Citation Nr: 1105768	
Decision Date: 02/11/11    Archive Date: 02/18/11

DOCKET NO.  09-27 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs James A. Haley Veteran's Hospital 
in Tampa, Florida 


THE ISSUE

Entitlement to reimbursement or payment for the cost of private 
medical services provided to the Veteran at the Cape Canaveral 
Hospital in Cocoa Beach, Florida on June 12, 2006.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse




ATTORNEY FOR THE BOARD

B. R. Mullins, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1965 to April 1968.  

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a decision of the Department of Veterans Affairs 
(VA) James A. Haley Veteran's Hospital in February 2007.  

In May 2010, the Veteran provided testimony at a hearing before 
the undersigned Veterans Law Judge at the RO in St. Petersburg, 
Florida.  A written transcript of this hearing has been prepared 
and incorporated into the evidence of record.  


FINDINGS OF FACT

1.  Medical care was provided to the Veteran at the Cape 
Canaveral Hospital in Cocoa Beach, Florida on June 12, 2006.  

2.  VA payment or reimbursement of the costs of the private 
medical care provided to the Veteran was not authorized prior to 
the Veteran undergoing treatment.

3.  The private medical treatment was not for a service-connected 
disability, a nonservice-connected disability associated with and 
held to be aggravating a service-connected disability, and the 
Veteran was not a participant in a vocational rehabilitation 
program.  

4.  A VA facility was not feasibly or reasonably available to 
provide the Veteran's necessary medical care.  

CONCLUSION OF LAW

The criteria for entitlement to reimbursement for the reasonable 
value of emergency treatment received on June 12, 2006 at the 
Cape Canaveral Hospital have been met.  38 U.S.C.A. § 1725 (West 
2002); 38 C.F.R. §§ 17.1000-08 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Under the provisions of the Veterans Claims Assistance Act of 
2000, VA has certain notice and assistance requirements.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 
& Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).  
The VCAA, with its expanded duties, is not applicable to cases 
involving the waiver of recovery of overpayment claims, as the 
statute at issue in such cases is not found in Title 38, U.S.C., 
Chapter 51.  Barger v. Principi, 16 Vet. App. 132 (2002).  
Similarly, the statute at issue in this matter is not found in 
Chapter 51, but rather, in Chapter 17.  However, in Beverly v. 
Nicholson, 19 Vet. App. 394, 403-04 (2005), although not 
explicitly stated, the United States Court of Appeals for 
Veterans Claims (Court) appeared to assume that the VCAA was 
applicable to a Chapter 17 claim, but then held that the failure 
to comply with the VCAA notice requirements in that case 
constituted non-prejudicial error.  

The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R. Part 
17, 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, the appellant 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 
payment/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 tot furnish 
all other notifications or statements required by Part 19 of 
Chapter 38.  38 C.F.R. § 17.132 (2010).  In this case, the Board 
is granting in full the benefit sought on appeal.  Accordingly, 
assuming, without deciding, that any error was committed with 
respect to either the duty to notify or the duty to assist, such 
error was harmless and will not be further discussed.  

Analysis

The record demonstrates that the Veteran was receiving treatment 
from his local VA treatment center in June 2006.  The Veteran was 
noted to be suffering from chronic low back pain secondary to 
lumbar degenerative disc disease.  It was noted that the Veteran 
also had radiating pain into his lower extremities and that his 
pain was chronic and sharp.  

On June 12, 2006, the Veteran's low back pain worsened and he 
sought private medical treatment at the emergency room at the 
Cape Canaveral Hospital.  It was noted that the Veteran was 
suffering from chronic worsening back pain following an epidural 
injection at VA three days earlier.  The Veteran was treated and 
discharged later that day.  According to a June 12, 2006 VA 
medical record, the Veteran called VA to inform his primary care 
physician that he went to the emergency room earlier in the day 
to seek treatment for his low back pain.  It was noted that this 
action was recommended by the Veteran's primary care physician 
earlier that morning.  Subsequently, the Veteran submitted his 
claim for payment or reimbursement of medical expenses incurred 
as a result of this treatment.  

Initially, in adjudicating a claim for reimbursement of medical 
expenses, the Board must make a factual determination as to 
whether VA gave prior authorization for the non-VA medical care 
that the Veteran received in a private facility on June 12, 2006.  
See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54.  This is a 
factual, not a medical, determination.  See Similes v. Brown, 5 
Vet. App. 555 (1994).  

Pursuant to 38 U.S.C.A. § 1703(a), "[w]hen [VA] facilities are 
not capable of furnishing . . . the care or services required, 
the Secretary, as authorized, may contract with non-Department 
facilities in order to furnish" certain care, including: 
"[h]ospital care or medical services for the treatment of 
medical emergencies which pose a serious threat to the life or 
health of a Veteran receiving medical services in a Department 
facility . . . until such time following the furnishing of care 
in the non-Department facility as the Veteran can be safely 
transferred to a Department facility."  38 U.S.C.A. § 
1703(a)(3); 38 C.F.R. § 17.52.  

The admission of a service member to a non-VA hospital at the 
expense of VA must be authorized in advance. 38 C.F.R. § 17.54; 
see also Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also 
General Counsel Opinion, VAOPGCCONCL 1-95 at 9 (Mar. 31, 1995) 
(stressing that authorization in advance is essential to any 
determination as to whether the Department is or is not going to 
furnish the contract care).  In the case of an emergency that 
existed at the time of admission, an authorization may be deemed 
a prior authorization if an application is made to VA within 72 
hours after the hour of admission.  38 C.F.R. § 17.54.

In the present case, there is no evidence that the Veteran sought 
and obtained proper authorization for VA payment of the private 
medical expenses he incurred while at the emergency room of the 
Cape Canaveral Hospital on June 12, 2006.  Therefore, payment is 
not warranted for expenses incurred in conjunction with that 
treatment under 38 U.S.C.A. § 1703.  

The Court has further stated that a "second avenue for potential 
relief for a veteran entitled to VA care forced to obtain 
treatment at a non-VA facility is 38 U.S.C. § 1728, which 
provides that the Secretary may, under such regulations as the 
Secretary shall prescribe, reimburse for the reasonable value of 
such care or services for which such veterans have made payment. 
Malone, 10 Vet. App. at 541.  

Such reimbursement is available only where - 

(1) such care or services were rendered in a medical 
emergency of such nature that delay would have been 
hazardous to life or health; 

(2) such care or services were rendered to a veteran 
in need thereof (A) for an adjudicated service-
connected disability, (B) for a nonservice-connected 
disability associated with and held to be aggravating 
a service-connected disability, (C) for any disability 
of a veteran who has a total disability permanent in 
nature from a service-connected disability, or (D) for 
any illness, injury, or dental condition in the case 
of a veteran who (i) is a participant in a vocational 
rehabilitation program (as defined in section 3101(9) 
of this title), and (ii) is medically determined to 
have been in need of care or treatment . . .; and 
(iii) [VA] or other Federal facilities were not 
feasibly available, and an attempt to use them 
beforehand would not have been reasonable, sound, 
wise, or practical.  

38 U.S.C.A. §1728(a) (West 2002); 38 C.F.R. § 17.120 (2010).  The 
statute was amended effective October 10, 2008.  However, the 
amendments do not provide any additional benefit that would 
assist the appellant.  

The Court has observed that, given the use by Congress of the 
conjunctive "and" in the statute, emphasized in the above 
quotation, "all three statutory requirements would have to be 
met before reimbursement could be authorized."  Malone, 10 Vet. 
App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); 
Hayes v. Brown, 6 Vet. App. 66 (1993).  

While delay in the Veteran's treatment may have been hazardous to 
life or health, the evidence demonstrates that the Veteran did 
not satisfy the second criteria outlined above.  The evidence 
does not demonstrate that the Veteran's treatment was for a 
service-connected disability or for a nonservice-connected 
disability that was affecting a service-connected disability.  
See Swinney v. Shinseki, 23. Vet. App. 257 (2009).  Moreover, 
there is nothing in the record that would indicate that the 
treatment was for a total permanent disability from a service-
connected disability or that the appellant was participating in a 
vocational rehabilitation program.  As such, reimbursement of 
medical expenses incurred at the Cape Canaveral Hospital in Cocoa 
Beach, Florida on June 12, 2006 under 38 U.S.C.A. § 1728 (West 
2002) is not warranted.  

Finally, 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) and 38 C.F.R. §§ 
17.1000-02 (2010).  Section 1725 was enacted as part of the 
Veterans Millennium Health Care and Benefits Act, Pub. L. 106-
117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999).  To be 
eligible for reimbursement under this authority the appellant 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 nature that a prudent layperson would have 
reasonably expected that delay in seeking 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 could be met by evidence establishing that 
a service member was brought to a hospital in an 
ambulance and the ambulance personnel determined that 
the nearest available appropriate level of care was 
not 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 service member could not have 
been safely transferred to a VA or other Federal 
facility (the medical emergency lasts only until the 
time the service member becomes stabilized); 

(e) At the time the emergency treatment was furnished, 
the service member was enrolled in the VA health care 
system and had received medical services under 
authority of 38 U.S.C.A. Chapter 17 within the 24 
month period preceding the furnishing of such 
emergency treatment; 

(f) The service member is financially liable to the 
provider of emergency treatment for the treatment; 

(g) The service member 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 service member has 
coverage under a health-plan contract but payment is 
barred because of a failure by the service member 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 service member or provider against a third 
party for payment of such treatment; and the service 
member 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 
service member's liability to the provider; and

(i) The service member 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 service member's, 
primarily those who receive emergency treatment for a 
service-connected disability).  

      38 C.F.R. § 17.1002 (2010).  

The Board notes that 38 U.S.C.A. § 1725 was amended in October 
2008.  In particular, subsection (a)(1) was amended by striking 
"may reimburse" and inserting "shall reimburse."  Also, in 
subsection (f)(1), relating to definitions, the existing 
subparagraph (c) was struck and a new subparagraph (c) was 
inserted to read as follows: 

The term emergency treatment means medical care or 
services furnished, in the judgment of the Secretary - 
(C) until - (i) such time as the veteran can be 
transferred safely to a Department facility or other 
Federal facility and such facility is capable of 
accepting such transfer; or (ii) such time as a 
Department facility or other Federal facility accepts 
such transfer if - (I) at the time the veteran could 
have been transferred safely to a Department facility 
or other Federal facility, no Department facility or 
other Federal facility agreed to accept such transfer; 
and (II) the non-Department facility in which such 
medical care or services was furnished made and 
documented reasonable attempts to transfer the Veteran 
to a Department facility or other Federal facility.  

Pub. L. No. 110-387, § 402, 122 Stat 4110, 4123 (2008).  The 
existence of a VA facility does not in and of itself mean that 
the VA facility was feasibly available.  See Cotton v. Brown, 7 
Vet. App. 325, 327 (1995).  

In the present case, the evidence of record establishes that the 
Cape Canaveral Hospital is a hospital emergency department.  The 
evidence also demonstrates that the Veteran was enrolled in the 
VA health care system at the time of treatment and that he had 
received medical services through this health system within the 
preceding 24 month period.  The Veteran is also financially 
liable to the service provider and private treatment records from 
June 12, 2006 indicate that the Veteran had no other health-care 
plan coverage in addition to VA.  There is also no evidence of 
any third party liability.  

Since the above criteria have been met, this case turns on 
whether criterion (b) and (c) have been satisfied in this case.  
Criterion (b) requires that the medical treatment be for a 
condition of such nature that a prudent layperson would have 
reasonably expected that delay in seeking medical attention would 
have been hazardous to life or health.  According to a June 9, 
2006 record, the Veteran was suffering from sharp shooting pain 
of the low back that radiated to the left leg and foot.  The 
Veteran was treated with a lumbar steroid epidural injection at 
this time.  The Veteran was informed that if he had any problems 
he was to contact the Saturn clinic or go to the nearest 
emergency room.  In a November 2008 statement, the Veteran's VA 
physician indicated that the Veteran had failed conservative 
therapy and that his low back pain had worsened as of June 9, 
2006.  It was also noted that the Veteran was instructed that if 
his symptoms did not improve that he should go to the emergency 
room as the VA did not have anything else to offer at this 
facility.  The physician indicated that he was concerned about 
the Veteran's radicular symptoms and felt that an emergency 
magnetic resonance image (MRI) may be necessary.  It was noted 
that because of the Veteran's emergency room visit, his case was 
expedited and he underwent back surgery in September 2006.  The 
Veteran also indicated in his May 2010 hearing testimony that on 
June 12, 2006, he awoke with an inability to walk or get out of 
bed.  Taking all of these factors into consideration, the Board 
concludes that a prudent layperson would have reasonably believed 
that a delay in seeking medical attention would have been 
hazardous to life or health, as the serious nature of the 
condition was clearly relayed to the Veteran by his VA physician.  

In addition, criterion (c) requires that a VA or other Federal 
facility not be feasibly available and that an attempt to use 
such a facility beforehand would not have been considered 
reasonable by a prudent layperson.  The record demonstrates that 
the Veteran's VA physician instructed him that his local VA 
facility had nothing else to offer in way of treatment for his 
low back.  This statement suggests that it was reasonable for the 
Veteran to believe that an attempt to use his local VA facility 
before seeking emergency treatment would not have been 
reasonable.  The Veteran also testified in May 2010 that the VA 
hospital in Tampa, Florida was more than 120 miles from his home.  
In light of this distance, along with the Veteran's inability to 
walk, his instructions to go to the nearest emergency room by his 
VA physician, and the notification to the Veteran that his local 
VA treatment center had nothing more to offer in the way of 
treatment, the Board concludes that a VA or other Federal 
facility was not feasibly available to the Veteran at the time of 
treatment on June 12, 2006.  

Therefore, the criteria for entitlement to reimbursement for the 
reasonable value of treatment received at Cape Canaveral Hospital 
in Cocoa Beach, Florida on June 12, 2006 have been met.  38 
U.S.C.A. § 1725 (West 2002); 38 C.F.R. § 17.1000-08 (2010).  
Accordingly, the benefit sought on appeal is granted.  


ORDER

Reimbursement or payment for the cost of private medical services 
provided to the appellant at the Cape Canaveral Hospital in Cocoa 
Beach, Florida on June 12, 2006 is granted.  



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs