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