Citation Nr: 1124642	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  10-03 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capitol Regional Medical Center, Tallahassee, Florida, on April 25, 2009.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel





INTRODUCTION

The Veteran had active service from September 1967 to April 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse actions by the Department of Veterans Affairs (VA), North Florida/South Georgia Veterans Health System in Gainesville, Florida.


FINDINGS OF FACT

1.  Service connection is not in effect for any disability.

2.  The Veteran presented to the emergency room at Capitol Regional Medical Center, Tallahassee, Florida, on April 25, 2009, with a chief complaint that the fourth right toenail was coming off.

3.  The objective evidence reflects that a VA facility was feasibly available to the Veteran to treat his non-emergent fourth right toenail injury.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on April 25, 2009, pursuant to the Veterans Millennium Health Care and Benefits Act, are not met.  38 U.S.C.A. §1725 (West 2002); 38 C.F.R. §§ 17.120, 17.121, 17.1000- 17.1002 (prior to, and subsequent to October 10, 2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Board is satisfied that all relevant facts regarding the issue decided below have 
been properly developed and no further assistance to the appellant is required in order to comply with the duty to notify or assist.  The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

However, the United States Court of Appeals for Veterans Claims (Court) ruled in Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive.  In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court held that the provisions of the VCAA are not applicable to statutes and regulations, which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions.  As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. §1725, the provisions of the VCAA are not applicable.  The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses.  According to 38 C.F.R. § 17.124, a Veteran has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim."  When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38.  38 C.F.R. § 17.132.

At any rate, the Veteran was provided with the notice required by the VCAA in correspondence provided to him over the course of this appeal.  VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits.  Consequently, the duty to notify and assist has been met.


Reimbursement of Unauthorized Medical Expenses

Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and implementing regulations.

In this case, the record shows that the Veteran does not have a service-connected disability rated totally disabling and his treatment at the non-VA medical facility  was not for a service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for the purpose of ensuring entrance or continued participation in a vocational rehabilitation program under 38 U.S.C. Chapter 31.  Moreover, the Veteran has not alleged that his treatment was for any of the aforementioned purposes.  Consequently, he is not eligible for benefits under 38 U.S.C.A. § 1728.  See 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120, 17.47(i).

Alternatively, to be eligible for payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), the Veteran must 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 such provider 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);

(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 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 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 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.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).  See 38 C.F.R. § 17.1002 (2010).

Analysis

On April 25, 2009, at approximately 11:44 a.m., the Veteran presented to the emergency room at the Capitol Regional Medical Center with a complaint of a right fourth toe injury.  The hospital triage report shows that the Veteran reported that his right toenail was coming off.  He was said to have arrived at the emergency room by walking in.  He was alert and oriented.  There was no bleeding.  He was wearing shoes, there was a toe contusion with a loose nail taped into place.  The Veteran reported that he had injured the toe five days earlier when he stubbed his toe while barefoot.  He added that he had experienced persistent moderate pain since then.  X-rays of the right foot revealed no radiopaque foreign body, bone fracture, or acute abnormality.  The clinical impression was contusion of the right fourth toe.  The Veteran was discharged at approximately 3:25 p.m., with a prescription for pain medication and instructions to follow up with his physician.

A VA outpatient treatment record dated April 30, 2009, shows that the Veteran underwent a debridement and toenail removal of the fourth right toe. 

A determination of the Chief Medical Officer (CMO) of the VA Medical Center dated May 15, 2009, shows that reimbursement of unauthorized medical expenses incurred at Capitol Regional Medical Center on April 25, 2009, was disapproved as it was determined that there had been no medical emergency.

A second review of the Veteran's claim conducted on August 12, 2009, shows that the claim was again disapproved as the Veteran had provided no new information to suggest that his treatment on April 25, 2009, had been for a medical emergency.  The CMO indicated that the Veteran had asserted that he had gone to the emergency room because he had broken his right index toe - making it difficult to walk, and that he had toe surgery performed on the Monday following the emergency room treatment.  The CMO concluded that on presentation, the Veteran had reported a five day history of symptoms; that there was no record indicating that he had fractured the toe; that surgery was not done for five days following the emergency room visit, and then only for debridement of the toenail, not a medical emergency.

In his December 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the  Veteran explained that the VA clinic in Tallahassee had not been open on Saturday, April 25, 2009.  He described that he had taken his shoe off and noticed a large amount of blood, so he believed it to be a medical emergency and sought medical treatment at the Capital Regional Medical Center emergency room.

The following facts are not in dispute:  the Veteran is financially liable to the Capital Regional Medical Center for the treatment in question; he does not have any form of health insurance or coverage; he does not have any legal recourse against a third party that will pay all or part of the bills; his complaints were unrelated to a workplace accident or injury; and he is not eligible for reimbursement under 38 U.S.C.A. § 1728.

The Veteran's claim was denied by the VA Medical Center on the basis that a VA facility was feasibly available to treat a non-emergent contusion of the fourth right toe.  On review, the Board finds that the criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on April 25, 2009, pursuant to the Veterans Millennium Health Care and Benefits Act, are not met.  Significantly, the CMO of the VA Medical Center, in May 2009 and August 2009 concluded that the Veteran did not meet the criteria for emergency treatment.  In this regard, the CMO determined that the contusion of the right fourth toe resulting in a loose toenail which had occurred five days before the emergency room treatment was not a medical emergency.  Notably, the record does not contain any competent medical opinion to the contrary.
In sum, the evidence of record suggests that a VA facility would have been feasibly available either during the five days prior to April 25, 2009, or beginning the following Monday in order to evaluate the Veteran's right fourth toe contusion.

The Board has considered the Veteran's contentions that there were no feasibly available VA treatment facilities on the date of treatment, and that he had noticed a large amount of blood on the day of treatment, prompting his belief that it had been a medical emergency.  Notwithstanding the fact that the Veteran sought treatment on a Saturday, when presumably emergency room treatment at a VA facility may not have been feasible, the evidence shows that the Veteran, himself, reported that he had sustained the right toe contusion five days prior to seeking emergency room treatment.  Moreover, while the Board has considered the Veteran's report that he had noticed a large amount of blood on the day of emergency room treatment, the emergency room treatment records confirm that he was not bleeding upon his arrival at the emergency room.  As such, the Veteran could have sought treatment on a day that a VA medical facility was feasibly available.

Additionally, in his July 2009 notice of disagreement, the Veteran alleged that he had broken his right index toe and had no other option but to go to the emergency room at the Capital Regional Medical Center.  This statement is inconsistent with the medical evidence of record as X-rays conducted during the April 25, 2009, emergency room visit showed that there were no radiopaque foreign bodies, bone fractures, or acute abnormalities. 

In light of the foregoing, the Board finds that the Veteran's condition was not 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).  The fact that the Veteran's right fourth toe contusion had occurred five days earlier, that the toenail was being held in place by tape, and that he was not bleeding at the time of admission, suggests that it is reasonable to conclude that his symptoms could have been satisfactorily treated at a feasibly available VA facility.  There is no competent medical evidence of record to rebut the opinion of the CMO or to otherwise suggest that delay in seeking immediate medical attention would have placed the Veteran's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

Although the Board is sympathetic toward the Veteran, it is bound by the law, and this decision is dictated by the relevant statutes and regulations.  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; 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).

The Board finds that the preponderance of the evidence is against reimbursement or payment for the unauthorized private medical care that the Veteran received on April 25, 2009, under the provisions of 38 U.S.C.A. § 1725.  The appeal is, therefore, denied.


ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capitol Regional Medical Center, Tallahassee, Florida, on April 25, 2009, is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs