Citation Nr: 1121211 Decision Date: 06/01/11 Archive Date: 06/09/11 DOCKET NO. 09-06 801A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to payment of unauthorized medical expenses for services rendered at Northern Hospital of Surrey County on June 16, 2008. REPRESENTATION Veteran represented by: The American :Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service in the Air Force from May 1970 to November 1972 and the Navy from February 1974 to December 1975 and from January 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) VISN 6 Centralized Fee Unit in Salem, Virginia. The issue of reimbursement for medical services rendered in August 2009 at Salem Vein Surgical Clinic has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is service-connected for arteriosclerotic cardiovascular disease with coronary bypass graft and hypertension, recurrent cerebrovascular accident, blindness in both eyes associated with recurrent cerebrovascular accident, severe stuttering associated with recurrent cerebrovascular accident, decreased visual field, right eye, associated with recurrent cerebral vascular accident, diabetes mellitus, moderate weakness left upper extremity associated with recurrent cerebrovascular accident, moderate weakness, left lower extremity associated with recurrent cerebral vascular accident and hiatal hernia with gastroesophageal reflux and duodenitis. 2. The evidence does not establish that the Veteran was treated 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. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for unauthorized medical services for treatment provided by Northern Hospital of Surrey County Highlands Regional Medical Center have not been met. 38 U.S.C.A. §§ 1725, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000, 17.1001, 17.1002 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, with implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326), VA has specific duties to notify and assist claimants in the development of claims. Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Nevertheless, the Veteran was provided with the notice required by the VCAA in October 2008. VA has also made reasonable efforts to assist the Veteran with respect to his claim. Consequently, the duties to notify and assist have been met. II. Analysis of Claim Generally, in cases where a claimant seeks reimbursement for unauthorized medical expenses, it must be determined (1) whether the services for which payment is sought were authorized by VA, and (2) whether the appellant is eligible for payment or reimbursement for services not previously authorized. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Under 38 C.F.R. § 17.130 (2010), it states, "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." Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities that has not been previously authorized may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. Section 1725 under the United States Code was enacted by Congress as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1553 (1999). The provisions of the Act became effective as of May 29, 2000. 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.A. 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 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.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). 38 C.F.R. § 17.1002. See also 38 U.S.C.A. § 1725. The criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The records show that the Veteran went to the emergency room at Northern Hospital of Surrey County on June 16, 2008 with complaints of abdominal pain. The Veteran reported the onset of symptoms two weeks prior. The record noted a past history of cardiac disease, including multiple CVA's and coronary artery bypass. The clinical impression was abdominal pain, acute. In September 2008, a physician reviewed the claims file and provided a medical opinion. The physician noted that the Veteran was seen in June 2008 for treatment of abdominal and flank pain; it was noted that this was of a gradual onset. The record reflects that personnel specifically noted associated symptoms of nausea and loss of appetite but did not circle "chest pain" on the list of symptoms. The nursing assessment indicated that this pain had been present for one week. The physical examination reflected that he was in no acute distress, that there was no respiratory distress and that he had regular heart rate and sinus rhythm. An electrocardiograph was interpreted as normal. His pain was described as substernal chest pain and stomach cramps which was worth with deep breaths. Based upon that information, the VA physician concluded that this was a non-emergent condition. Initially, in adjudicating a claim for payment of reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for non-VA medical care received at a private facility. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2010). This is a factual, not a medical determination. Similes v. Brown, 5 Vet. App. 555 (1994). The record does not show that VA provided authorization for the Veteran to receive the medical care at issue. The Veteran testified that he thought the care was approved because he had previously been approved for fee basis care. The Board notes that a letter on file indicates that the Veteran was authorized to receive fee basis cardiology care up to once every three months. The effective dates of the authorization were April 17, 2007 to April 16, 2008. In a March 2009 statement, the Veteran indicated that, on June 16, 2008, he spoke with an employee at the Salisbury VAMC. He indicated that the VA employee told him that he could not get into the Salisbury VAMC and he should go to a hospital. The Veteran's wife submitted at statement in September 2008, in which she related that on June 16th she and her husband were shopping when he began to have chest pain. He took 3 nitro's with no relief and she took him to the hospital a block away. At the hearing on appeal in February 2011, the Veteran and his wife testified that she took him to the hospital because he was having shortness of breath, was cold and clammy, and was sweating with pain under his left arm up to his neck and jaw. Medical records from Salisbury VAMC do not include any notation of contact with the Veteran on June 16, 2008 and do not specifically indicate that the Veteran was instructed to seek care at a private facility on that day. 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 the VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. The Veteran asserts that his treatment was emergent; however, he did not make an application to VA within 72 hours after admission on June 16, 2008. Based on the foregoing, the Board finds that medical services received on June 16, 2008 were not authorized. The Board finds that the preponderance of the evidence is against the Veteran's claim. The evidence does not show that the Veteran was treated for a condition of such a nature that a prudent layperson would have reasonably expected that a delay in seeking immediate medical attention in seeking immediate medical attention would have been hazardous to the veteran's life or health. While the Veteran and his wife have indicated that he felt his symptoms were emergent and have described them as a possible heart attack, the Emergency Room record does not show that he presented with such symptoms. While they are competent to describe the symptoms he experienced, their recollections are not considered credible, in that they are inconsistent with the Emergency Room record. The information recorded in the contemporaneously prepared records is considered more probative and accorded more weight, as it was recorded for treatment purposes at that time. Therefore, the Board concludes that the criteria for entitlement to payment of unauthorized medical expenses for services rendered at Northern Hospital of Surry County on June 16, 2008. As the evidence is not in relative equipoise, the Veteran may not be afforded the benefit-of-the-doubt. Rather, as there is a preponderance of the evidence against the claim, it must be denied. ORDER Payment of unauthorized medical expenses for services rendered at Northern Hospital of Surry County on June 16, 2008 is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs