Citation Nr: 1123501 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-00 015A ) DATE ) ) On appeal from the North Florida/South Georgia Veterans Health System Malcolm Randall Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for medical services provided by Florida Hospital Flagler, on September 1, 2009, pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill Act). ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the North Florida/South Georgia Veterans Health System Malcolm Randall Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida. FINDINGS OF FACT 1. The Veteran was treated on September 1, 2009 at Florida Hospital Flagler for influenza. 2. The Veteran's treatment on September 1, 2009 was non-emergent. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services provided by Florida Hospital Flagler, on September 1, 2009, pursuant to the Millennium Bill Act have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp 2010); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. However, these changes are not applicable to claims such as the one decided herein. See Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the Court held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 17). Nevertheless, the Veteran was provided with the notice required by the VCAA in a December 2009 letter, prior to the January 2010 statement of the case. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits. Consequently, the duties to notify and assist have been met. VA law provides that payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 17.1000-1008 (2010). 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 that 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). 38 C.F.R. § 17.1002 (2010). According to a physician's notation, the Veteran's wife was tested and treated for H1N1 influenza on August 25, 2009. The Veteran developed flu symptoms. He stated that he called the VA Daytona Clinic to get an appointment, but was told to stay home, take fluids, and rest. The Veteran indicated that he was sent some information on how to take care of a cold. The Veteran stated that the flu epidemic was deadly and the only way he could obtain treatment was to go to another doctor. On September 1, 2009, he presented with influenza symptoms at Florida Hospital Flagler where he was treated and discharged in the same day. The treatment records indicated that his symptoms were moderate in degree. A flu swab was taken and the Veteran was given a prescription. The Veteran's claim was denied on the basis that the treatment provided by the private facility was for a non-emergent condition. The RO indicated that while the Veteran could not get an immediate appointment, he could have walked in to the VA clinic. The Board agrees with the RO's determination. The Veteran developed upper respiratory symptoms that were no more than moderate. There was no respiratory distress and breath sounds were normal. He was not in a severe state. He did not attempt to use any other VA facilities. He was not admitted to the private hospital and was discharged after initial evaluation on his own accord. More importantly, the Veteran has stated that when he contacted a doctor's office at the Daytona VA Clinic to get an appointment for the H1N1virus, the nurse told him not to come to the clinic and to stay home, take fluids, and rest. The Veteran was notified of the proper course of treatment for his virus by a medical professional, but disregarded this advice and went to a private emergency room. Having been told by a medical professional to stay home, take fluids, and rest, a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. In view of the foregoing, the Board finds that an emergency did not exist in this case. Accordingly, since all of the criteria are not met, entitlement to payment or reimbursement for medical services provided by Florida Hospital Flagler, on September 1, 2009, pursuant to the Millennium Bill Act is not warranted. ORDER Payment or reimbursement for medical services provided by Florida Hospital Flagler, on September 1, 2009, pursuant to the Millennium Bill Act is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs