Citation Nr: 1102178 Decision Date: 01/19/11 Archive Date: 01/26/11 DOCKET NO. 09-27 806A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to payment or reimbursement for medical care provided by Banner Sun City Medical Group on October 31, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by the Department of Veterans Affairs (VA) Medical Center in Phoenix, Arizona. In February 2010, the Veteran testified at a hearing before the undersigned at the regional office (RO) in Phoenix, Arizona. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record does not show that VA payment or reimbursement of the costs of the medical care provided by Banner Sun City Medical Group on October 31, 2008, involved an emergency situation, that the Veteran received authorization prior to receiving the medical care provided Banner Sun City Medical Group on October 31, 2008, or he or anyone acting on his behalf sought post-treatment authorization from VA within 72 hours of the medical care provided by Banner Sun City Medical Group on October 31, 2008, and authorization was given. 2. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Veteran by Banner Sun City Medical Group on October 31, 2008, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health. 3. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Veteran by Banner Sun City Medical Group on October 31, 2008, was for treatment of 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. 4. The Veteran is in receipt of a 100 percent rating for service-connected PTSD, hearing loss and tinnitus. CONCLUSION OF LAW The criteria for payment or reimbursement for medical care provided by Banner Sun City Medical Group on October 31, 2008, have not been met. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728, 5100, 5101, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002, 17.1003 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, obtaining a medical opinion. 38 U.S.C.A. § 5103A. Initially, the Board finds that because the current claim is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding the above, the Board has reviewed the case for purposes of ascertaining that the claimant has had a fair opportunity to present argument and evidence in support of his claim for reimbursement of medical expenses and concludes that he has. Specifically, a review of the record on appeal shows that there is no issue as to providing an appropriate application form. Moreover, while a review of the record on appeal does not show that the Veteran was provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in January 2009, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the July 2009 38 U.S.C.A. § 5103(a) notice letter and the July 2009 statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that the agency of original jurisdiction has obtained and associated with the claim's file all the records related to the Veteran's medical care at Banner Sun City Medical Group on October 31, 2008. The agency of original jurisdiction also obtained a medical opinion in April 2009 which is adequate to allow the Board to adjudicate the claim because it was provided after a review of the relevant private medical records found in the claim's file. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that there are no identified, available, and pertinent evidence which is not currently part of the claim's file. Hence, VA has fulfilled its duty to assist the claimant in the prosecution of his claim and adjudication of this appeal may go forward. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Merits of the Claim The Veteran claims that he is entitled to payment or reimbursement of the costs of the medical care provided by Banner Sun City Medical Group on October 31, 2008. In substance, the Veteran in writings to VA as well as his personal hearing claimed that, because his treating VA Medical Center (VAMC) had allowed him to receive treatment at Banner Sun City Medical Group, in the past, he thought that he could go back for treatment at this facility for treatment on October 31, 2008. He indicated that Banner Sun City Medical Group was closer to his home in comparison to the VAMC, which was thirty to fort-five minutes away. It is also requested that the Veteran be afforded the benefit of the doubt. Prior Authorization If VA facilities are not capable of furnishing hospital care or medical services, VA may contract with a non-VA facility in order to provide the required care. 38 U.S.C.A. §§ 1703, 1710. Non-VA care may be paid for by VA if VA authorizes the care in advance pursuant to 38 C.F.R. § 17.54. 38 C.F.R. §§ 17.52, 17.53. That section provides, in pertinent part, that: [t]he admission of a [V]eteran to a non- [VA] hospital at [VA] expense must be authorized in advance. In the case of an emergency which existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the [V]eteran or by others in his or his behalf is dispatched to the [VA] . . . within 72 hours after the hour of admission . . . (Emphasis added) In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As reported above, the Veteran in writings to VA and at his personal hearing alleged, in substance, that he is entitled to payment or reimbursement of the costs of the medical care provided by Banner Sun City Medical Group on October 31, 2008, because he thought that he could go to that facility since his VAMC had allowed him to receive treatment at that facility in the past. However, the Veteran does not claim and the record does not show that he received pre-treatment authorization from VA for his treatment at Banner Sun City Medical Group on October 31, 2008. Moreover, the Veteran does not claim and the record does not show that he or anyone acting on this behalf sought post-treatment authorization from VA within the meaning of 38 C.F.R. § 17.54 (i.e., within 72 hours) and, if so, authorization was given. As to the treatment being for an emergency, treatment records from Banner Sun City Medical Group on October 31, 2008, document the fact that the Veteran, after driving himself to the facility, was seen for a cough and sore throat. It also shows that he was treated and released on the same day with over the counter and prescription cold medication. Furthermore, a VA healthcare professional opined in April 2009 that the Veteran's difficulties on October 31, 2008, did not involve an emergency. This opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). While the Veteran and his representative have claimed otherwise, the Board finds that that these opinions are not competent and credible because whether or not a medical problem is an emergency requires special medical knowledge and because providing the opinion cannot be made based on symptoms which are observable to the naked eye by a lay person. See Jandreau, supra; Buchanan, supra; Charles, supra; Espiritu, supra. The Board also finds the April 2009 VA opinion more competent and credible than the Veteran and his representative statements because it was made by a healthcare professional. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, because the record is negative for competent and credible evidence that the Veteran required treatment for a medical emergency on October 31, 2008, that he received authorized prior to receiving the medical care provided by Banner Sun City Medical Group on October 31, 2008, or that the claimant or anyone acting on his behalf sought post-treatment authorization from VA within 72 hours of his receiving the medical care provided by Banner Sun City Medical Group on October 31, 2008, and authorization was given, the Board finds that the preponderance of the evidence is against the claim of entitlement to reimbursement because of prior authorizations. 38 C.F.R. §§ 17.52, 17.53, 17.54. Therefore, the Veteran may recover the expenses associated with such treatment only if he qualifies for payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. Unauthorized Medical Expenses In this regard, the Board notes that under the current laws and regulations governing reimbursement of unauthorized medical expenses found at 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 (see VETERANS' MENTAL HEALTH AND OTHER CARE IMPROVEMENTS ACT OF 2008, Pub. L. 110-387, October 10, 2008, 122 Stat 4110), in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, the Veteran must satisfy each of three regulatory conditions: (a) [The c]are or services . . . were rendered . . . (1) [For a]n adjudicated service- connected disability[;] (2) [For] a non-service-connected disability associated with and held to be aggravating an adjudicated service- connected disability[;] (3) [For a]ny disability of a [V]eteran if the [V]eteran has a total disability permanent in nature resulting from a service-connected disability . . . [; or] (4) [For a]ny illness, injury, or dental condition of a [V]eteran who - (A) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title); and (B) is medically determined to have been be in need of care or treatment . . .; and (b) . . . emergency treatment 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 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 . . . 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (Emphasis added). Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. The Veteran is in receipt of a total rating based on service- connected disability. As to whether the treatment the Veteran received at the Banner Sun City Medical Group on October 31, 2008, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health, treatment records from Banner Sun City Medical Group on October 31, 2008, noted that the Veteran, after driving himself to the facility, was seen for a cough and sore throat. It also shows that he was treated and released on the same day with over the counter and prescription cold medication. Furthermore, a VA healthcare professional opined in April 2009 that the Veteran's difficulties on October 31, 2008, were not an emergency and this opinion is not contradicted by any other medical opinion of record. See Colvin, supra. While the Veteran and his representative may claim otherwise, the Board finds that that these opinions are not competent and credible because whether or not a medical problem is an emergency requires specialized medical knowledge and because providing the opinion cannot be made based on symptoms which are observable to the naked eye by a lay person. See Jandreau, supra; Buchanan, supra; Charles, supra; Espiritu, supra. The Board also finds the April 2009 VA opinion more competent and credible than the Veteran and his representative statements because it was made by a healthcare professional. See Black, supra; Evans, supra. Accordingly, because the failure to satisfy any one of the above criteria precludes VA from paying or reimbursing of these private medical expenses, the Board finds that the preponderance of the evidence is against the claim for payment or reimbursement of unauthorized medical expenses under the provisions of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. Therefore, the Veteran may recover the expenses associated with such treatments only if he qualifies for payment or reimbursement under the provisions of The Veterans Millennium Health Care and Benefits Act. Veterans Millennium Health Care and Benefits Act The Veterans Millennium Health Care and Benefits Act provides 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. §§ 17.1000-1003. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177, and is referred to as the "Millennium Bill Act." The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." Therefore, it is potentially applicable to the current appeal. In this regard, the Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non- Department facility to those Veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24- month period) and who are personally liable for such non-VA treatment and are not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-1008. Moreover, under current laws and regulations (see VETERANS' MENTAL HEALTH AND OTHER CARE IMPROVEMENTS ACT OF 2008, Pub. L. 110-387, October 10, 2008, 122 Stat 4110) the Veteran in order to be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities must show that his treatment satisfies 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; (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; (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; (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 (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002 (Emphasis added). Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. With respect to whether a prudent layperson would have reasonably expected that a delay in seeking medical attention would be hazardous, the Board again notes that a VA healthcare professional in April 2009 opined, after a review of the relevant records, that his treatment was not obtained in an emergency situation. This opinion is not contradicted by any other medical opinion of record. See Colvin, supra. Moreover, treatment records from Banner Sun City Medical Group on October 31, 2008, note that the Veteran, after driving himself to the facility, was seen for a cough and sore throat. It also shows that he was treated and released on the same day with over the counter and prescription cold medication. The Board finds that these medical records, which do not show that a prudent layperson would have reasonably expected that a delay in seeking medical attention would be hazardous, are of greater probative value than any later statements from the Veteran and his representative that it was. See Jandreau, supra; Buchanan, supra; Charles, supra; Espiritu, supra. The Board finds that any assertion by the Veteran and his representative that his medical condition was of such severity that a prudent person would conclude that a delay in medical treatment would pose a hazard to his life or health are not supported by the contemporaneous treatment records which at no time showed that the cough and sore throat was life threatening. Id. Accordingly, because the failure to satisfy any one of the above criteria precludes VA from paying or reimbursing of these medical expenses, the preponderance of the evidence is against the claim for payment or reimbursement of unauthorized medical expenses under the provisions of The Veterans Millennium Health Care and Benefits Act. See 38 C.F.R. § 17.1002. Conclusion While the Board is sympathetic to the appellant's arguments, we are bound by the criteria set forth above, and a review of all the potentially applicable laws and regulations does not reveal a provision under which payment or reimbursement of the medical expenses in question may be made by VA. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); 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)). Indeed, the Supreme Court of the United States, in Richmond, went so far as to point out that '[i]t is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress." Richmond, 110 S. Ct. at 2474. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of medical care provided by Banner Sun City Medical Group on October 31, 2008, is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs