Citation Nr: 1107698 Decision Date: 02/25/11 Archive Date: 03/09/11 DOCKET NO. 10-49 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred at a private medical facility, from September 27, 2010 to October 4, 2010. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from February 1953 to February 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2010 by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. FINDINGS OF FACT 1. The Veteran presented for care at the Capital Regional Medical Center on the evening of September 26, 2010. He was subsequently admitted for further evaluation and treatment from September 27, 2010 to October 4, 2010. 2. Upon admission to the Capital Regional Medical Center, the Veteran reported having a history of dyspnea and congestive heart failure which began approximately two months prior to this episode of hospitalization. 3. The treatment that the Veteran received at Capital Regional Medical Center for congestive heart failure decompensation, bradyarrhythmia, and atrial fibrillation was not previously authorized nor was it of such 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 criteria are not met for payment or reimbursement of the unauthorized medical expenses incurred from September 27, 2010 to October 4, 2010, at the Capital Regional Medical Center. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to payment or reimbursement of the medical expenses he incurred from September 27, 2010 to October 4, 2010, at the Capital Regional Medical Center (CRMC) in Tallahassee, Florida. Payment Under 38 U.S.C.A. § 1728 According to 38 C.F.R. § 17.54 (2010), the admission of a veteran to a non-VA hospital at VA expense 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, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays. Pursuant to 38 C.F.R. § 17.52(a) (2010), VA may contract with non-VA facilities for care. Furthermore, 38 C.F.R. § 17.120 (2010) provides that, to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation may be paid on the basis of a claim timely filed under the following circumstances: (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 non-service-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; (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. See also, 38 U.S.C.A. § 1728 (West 2002); Zimick v. West, 11 Vet App. 45, 49 (1998). Prior to the September 27, 2010 treatment in question, the Veteran was not service-connected for any disabilities. There is also no evidence that the Veteran is permanently and totally disabled as a result of a service-connected disability or that he was a participant in a rehabilitation program under 38 U.S.C. ch. 31. Accordingly, 38 U.S.C.A. § 1728 is not for application in the current case. Payment Under 38 U.S.C.A. § 1725 The Board will also review the Veteran's claim under the Veterans Millennium Health Care and Benefits Act to determine if he is entitled to payment or reimbursement for medical care incurred from September 26, 2010 to October 4, 2010, at CRMC. See 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2010). According to 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment for non-service-connected disabilities in non-VA facilities is made only if all of the following criteria are met: (a) The emergency services were provided in a hospital emergency department or 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 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 was 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 function, 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 the 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 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 (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 the 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 for a 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; and (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). Factual Background and Analysis Resolution of the Veteran's claim turns on whether the treatment rendered at CRMC from September 27, 2010 to October 4, 2010, was for a medical emergency such that a VA facility was not feasibly available. The VAMC determined that the Veteran satisfied the other initial criteria outlined in 38 U.S.C.A. § 1725 for consideration under the Veterans Millennium Health Care and Benefits Act. See November 2010 decision. The definition of the term "emergency treatment" is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) 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 (3) until such time as a veteran can be transferred safely to a Department facility or other Federal facility. 38 U.S.C.A. § 1725(f)(1). Medical records associated with the Veteran's duplicate combined health record (CHR) revealed that he presented to CRMC on the evening of September 26, 2010 with subjective complaints of intermittent shortness of breath for the "past few months." The Veteran's past medical history was significant for congestive heart failure and atrial fibrillation, among other conditions. The Veteran was alert and oriented and he described his pain level as a "zero" at that time. A physical examination showed evidence of sinus bradycardia, but no shortness of breath. The Veteran was able to walk as well as void independently. An emergency department clinical note dated September 26, 2010 indicated that the Veteran arrived at CRMC by private vehicle at approximately 9:30 PM. He reported subjective complaints of dyspnea and abdominal bloating as well as a history of congestive heart failure. According to the Veteran, this intermittent condition started two months ago and was still present at that time. The dyspnea was described as "mild" and worsened by being in the supine position. The condition was improved with rest. The Veteran reported having some fatigue, cough, and orthopnea. He denied being lightheaded, having falls, sputum production, fever, sweating episodes, wheezing, or chills. It was also noted that the Veteran had similar symptoms in the past and that he was recently hospitalized at CRMC. His past medical history was significant for congestive heart failure and atrial fibrillation, among other conditions. A review of systems found the Veteran to have abdominal pain as well as generalized pain. Otherwise, the systems review was negative. A physical examination showed the Veteran to be alert, oriented, and in no acute distress. Heart sounds and pulse oximetry were normal, but evidence of bradycardia was found. The impression was dyspnea, acute congestive heart failure, and sinus bradycardia. The Veteran was subsequently admitted in the early morning on September 27, 2010, and treated for shortness of breath which was determined to be multi-factorial secondary to congestive heart failure decompensation and possible pneumonia. A chest x-ray was significant for questionable basal infiltrate. See also, History and Physical Examination Report. A cardiothoracic consultation was ordered and the Veteran had a permanent dual-chamber pacemaker implanted. Following implantation of the pacemaker, the Veteran's congestive heart failure compensated prior to discharge and his shortness of breath resolved with therapy. The Veteran was eventually discharged to home in stable condition on October 4, 2010. See Discharge Summary. The Veteran's claims for payment or reimbursement for unauthorized medical expenses incurred at CRMC were initially denied in November 2010 on the basis that the care he received was non-emergent (i.e., such that delay would not have been hazardous to his life or health). The Veteran filed a timely notice of disagreement (NOD) in November 2010 in which he stated that he presented to CRMC at approximately 9 PM with a diagnosis of congestive heart failure. According to the Veteran, the VA Outpatient Clinic was closed at that hour. The Veteran requested reconsideration of the initial denials and in November 2010, a VA physician upheld them. The VAMC issued a statement of the case (SOC) that same month and continued the initial denials on the grounds that the Veteran's condition was non-emergent. It was also noted that the Veteran had sufficient time to seek the medical care required as VA clinics in Gainesville and Lake City were open 24 hours per day, seven days per week. According to the VAMC, available documentation indicated that the Veteran experienced symptoms of dyspnea and congestive heart failure which started two months prior to this episode of care at CRMC. It was noted that the Veteran had bradycardia at admission to CRMC, but he was in no acute distress and the review of systems was essentially negative with the exception of complaints of generalized pain. It was further noted that this episode of care at CRMC ultimately resulted in implantation of a pacemaker. In a substantive appeal dated December 2010, the Veteran indicated that the nearest VA medical facility (in Lake City) was over 100 miles away, and as such, "were not feasible options for congestive heart failure." See also, January 2011 informal hearing presentation (IHP). The Veteran submitted another statement dated that same month in which he acknowledged episodes of hospitalization for congestive heart failure and/or pneumonia at CRMC from August 3, 2010 to August 5, 2010, and from August 28, 2010 to September 2, 2010. He also stated that he was solely financially liable and responsible for all of his medical care and that he did not have any other forms of health insurance to help pay his medical bills. With regard to the episode of hospitalization in question here, the Veteran stated that he arrived to the emergency department at CRMC at approximately 9:30 PM on September 26, 2010. According to the Veteran, his heart beat was "running low" and he was subsequently admitted on September 27, 2010 for further evaluation. He further indicated that he was diagnosed as having congestive heart failure at that time and eventually required surgery to implant a pacemaker. Following implantation of the pacemaker, he was discharged from CRMC on October 4, 2010. Given the evidence of record, the Board finds that the preponderance of the evidence is against payment or reimbursement for unauthorized medical expenses incurred at a private medical facility from September 27, 2010 to October 4, 2010. Preliminarily, the Board must address whether the care rendered at CRMC, from September 27, 2010 to October 4, 2010, was previously authorized. The Board finds that it was not. In this regard, the Veteran does not allege, nor does the record reflect, any attempt to contact VA prior to seeking care at CRMC. Rather, the Veteran went directly to CRMC after experiencing gradually worsening shortness of breath on the evening of September 26, 2010. In the Veteran's opinion, the nearest VA medical facility (in Lake City) was over 100 miles away, and as such, "were not feasible options for congestive heart failure." See December 2010 substantive appeal. Furthermore, there is no indication of record that the Veteran (or someone else on his behalf) contacted VA within 72 hours after the hour of admission in an attempt to secure authorization for the care and services rendered at CRMC. See 38 C.F.R. § 17.54. Accordingly, the Board finds that the care rendered at CRMC, from September 27, 2010 to October 4, 2010, was not previously authorized. Having found that this episode of care was not previously authorized by VA, the next step in the inquiry is to determine whether a medical emergency existed at the time the private care was rendered. In this context, a medical emergency exists when the condition was of such 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 Board finds that the preponderance of the evidence is against a finding that such was present in this case. A careful review of the objective medical evidence of record failed to show that his symptoms were of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. See Swinney v. Shinseki, 23 Vet. App. 257, 264- 65 (2009) (holding that reimbursement for emergency treatment rendered at a non-VA facility does not require that the treatment the Veteran receives be for an emergent condition; rather, the question is whether a prudent layperson given the circumstances present at the time would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health). The Board acknowledges that the Veteran was treated at the CRMC emergency department from August 3, 2010 to August 5, 2010, and from August 28, 2010 to September 2, 2010, for symptoms related to congestive heart failure and/or pneumonia. See Veteran's December 2010 statement. Although records from these episodes of care are not contained in the duplicate CHR, the Veteran does not allege, nor does the record reflect that he was advised to seek immediate medical care during that period of time or in the period of time leading up to his trip to CRMC beginning on September 26, 2010. As noted above, private treatment records dated September 26-27, 2010 and the Veteran himself indicated that he first experienced intermittent shortness of breath approximately two months prior to the episode of care in question. By his own account, these symptoms continued intermittently until his admission to CRMC. He arrived at CRMC, on September 26, 2010, by private vehicle at approximately 9:30 PM and his past medical history was significant for congestive heart failure and atrial fibrillation, among other conditions. The Veteran was alert and oriented upon arrival to CRMC and he described his pain level as a "zero" at that time. The Veteran's shortness of breath was described as "mild," and he was alert, oriented, and in no acute distress. Heart sounds and pulse oximetry were normal, but evidence of sinus bradycardia was found. The Veteran was, however, able to walk as well as void independently. The Veteran's shortness of breath was determined to be multi-factorial secondary to congestive heart failure decompensation and possible pneumonia. While the Veteran ultimately had a pacemaker implanted during this episode of care, the Board finds no evidence of a medical emergency in this case. The Board notes that the emergency department treatment records are highly probative evidence regarding the severity of the Veteran's symptoms as these records were generated contemporaneously to the incident in question. The Board's conclusion in this regard is buttressed by the November 2010 initial decision denying the Veteran's claims as well as the decision denying the Veteran's claims on reconsideration. In reaching these conclusions, a VA physician ostensibly reviewed the Veteran's duplicate CHR, to include the treatment records, as well as his lay statements. It was determined that the Veteran's condition at that time was not- emergent because his symptoms had been present for approximately two months. It was also noted that he was in no acute distress on admission except for subjective complaints of generalized pain. See also, November 2010 SOC. In contrast, the Veteran indicated in a statement dated December 2010 that he experienced gradually worsening breathing problems on September 26, 2010 and elected to go to CRMC because the nearest VA medical facilities were closed. In the Veteran's opinion, the nearest VA medical facility (in Lake City) was over 100 miles away, and as such, "were not feasible options for congestive heart failure." See December 2010 substantive appeal. The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"); see also, Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). Thus, the Veteran's lay statements regarding the severity of his symptoms on September 26-27, 2010 is competent evidence. Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Ultimately, however, the Board finds that the statements provided by the Veteran regarding the severity of his symptoms at the time that he sought treatment at CRMC lack credibility and are outweighed by the evidence discussed immediately above. The controlling question in this case is whether the Veteran's condition on September 27, 2010 was of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. See Swinney, 23 Vet. App. at 264-65. It was not for the reasons articulated above. The Board is sympathetic to the Veteran's situation in this case, particularly to his belief that his symptoms were of an emergent nature. However, the Board finds that the Veteran's condition was not of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. In fact, the onset of the symptoms was several months prior to the September 27, 2010 to October 4, 2010 episode of care at CRMC. Emergency department notes showed that the Veteran arrived via private vehicle. He was found to be alert, oriented, and in no acute distress. The Veteran himself rated his pain as a "zero" and he was able to walk and void independently at that time. In determining that a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health for treatment rendered at CRMC, from September 27, 2010 to October 4, 2010, the Board takes into consideration the lay statements provided by the Veteran, which are found to lack credibility in light of the documentation of record that was prepared contemporaneously to the time of his hospitalization. The Board finds the objective documents created at that time to be credible and therefore entitled to great probative value. The statements provided by the Veteran concerning the necessity for emergency care are in conflict with the contemporaneous evidence and are, therefore, not credible. In light of the Veteran's inability to satisfy the criterion outlined in 38 C.F.R. § 17.1002(b), the Board finds that any discussion as to whether a VA medical facility was feasibly available and/or safe transfer possible is unnecessary. Thus, the Board finds that payment or reimbursement of unauthorized medical expenses incurred by the Veteran at the Capital Regional Medical Center, from September 27, 2010 to October 4, 2010, is not warranted. The Board has applied the benefit-of-the-doubt doctrine in reaching these conclusions. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 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 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided with VCAA notice in December 2010. Any notice errors with respect to the information and evidence needed to substantiate the Veteran's claim for payment or reimbursement of unauthorized medical expenses did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006); see also, Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's claim for payment or reimbursement of unauthorized medical expenses was denied in November 2010. But, the Veteran was informed in that same decision of the information and evidence needed to substantiate a claim for payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1725. He was also informed of the reasons for denial and of his procedural and appellate rights. His claim was subsequently readjudicated later that same month via a request for reconsideration and he was also provided with a statement of the case (SOC) in November 2010. The SOC also provided, in complete detail, all of the information and evidence needed to substantiate the current claim for payment or reimbursement of unauthorized medical expenses under 38 U.S.C.A. § 1725. Based on the notices provided to the Veteran, including the notice letters, the VAMC decisions, and the November 2010 SOC, the Board finds that a reasonable person could be expected to understand what information and evidence was required to substantiate the claim. The information provided allowed the Veteran to effectively participate in the appeal process. In this regard, the Veteran provided specific arguments during the pendency of this appeal in which he attempted to demonstrate the existence of a medical emergency. See Veteran's November and December 2010 statements. In summary, the Board finds that any deficiency in the notice to the Veteran or the timing of the notice is harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. The Board further finds that VA has complied, to the extent required, with the duty-to- assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). (CONTINUED ON NEXT PAGE) ORDER Payment or reimbursement of unauthorized medical expenses incurred by the Veteran, from September 27, 2010 to October 4, 2010, at Capital Regional Medical Center is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs