Citation Nr: 1110906	
Decision Date: 03/18/11    Archive Date: 03/30/11

DOCKET NO.  09-46 598A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in North Florida/South Georgia Veteran's Health System, Malcolm Randall VA Medical Center



THE ISSUE

Entitlement to payment or reimbursement for unauthorized private medical treatment incurred on July 5, 2009.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 2000 to January 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the North Florida/South Georgia Veteran's Health System, Malcolm Randall VA Medical Center.


FINDINGS OF FACT

There was no prior VA authorization for the Veteran's private medical treatment on July 5, 2009, and the treatment is not shown to have been provided as a result of a medical emergency.


CONCLUSION OF LAW

VA reimbursement or payment of unauthorized private medical expenses incurred on July 5, 2009, is not warranted. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2010); 38 C.F.R. §§ 17.120, 17.1002, 17.1005 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, providing that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established."  73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008).  The Veteran was adequately notified of the information necessary to substantiate his claim in November 2009.

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  Further attempts to obtain additional evidence would be futile.  There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant.

To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by the Department of Veterans Affairs, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances: 

(a) For Veterans with service connected disabilities.  Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service- connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service- connected disability (does not apply outside of the States, Territories, and possessions of the United State, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in §17.48(j); and

(b) In a medical emergency.  Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and

(c) When Federal facilities are unavailable.  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, or treatment had been or would have been refused.

38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120.

Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility.  Hayes v. Brown, 6 Vet. App. 66, 69 (1993); see also Malone v. Gober, 10 Vet. App. 539, 542 (1997), (citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995)); H.R. Rep. No. 93-368, at 9 (July 10, 1973) ("[The proposed provision a]uthorizes reimbursement of certain Veterans who have service-connected disabilities, under limited circumstances, for reasonable value of hospital care or medical services . . . from sources other than the VA. Eligible Veterans are those receiving treatment for a service-connected disability. . . . Services must be rendered in a medical emergency and VA or other Federal facilities must not be feasibly available.").

The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that, although a claimant was eligible for VA hospital care under 38 U.S.C.A. § 1710, there were no provisions under that section to allow for reimbursement of medical expenses incurred at a non-VA facility.  Zimick v. West, 11 Vet. App. 45, 50 (1998) (citing Malone, 10 Vet. App. at 543).  It was also noted that payments from the Federal Treasury must be authorized by statute, and that government employees may not make obligations which were beyond the scope authorized by statute.  Id. (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. 1341(a)).

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 and 38 C.F.R. §§ 17.1000-1008.  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.

Reimbursement or payment for emergency treatment may be made only for the period from the beginning of the initial evaluation treatment until such time as the Veteran could be safely discharged or transferred to a VA facility or other Federal facility.  For purposes of payment under 38 U.S.C. § 1725, VA deems it safe for the Veteran to be transferred once the Veteran has become stabilized.  38 C.F.R. § 17.1005(b).

In this case, private hospital records show the Veteran received treatment at Florida Hospital Flagler on July 5, 2009.  He was treated for insect bites on his toes and foot.  An emergency physician record noted the Veteran complained of an insect bite to the foot.  It was reported that the bite was itchy and painful.  The character was indicated to be papular and the bites were noted to be warm and tender with swelling.  A check of the Veteran's systems was found to be negative and the Veteran was noted to have no respiratory distress and his breathing sounds were normal.  The identified cause was found to be an ant bite.  It was noted to have occurred at home and the Veteran reported similar symptoms two weeks prior.  The report noted the Veteran was discharged to his home in an unchanged condition.

The Veteran in this case contends that his condition represented an emergent condition and that his care should be reimbursed by VA.  Specifically, the Veteran claims that he had trouble breathing after he was bitten by fire ants.  He reports that he was informed that he is allergic to ant bites.  He stated that he called VA and was told to go to the nearest emergency room because of his breathing problems.  

VA records show that at the time the non-VA medical treatment was provided in this case the Veteran had adjudicated service-connected disabilities, including sleep apnea (50%), loss of field vision (20%), hiatal hernia (10%), auditory canal disease (10%), Tendon inflammation (10%), spondylolisthesis or segmental instability (10%), intervertebral disc syndrome (10%), allergic or vasomotor rhinitis (0%), and hearing loss (0%).  His combined service-connected disability rating was 80 percent.  VA requested a medical opinion that found that the treatment provided was non-emergent.  Specifically, the physician found that there was no information recorded in the medical documentation to indicate that the Veteran experienced respiratory or cardiac symptoms.  

Based upon the available evidence, the Board finds there was no prior VA authorization for the Veteran's private medical treatment on July 5, 2009.  In this regard, the Board notes that the Veteran may have been told by VA to seek emergency room treatment.  This, however, does not constitute VA payment authorization.  In addition, the treatment is not shown to have been provided as a result of a medical emergency.  Although the treatment at issue was provided by an emergency care provider, the probative evidence of record demonstrates the treatment was not 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.  The Veteran's statements as to the severity of his symptoms, including breathing problems, are inconsistent with the objective medical findings noted by the private emergency room physician.  That evidence indicates the Veteran did not have respiratory distress and that his breathing sounds were normal.  Therefore, the appeal must be denied.

When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the Veteran's claim.


ORDER

Entitlement to payment or reimbursement for unauthorized private medical treatment incurred on July 5, 2009, is denied.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs