Citation Nr: 1126953	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO.  06-36 509	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Fort Harrison, Montana


THE ISSUE

Entitlement to payment or reimbursement of medical expenses from private medical care in April and May 2004.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Russell P. Veldenz, Associate Counsel






INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1953 to March 1955.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision in May 2005 of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Fort Harrison, Montana.

In August 2009, the Board remanded the case to the RO for additional development.  The Board remanded the case to afford the Veteran notice to include the type of evidence necessary to substantiate the claim for entitlement to reimbursement of medical expenses under 38 U.S.C.A. §§ 1725 and 1728, a factual determination as to whether the Veteran was enrolled in the VA health care system for the previous 24 months, and whether he had any other health insurance besides VA, obtain medical opinion on the question of whether the private medical care was a medical emergency 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.  After review of the report, the Board finds the VA examination report in compliance with 38 C.F.R. § 3.159(c) (4), that is, sufficient competent medical evidence to make a fully informed decision on the claim.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

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).

FINDING OF FACT

In April and May 2004, the Veteran received medical care from private health care providers and the medical care was not rendered in an emergency room or similar facility held out as providing emergency care to the public and in response to a medical emergency of such nature that delay would have been hazardous to the Veteran's life or health.


CONCLUSION OF LAW

The criteria for payment or reimbursement of medical expenses not previously authorized incurred in April and May 2004 have not been met.  38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2010); 38 C.F.R. § 17.120 (2010).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided the Veteran pre- and post- adjudication VCAA notice by letters in April 2004 and in May 2010.  The Veteran was notified of the criteria for payment or reimbursement of unauthorized medical expenses, and was notified that he could submit or authorize VA to obtain evidence germane to his claim, such as medical records.  


As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent there was pre-adjudcation VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).

To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in January 2011.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA and private medical records and the Veteran has provided written argument.

As there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.








REASONS AND BASES FOR FINDINGS AND CONCLUSION

Facts 

The Veteran has suffered from heart problems at least since the mid-1980s.  In December 1985, the Veteran was admitted to a private hospital for a coronary artery bypass.  By history, it appears the Veteran had an angioplasty in 1994.

The Veteran enrolled in VA healthcare in August 1998.

By July 2001, the Veteran received treatment for intermittent claudication symptoms, increased fatigue, and angina.  In September 2001, a stress thalium image study indicated a large mostly fixed inferior interolateral/lateral wall defect consistent with a myocardial infarction with a small amount of peri- infarct ischemia.  It also indicated a moderate sized intraseptal myocardial infarction with a small to moderate sized amount of peri- infarct ischemia.  

In October 2001, a VA cardiologist recommended against a cardiac angiogram because of the Veteran's peripheral vascular disease, obesity, and chronic renal insufficiency.  

In March 2004, the Veteran complained of exertional chest pressure and shortness of breath with minimal to moderate exertion one to two times a week.  It was noted the Veteran, a former smoker, had a moderate lung obstruction and lung restriction.  

On March 11, 2004, a left heart catheterization, a selective coronary angiography, left ventriculography, and an aortocoronary saphenous vein bypass graft were done.  The results were consistent with severe coronary disease as well as severe left ventricular dysfunction.  The Veteran's overall health status made the Veteran a significant surgical risk.  He was again referred for a cardiac consultation for an opinion as to whether he was a surgical candidate.

On March 31, 2004, VA physicians determined that the Veteran's poor comorbidities, poor LV function, and poor targets for revascularization (other than the lower anterior descending artery, or LAD), the Veteran's risk on a second coronary artery bypass was very high and VA would not offer such surgery.  By now, the Veteran had total occlusions of the right coronary artery and circumflex system and an ejection fraction of 25 percent.  

On April 12, 2004, the Veteran sought treatment for right recurrent shoulder tendonitis symptoms.  It was noted he had frequent angina particularly with exertion.  He used oxygen at night and during the day with exertion.  As medication wore off, he noticed minor angina chest pain.  

On April 19, 2004, the Veteran sought a second opinion from a private physician, Dr. T. D., who concluded he could operate on the Veteran with an increased, but not prohibitive risk due to the Veteran's obesity, lung disease, and peripheral vascular disease).  He referred the Veteran to Dr. K. W. of the Montana Heart Institute for a determination whether the Veteran may be a candidate for a stent instead of a bypass.

On May 5, 2004, at St. Vincent's Hospital, Dr. W placed two cardiac stents.  By late June 2001, the Veteran was reporting he no longer had angina and his exertional shortness of breath had improved.  Dr. K. W. in November 2004 also noted the Veteran had no chest pain and experienced improvement in exercise tolerance. 

Since the stent operation in May 2004, the Veteran had apparently been hospitalized once in October 2005 for bradycardia and dizziness.  An echocardiogram and stress thallium test were reported as normal.  He still had mild exertional shortness of breath but no chest pains, pedal edema, or orthropnea.  







Applicable Law and Analysis-§ 1728

Congress has authorized the reimbursement for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725.  

In a claim involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized by VA.  38 U.S.C.A. § 1703(a).  If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services not previously authorized under either 38 U.S.C.A. §1728 or the Veterans Millennium Healthcare and Benefits Act (Millennium Act), 38 U.S.C.A. § 1725.

In October 10, 2008, the President signed S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008.  Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 1728 to make mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an "eligible" Veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied.  See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, ___ Stat. ___ (2008).

The VAMC has denied the Veteran's claim under 38 U.S.C.A. § 1728 and§ 1725 by finding that the Veteran does not meet the eligibility requirements of either statute.

In this case, the Veteran asserts while he was hospitalized for the stent placement, he talked to his primary care provider who told him that VA would cover the hospitalization.  The Veteran is competent to testify that he received the phone call while hospitalized at St. Vincent's Hospital.  




Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.)

The Veteran's statements, however, confirm that he did not have prior VA authorization for private medical treatment.  Instead, he did not discuss the matter with VA until after the private treatment had already begun.  Therefore, the Board finds that the treatment with Drs. D and W and hospitalization at St. Vincent's Hospital were not previously authorized by VA.  

Thus, the question posed is whether the Veteran is eligible for payment or reimbursement for medical services that were not previously authorized.

Under 38 U.S.C.A. § 1728, implemented at 38 C.F.R. § 17.120, payment or reimbursement of the expenses of medical care, not previously authorized, in a private hospital, including transportation, may be paid on the basis of a claim timely filed, under the following circumstances:

There must be a showing that three criteria are met: (a) (1) for an adjudicated service-connected disability, or (2) for a non-service- connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service- connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i); 

(b). In a medical emergency, that is, 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.  See 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2009); see also Zimick v. West, 11 Vet. App. 45, 49 (1998)

All three statutory requirements must be met before the payment or reimbursement may be authorized.

In this instance, the Veteran is not eligible for reimbursement as his cardiac disability is not service connected or aggravated by his service-connected disabilities, and the Veteran is not totally disabled by his service-connected disabilities and he was not participating in a VA rehabilitation program.  Therefore, the Board finds that the evidence does not support a conclusion that all three elements of 38 C.F.R. § 17.120 have been established in order to reimburse the Veteran for the stent in May 2004 under 38 U.S.C.A. § 1728.  

Whether the Veteran's cardiac condition presented a medical emergency or whether VA or other Federal facilities were not feasibly available, there is no evidence that the Veteran was eligible based upon his service-connected disabilities.

Applicable Law and Analysis-§ 1725

Under 38 U.S.C.A. § 1725, payment or reimbursement for emergency services may be made only if all of the following conditions are met: 

(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 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 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 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; and 

(i) the Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided.

The term "emergency treatment" is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the Veteran can be transferred safely to a VA or other Federal facility.  38 U.S.C.A. § 1725(f)(1). 

It is emphasized that 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.  See 38 C.F.R. § 1002(b); see also Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (defining a medical emergency as a sudden, generally unexpected occurrence or set of circumstances demanding immediate action).

Additionally, regulations provide that a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  38 C.F.R. §§ 17.52, 17.53.  


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.  38 C.F.R. § 17.130.

The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.

As regards the merits of the Veteran's claim, it appears the Veteran sought the opinions of private physicians, Drs. D and W, and he then had surgery as an overnight patient in May 2004.  

The request for reimbursements does not meet the requirement that the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public.

In addition, based on the evidence the Board finds that there was not, at the time of the Veteran's insertion of stents, an emergency situation 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.  The Veteran first presented himself for treatment in March 2004 and it was not until the end of the month that he had the diagnostic procedures that indicated surgery might be needed, and at that, VA physicians determined that the risks outweighed the benefits.  The Veteran chose to seek a second opinion, seeing Dr. D. approximately three weeks later.  Two weeks later, Dr. W. inserted the stent.  

At no time did any physician state the Veteran's condition required "urgent" or "immediate" care or state it was an emergency.  In fact, there is no mention in any medical record of chest pain or respiratory distress, or that the Veteran was unconscious or similarly incapacitated.  




The whole process took a month and a half to two months duration.  In the period of time under question, the level of symptomatology did not change significantly.  Dr. D even described the Veteran as not in acute distress after his April 19, 2004 evaluation.  In short, the records document the Veteran as presenting for treatment and the decision was not whether the Veteran needed immediate treatment, but rather, what treatment to provide to the Veteran.  

While a VA physician concluded that placement of the stent was good medical care and needed to be done promptly, the VA physician did not indicate the delay between VA's decision to decline to perform surgery in March 2004 and the actual surgery in May 2004 harmed the Veteran.

Based on the evidence the Board finds that there was not, at the time of the Veteran's private treatment in April and May 2004, an emergency situation 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. 38 U.S.C.A. § 1725(f)(1).  The second requirement for medical reimbursement is consequently not met.  38 C.F.R. § 17.1002(b).  

Accordingly, the Veteran's request for reimbursement must be denied.  See 38 C.F.R. § 17.1002; see also Hayes v. Brown, 6 Vet. App. 66, 68 (holding that all of the statutory requirements for reimbursement must be met before payment may be authorized).

As the governing law and regulations specifically outline under what circumstances reimbursement can be paid, and as all the statutory and regulatory criteria have not been met, the Board has no legal authority to grant the benefit sought.






Accordingly, the Board finds that the preponderance of the evidence is against the claim for payment or reimbursement of unauthorized medical expenses for treatment provided in April and May 2004 by private physicians at a non-VA facility under 38 U.S.C.A. § 1725 and § 1728 and 38 C.F.R. § 17.120, 17.1002, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).


ORDER

Payment or reimbursement for unauthorized medical expenses for private medical care in April and May 2004 is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs