Citation Nr: 1034755 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 09-16 260 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (MC) in Gainesville, Florida THE ISSUE Entitlement to reimbursement of medical expenses the Veteran incurred for surgery at Laser Spine Institute on December 16, 2008. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active military service from February 1965 to July 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2009 decision in which the VAMC denied reimbursement of medical expenses the Veteran incurred for surgery at Laser Spine Institute on December 16, 2008. The Veteran filed a notice of disagreement (NOD) in February 2009, and the VAMC issued a statement of the case (SOC) in March 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in April 2009. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran incurred medical expenses for surgery at Laser Spine Institute on December 16, 2008; these expenses were not authorized by VA. 3. The evidence does not show that the surgery was rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. CONCLUSION OF LAW The criteria for reimbursement of medical expenses the Veteran incurred for surgery at Laser Spine Institute on December 16, 2008, are not met. 38 U.S.C.A. §§ 1703, 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.52, 17.54, 17.120, 17.130, 17.1000, 17.1002 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the VAMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in the January 2009 decision letter, the VAMC notified the Veteran that reimbursement had been denied because it was determined that the surgery performed was elective and required approval from the VA's clinic of jurisdiction (COJ). On the same day as the decision was issued, the VAMC sent a letter to the Veteran notifying him of what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 in effect prior to May 30, 2008). The letter also included, as an attachment, a copy of the VCAA's statutes and regulations. The March 2009 SOC provided notice of the criteria for authorization of hospital care and medical services in non-VA facilities, and the necessity for prior authorization. To whatever extent the above notice does not meet Peligrini's content of notice requirements or the VCAA's timing of notice requirement, the Board finds that such deficiency does not constitute prejudicial error in this case because of evidence of actual knowledge on the part of the Veteran. In this regard, in his NOD, the Veteran argued that the surgery was not "elective", but was "emergent." He said that the information regarding the surgery was submitted to a VA employee in advance who told him he was "good to go." In his substantive appeal, the Veteran argued that he had submitted a request for authorization prior to the surgery, but no action was taken. He said that he telephoned a VA employee several days before the surgery and was advised that he did not have fee approval yet, but that VA did have all of his data and that he was "good to go." Hence, the Veteran has demonstrated an awareness of the evidence necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Consequently, any error in content or timing of the notice was cured by actual knowledge on the part of the Veteran, and was, thus, not prejudicial. Id. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's private treatment records from Laser Spine Institute and South Georgia Medical Center, and a referral form from the Veteran's primary care provider (Moody Air Force Base (AFB)). Also of record and considered in connection with the appeal is VA's Reports of Contact, and the various written statements provided by the Veteran. No further VAMC action on this matter, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the VAMC, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which it might obtain such evidence, and the allocation of responsibilities between itself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran is seeking reimbursement of medical expenses he incurred for surgery at Laser Spine Institute on December 16, 2008. Initially, the Board notes that, in adjudicating a claim for reimbursement of medical expenses, VA must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received in a private facility. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). The Board points out that the Veteran has a combined service- connected disability rating of 100 percent and is considered permanently and totally disabled from a service-connected disability. Hence, he is eligible, in certain circumstances, for the authorization of non-VA medical care, pursuant to 38 C.F.R. § 17.52(a)(1)(iii). In this case, private treatment records from South Georgia Medical Center dated in April 2005 reflect that the Veteran had a herniated cervical disc, spondylosis, stenosis, and instability, which resulted in cervical radiculopathy. Apparently anterior cervical fusion surgery was recommended, but not performed. In his substantive appeal, the Veteran said that because of the risks of surgery, he chose to seek a second opinion, which he did in July 2008. A November 24, 2008 computer printout reflects that the Veteran's primary care provider (Moody AFB) noted that the Veteran was treated for chronic back pain at the Lake City VA. It was noted that VA recommended Dr. P. at Laser Spine Institute to evaluate and treat the Veteran. Moody AFB provided a "courtesy referral" noting that referral was approved for network provider "ONLY if this is a VA covered benefit." A November 24, 2008 Report of Contact (VA Form 119) reflects that the Veteran contacted a VA employee (W.M.) about a surgery he had planned to have at the Laser Spine Institute. The VA employee noted that she told him that he should come into the VA for a referral or be seen by neurosurgery who might also be able to perform the surgery if needed. It was noted that he was adamant that the surgery was already planned and that he had a referral from Moody AFB. The VA employee noted that she told him several times that he should get pre-authorization before signing any paperwork or paying any monies to the provider. According to the Veteran, he said that he had spoken to other VA employees who told him that VA was obligated to pay. The VA employee (W.M.) stated that she never told the Veteran that VA was obligated to pay anything. In his NOD, the Veteran stated that he spoke with a VA employee (W.M.) and submitted information regarding the emergent basis of the surgery and the referral from Moody AFB. He said that W.M. told him that he was "good to go." In his substantive appeal, he stated that W.M. told him that she had received all the data and that she would forward his request to her supervisor for further instructions. He said that he called W.M. again, prior to the surgery, and was told that he still did not have fee approval, but that VA had all of his data. He said that he told her that due to the urgency of the operation, he would request reimbursement after the surgery was completed. He said that W.M. told him he was "good to go." In his substantive appeal, the Veteran stated that he also spoke to another VA employee (B.D.) in November 2008. The Veteran said that he called the Lake City VA to see if he was authorized to receive assistance from the VA for the facility fees associated with his surgery. He said that he spoke to B.D. who told him that he was "authorized to receive fee basis support [and that he should] just have [his] primary care provider submit a referral request to the fee basis office in Gainesville." In a Report of Contact (VA Form 119) dated in May 2009, a VA employee (B.D.) stated that he did not recall the specific conversation that he might have had with the Veteran, but said that he did not have authority to authorize outside treatment. Furthermore, he stated that generally when a veteran asks him how to obtain authorization for treatment at a facility outside of VA, he tells a veteran that they must first be seen by their VA doctor and that the VA doctor must agree that outside treatment is necessary. That doctor would then need to contact Fee Basis to justify and coordinate an authorization for outside service. B.D. stated that he is confident that he did not authorize the Veteran or any other veteran to seek treatment from an outside provider. Private administrative records from Laser Spine Institute reflect that the Veteran signed a payment agreement on December 15, 2008. He acknowledged that he understood that Medicare would not pay the Facility Fee for his surgery and he agreed to pay $17,900;he apparently paid this sum with a cashier's check dated on December 10, 2008. Private treatment records from Laser Spine Institute reflect that the Veteran underwent nerve conduction studies (NCS) and an electromyograph (EMG) on December 12, 2008. On December 16, 2008, he underwent surgical laminotomy/foraminotomy with decompression of the nerve root at the right C6-7 level, and facet thermal ablation of both sides at the C5-6 level and the left C-6-7 level. In this case, the Board finds that the Veteran did not have prior authorization for the surgery at the Laser Spine Institute on December 16, 2008. In this regard, the Board points out that the Veteran admitted in his substantive appeal that he was told he did not have authorization for the surgery, but that VA had received his information and request. Although he said that a VA employee told him that he was "good to go", he also stated that because of the emergent nature of the surgery, he would seek reimbursement after the surgery. Hence, from his own statements, it appears that he understood that he had not obtained prior authorization. Furthermore, the VA employee in question (W.M.) categorically denied having given the Veteran authorization. As regards any referral to the Laser Spine Institute from a VA doctor or a doctor at Moody, AFB, the Board notes that the law is quite clear in these circumstances. The advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by the regulation. Smith v. Derwinski, 2 Vet. App. 378, 378-9 (1992), citing 38 C.F.R. § 17.50d(a) (1991), which has been recodified as 38 C.F.R. § 17.54 (see Medical; Nonsubstantive Miscellaneous Changes; 61 Fed. Reg. 21,964 (May 13, 1996)). Accordingly, the Board must conclude that prior authorization for the December 2008 surgery was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with the treatment under 38 U.S.C.A. § 1703. As such, the Board has considered whether the Veteran is eligible for payment or reimbursement for services not previously authorized. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, the VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) For veterans with service connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service- connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. 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) When Federal facilities are unavailable. VA or other Federal facilities were not 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. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Also, 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. See 38 C.F.R. § 17.130 (2009). Payment or reimbursement for emergency services for nonservice- connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000- 1008 (2009). 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. 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 (2009). The criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board points out that, during the pendency of this appeal, portions of the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123 (2008). Relevant to the instant case, the new law amends 38 U.S.C.A. § 1728 to provide the same definition of the term "emergency treatment" as in 38 U.S.C.A. § 1725(f)(1). The definition of emergency treatment, in pertinent part, means medical care or services 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. 38 U.S.C.A. § 1725(f)(1)(B). The new law also amends 38 U.S.C.A. § 1725 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to "shall". In this case, although the Veteran has argued that the spinal surgery was "emergent", the medical evidence does not indicate that the surgery was rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. While the Board is sympathetic to the pain associated with the Veteran's cervical spine disability, the Board points out that surgery was originally recommended in April 2005-more than 3 years before he finally had spine surgery. While it is certainly understandable that the Veteran was reluctant to undergo surgery in 2005 and wanted a second opinion, it can in no way be reasonably argued that the December 2008 surgery was a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. Moreover, the fact that the Veteran spent many years considering the surgery, sought a second opinion, and had several discussions with VA employees during the month preceding the surgery belies any argument that could be made that the surgery was rendered in a medical emergency. The purpose of these statutes is to provide payment or reimbursement for medical expenses incurred in emergency situations (or reasonably perceived emergency situations) where VA or government facilities are not feasibly available-not to provide payment for surgeries planned and scheduled at a future date at a private facility. Under these circumstances, the Board finds that the claim for payment of medical expenses the Veteran incurred for surgery at Laser Spine Institute on December 16, 2008, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Reimbursement of medical expenses the Veteran incurred for surgery at Laser Spine Institute on December 16, 2008, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs