bottles of water during the day and indicated that everything (walking/sitting/standing) made the cramping worse. He described his muscle cramping and pain as 7/10. He provided a history of frequent muscle cramping for several years, usually only lasting for 5 minutes, and indicated that the cramping had been associated with diabetes by health care providers at VA. The examining physician indicated that the Veteran was in no acute distress, but was pacing the room so that cramping would not return. Physical examination revealed essentially no abnormalities, with slightly low glucose shown on lab testing. The Veteran was treated with a liter of fluids and Valium. He was also given some orange juice and crackers. Muscle cramping was diagnosed and the Veteran was discharged home on the evening of July 22, 2007, with a prescription for Valium and instructions to follow up with his VA physician in the morning. In a statement from the Veteran dated in November 2007, he indicated that he was taken to the emergency room at MH due to severe cramping. He explained that the cramping made it impossible for him to ride in a vehicle for more than 5 minutes, without stopping to get out and stretch, indicating that travel down another route (presumably) to a VA facility would have been unbearable. The Veteran indicated that he had spent many days at home and at work suffering from cramping, noting that he had suffered from this problem for about 4 years and that VA was aware of the problem attributing it to diabetes, but had not addressed the complaints until recently. In February 2008, the Veteran provided a second statement explaining that on July 22, 2007, he developed severe cramping of the entire body after mowing the lawn on a riding lawn mower. He indicated that he had previously sought VA treatment, apparently for cramping, and had been told that testing was normal and that the cause of the cramping could not be determined. It appears that after suffering from cramping for 2 hours, the Veteran determined that he needed to be seen at the emergency room and was driven by his wife to Bellevue Emergency Room (BER). BER was unable to provide any recommendations or relief, and they sent him to MH, instead. The Veteran stated that he wanted to go to the VA Hospital on 42nd Street, but because there were few places to stop to get out in the event of cramping, he and his wife continued on to MH, requiring 3 stops on the way there to get out and relieve cramping by walking. The Veteran indicated that he felt he made the right choice for his safety and that of the other drivers. The Veteran and his spouse provided testimony at a BVA hearing held in March 2010. The Veteran stated that after doing yard work and mowing the grass, he experienced cramping, specifically in the stomach, which would not resolve. He stated that later that day he sought treatment at an emergency room; initially presenting at Bellevue, the closest facility. He explained that Bellevue was not able to perform blood work and he was sent to Alegent/MH, with his wife driving. The testimony reflects that the Veteran did not go to VA for treatment and that during his drive to MH, he needed to get out several times to walk around prior to arriving at MH. At MH, the cramping was treated with Valium and resolved. The Veteran's spouse indicated that she did not consider taking the Veteran to a VA facility because the road was bumpy and there was nowhere to pull off if necessary. The Veteran indicated that he had suffered from cramping for about 7 years and primarily received treatment from VA. Analysis The Veteran maintains that entitlement to payment or reimbursement for medical care and services rendered at Alegent Health Midlands on July 22, 2007, is warranted. There are two statutes that provide for payment or reimbursement for medical care at private medical facilities, specifically, 38 U.S.C.A. § 1728 and § 1725. In either case, the admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. See 38 C.F.R. § 17.54. The implementing regulation for 38 U.S.C.A. § 1728, 38 C.F.R. § 17.120, provides circumstances under which the not previously authorized medical services may be paid. In pertinent part, the regulation provides that payment or reimbursement may be paid: (a) For an adjudicated service- connected disability; a non-service connected disability associated with and held to be aggravating an adjudicated service-connected disability; or for a disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (b) the care and services not previously authorized were 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 before hand 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 C.F.R. § 17.120. The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, "all three statutory requirements would have to be met before reimbursement could be authorized." See Malone v. Gober, 10 Vet. App. 539, 542 (1997). Another avenue for repayment is provided under 38 U.S.C.A. § 1725 and is known as the Millennium Bill. It provides criteria under which payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities will, under certain conditions, be provided. The regulation that implements the Millennium Bill, 38 C.F.R. § 17.1002, outlines nine conditions that must be met before payment or reimbursement of emergency services in non-VA facilities may be made. Failure to satisfy any of the criteria listed below precludes VA from paying unauthorized medical expenses incurred at a provide facility. See 38 C.F.R. § 17.1002. Among these conditions are: (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 beforehand 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); and (i) a 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). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board finds that entitlement to payment or reimbursement of unauthorized medical expenses rendered at Alegent Health/MH on July 22, 2007 is not warranted. The Veteran has not contended that the care and services were previously authorized. The Veteran receives compensation for diabetes and several associated conditions including peripheral neuropathy of both the upper and lower extremities, bilaterally. The treatment in question was for cramping, which the Veteran reports has been associated by VA health care professionals to his diabetes. Therefore, the Board finds that the cramping, which has been etiologically linked with service-connected diabetes, could possibly be considered a non-service connected disability associated with and held to be aggravating an adjudicated service-connected disability, pursuant to 38 C.F.R. § 17.120(a). The VA Nebraska-Western Iowa Health Care System denied the claim on the basis that VA facilities were feasibly available to provide the care sought on July 22, 2007. The Veteran's disagreement with the denial of payment or reimbursement is based on the contention that his symptoms were of such a nature that it was not feasible to be treated at a VA facility. As such, the Board will primarily evaluate this appeal on this basis. However, also pertinent in this case is whether the treatment at issue was in effect, emergent. The VA Nebraska-Western Iowa Health Care System considered the claim both under the criteria for a service-connected disability and under the Millennium Bill. Although the standards are somewhat different, each set of criteria require that the treatment not simply be for routine care. Under the criteria for a service connected disability, the regulation requires that the care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health. See 38 C.F.R. § 17.120(b). Under the Millennium bill, the regulation provides the treatment must be 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. The regulation, as outlined above, further describes this element and makes clear that this is a modified subjective standard, and that acute symptoms such as severe pain may lead the Veteran to conclude that the failure to seek immediate medical attention would result in placing his health in serious jeopardy. See 38 C.F.R. § 17.1002(b). The primary symptoms treated at MH on July 22, 2007, were cramping; symptoms which the Veteran's reports have been present for several years previously. The evidence, including the treatment records of July 22, 2007, does not reflect that the Veteran's condition was of such a nature that any delay in seeking immediate medical attention would have been hazardous to life or health. Accordingly, one of the requisite criteria under 38 C.F.R. § 17.120(b) set forth above is not met. See 38 U.S.C.A. § 1728. Similarly, there is no indication that any delay in seeking immediate medical attention would have been, in the judgment of a prudent layperson, hazardous to life or health, nor do either the Veteran or his spouse so contend. Accordingly, one of the requisite criteria set forth above, 38 C.F.R. § 17.1002(b), is not met. See 38 U.S.C.A. § 1725. Thus, there is no basis for finding a finding that an emergency situation under either the standard forth in 38 U.S.C.A. § 1725 and 1728. See 38 C.F.R. §§ 17.120, 17.1002. As discussed above, the treatment records themselves do not describe an emergent situation, nor have the Veteran or his spouse in statements and testimony described the cramping as an emergent condition (as defined herein for VA purposes). Therefore, the record does not provide a basis for finding that the private treatment provided met the criteria listed in 38 C.F.R. § 17.120(b) or 38 C.F.R. § 17.1002(b). As this element is not met under either set of criteria, the claim for payment or reimbursement is not substantiated. Nevertheless, the primary basis for the denial of the claim was a finding that a VA facility was feasibly available for the Veteran's care on July 22, 2007. Accordingly, the other pertinent inquiry in this case is, under 38 C.F.R. § 17.1002(c) and 38 C.F.R. § 17.120(c), whether a VA or other Federal facility/provider was feasibly available and whether an attempt to use them before hand would not have been considered reasonable by a prudent layperson. The provisions of 38 C.F.R. § 17.53, also for application, state that a VA facility may be considered as not feasibly available when the urgency of the applicant'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. For example, a VA facility would not be feasibly available if there were 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. See 38 C.F.R. § 17.1002(c). The record in this case establishes, per the Veteran's own report, that he has experienced cramping symptoms for years, which have been primarily treated by VA. In statement provided in 2008, he expressed some frustration with the fact that these symptoms could not be resolved with treatment nor could the source of the problem be identified, other than the fact that the symptoms were attributed by VA medical personnel to his service-connected diabetes. In any event, there is no indication that a VA facility was not feasibly available to treat symptoms of cramping as had been done on previous occasions, nor does the Veteran so maintain. The Veteran and his spouse contend that issues of the Veteran's comfort and safety dictated the decision to seek treatment for cramping at a private facility. However, the critical inquiry involves whether a VA facility was feasibly available to attend to the Veteran's care. Evidence on file reflects that the distance from the Veteran's home address to the nearest VA facility in Omaha, NE, was 9.72 miles (or approximately 16 minutes from his home). The distance from the Veteran's home address to MH was 8.47 miles (or approximately 15 minutes from his home). Hence, the relative distance between the facilities is negligible, and there is no indication that distance is a factor impacting the feasibility analysis. The Veteran was not transported by ambulance on July 22, 2007; he was transported in an automobile by his wife. The Veteran and his spouse have provided information to the effect that the decision to take the Veteran to a private facility for treatment of his cramping was based on the fact that the road to the VA facility was rougher and bumpier, with fewer places to get out of the car. The decision to do so represents a choice or preference made in conjunction with considerations of comfort and convenience, not a decision dictated by the infeasibility of obtaining care at a VA facility. No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130 (2009). Neither the distance involved nor availability of care are factors in this case. As such, the Board finds that a VA medical facility was feasibly available to provide the treatment in question, and should have been used, as it was reasonable to do so given the circumstances, which involved treatment for a non-emergent condition. The Board recognizes that there are financial difficulties that arise from unexpected medical expenses. However, while the Board is sympathetic toward the Veteran, it is bound by the law, and this decision is dictated by the relevant statutes and regulations. As the evidence of record shows that the condition treated on July 22, 2007, was not emergent and that a VA facility was feasibly available, the Board is without authority to grant benefits. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, the Board must find that the Veteran is not eligible to receive reimbursement for the reasonable value of the treatment in question under the provisions of 38 U.S.C.A. §§ 1725 or 1728. For these reasons and bases, the preponderance of the evidence is against the Veteran's claim, so there is no reasonable doubt to resolve in his favor, and his claim must be denied. 38 C.F.R. §§ 3.102, 4.3; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Payment or reimbursement for medical care and services rendered at Alegent Health Midlands on July 22, 2007, is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs