Citation Nr: 1209255 Decision Date: 03/12/12 Archive Date: 03/28/12 DOCKET NO. 10-31 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to reimbursement or payment of unauthorized medical expenses for services rendered at Champlain Valley Physicians Hospital in Plattsburgh, New York, (CVPH) from February 17, 2010, to March 1, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from May 1939 to June 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Canandaigua, New York, Department of Veterans Affairs (VA) Medical Center (MC). In the April 2010 decision, the VAMC had denied payment or reimbursement from February 12, 2010, to March 1, 2010; however, in a May 2010 decision, it determined that the treatment the Veteran had received on February 12, 2010, in the emergency room warranted payment or reimbursement. The Board remanded this matter for further development in September 2010. Following this remand, with further development, additional days were approved via a September 2010 supplemental statement of the case. Specifically, that authorization was extended from February 12, 2010, through February 16, 2010, the point of stability per documentation in the claimant's file. The Veteran has indicated that he wishes to continue with the appeal. A review of the electronic file discloses no additional evidence pertinent to this matter. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence establishes that the Veteran's medical treatment at Champlain Valley Physicians Hospital (CVPH) from February 17, 2010, to March 1, 2010, was no longer for an emergent condition, as he was shown to have been stabilized and was capable of transfer to a VA facility. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for unauthorized medical services for treatment provided by Champlain Valley Physicians Hospital (CVPH) from February 17, 2010, to March 1, 2010, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 17.120, 17.121, (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103 , 5103A, and implemented at 38 C.F.R. § 3.159 , amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2011). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2011). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). The requirements under VCAA are not applicable where further assistance would not aid the Veteran in substantiating a claim, including if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2004); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). The Board notes that this matter was remanded in September 2010 to accomplish further development. In this regard, the remanded ordered that Social Worker Progress notes and/or reports of contact generated by the VA Medical Center (VAMC) between February 1, 2010, and March 1, 2010, be obtained. Additionally, any reports of contact from the Utilization Review Nurse pertaining to the Veteran's transfer/admission request were to be located and added to the record. Also, the April 2010 denial of the claim was to be added to the record. There has been substantial compliance with the above-noted remand instructions. Indeed, the VA notes from Social Worker Notes and Reports of Contact have been received and associated with the claims file. While the original denial of April 2010 has not been obtained, such omission is harmless error, in light of subsequent AOJ adjudicative actions that addressed this matter, to include the May 2010 administrative action that advised the Veteran of authorized treatment for emergency room visit of February 12, 2010, and the June 2010 administrative action further confirming that no treatment beyond the February 12, 2010, emergency room treatment was authorized. Notice of the additional authorization of treatment beyond February 12, 2010, up to February 16, 2010, with continued denial from February 17, 2010, to March 1, 2010, was provided to the Veteran in the September 2010 supplemental statement of the case (SSOC). Finally, the February 2010 SSOC further provided the Veteran with rationale for the continued denial of reimbursement for private treatment from February 17, 2010, to March 1, 2010. From such communications, a reasonable person could be expected to understand what information was required to substantiate the claim. Based on the foregoing, the Board's decision to proceed in adjudicating this claim, rather than remanding it for assistance or additional notification, does not prejudice the appellant in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Reimbursement for Unauthorized Medical Expenses The Veteran contends that he is entitled to reimbursement for private medical treatment from February 17, 2010, to March 1, 2010, at Champlain Valley Physicians Hospital (CVPH). He alleges that all this treatment was for emergent conditions for which VA facilities were not reasonably available. He has indicated that the nearest VA facility was 170 miles away. It is noted that at the time of such treatment the Veteran was in receipt of a 100 percent permanent disability rating for a service-connected disability. His medical expenses were generated beginning in February 2010, and thus the effective date of this matter is after revisions to the applicable law under 38 U.S.C.A. § 1728 were made effective October 10, 2008. 38 U.S.C.A. § 1728 provides that the Secretary shall, under such regulations as the Secretary prescribes, reimburse veterans eligible for hospital care or medical services under this chapter for the customary and usual charges of emergency treatment (including travel and incidental expenses under the terms and conditions set forth in section 111 of this title) for which such veterans have made payment, from sources other than the Department, where such emergency treatment was rendered to such veterans in need thereof for any of the following: (1) An adjudicated service-connected disability; (2) A non-service-connected disability associated with and held to be aggravating a service-connected disability; (3) Any disability of a veteran if the veteran has a total disability permanent in nature from a service-connected disability; (4) Any illness, injury, or dental condition of a veteran who (A) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title); and (B) is medically determined to have been in need of care or treatment to make possible the veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. 38 U.S.C.A. § 1728(a) (effective October 10, 2008). Also, the provisions of 38 U.S.C.A. § 1728 provide that the term "emergency treatment" has the meaning given such term in section 1725(f)(1). 38 U.S.C.A. § 1728(c) (effective October 10, 2008). The statutory provisions of section 1725(f)(1), effective October 10, 2008, define the term "emergency treatment" as medical care or services furnished, in the judgment of the Secretary (a) when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (b) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and until either (c) such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or such time as a Department facility or other Federal facility accepts such transfer if 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 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. 38 U.S.C.A. § 1725(f)(1) (effective October 10, 2008). Under the provisions of 38 C.F.R. § 17.120 (2011), in order to be entitled to payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility, a claimant must show: (a) The care and services rendered were: (1) for an adjudicated service-connected disability, (2) for a non-service-connected disability 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, 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) (formerly § 17.48(j)); and (b) the services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were 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. Claims for payment or reimbursement of the costs of emergency hospital care or medical services not previously authorized will not be approved for any period beyond the date on which the medical emergency ended. 38 C.F.R. § 17.121 . For the purpose of payment or reimbursement of the expense of emergency hospital care or medical services not previously authorized, an emergency shall be deemed to have ended at that point when a VA physician has determined that, based on sound medical judgment, a veteran: (a) who received emergency hospital care could have been transferred from the non-VA facility to a VA medical center for continuation of treatment for the disability, or (b) who received emergency medical services, could have reported to a VA medical center for continuation of treatment for the disability. From that point on, no additional care in a non-VA facility will be approved for payment by VA. 38 C.F.R. § 17.121 . If any one of the foregoing requirements is lacking, the benefit sought may not be granted. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). In this case, the Veteran was granted service connection for a psychiatric disorder resulting from combat and classified as a psychoneurosis, anxiety state, in a June 1945 rating decision, with an initial 50 percent rating assigned. He was later awarded a 100 percent rating for a psychiatric disorder reclassified as a schizophrenic reaction, which has remained in effect since March 7, 1975. He thus meets the initial criteria for consideration of this matter under 38 U.S.C.A. § 1728, as he has a total disability, permanent in nature, resulting from a service- connected disability. On February 12, 2010, the Veteran was admitted to CVPH in the emergency room (ER) due to worsening pain in the left hip following a fall 4 days earlier. The pain had become intractable and he could not walk. Reportedly, the VA facility in Plattsburgh had been contacted and they advised that the Veteran go to CVPN. At the time of ER treatment on February 12, 2010, examination revealed an irregular heart sound without murmur, rub or gallop. X-ray showed fracture of the right superior and inferior pubic ramus. There was no hip fracture. The assessment was intractable pain due to pubic ramus fracture. It was determined that admission was required, and the Veteran was prescribed analgesics. The next morning, physical therapy (PT) and an occupational therapy (OT) consult were undertaken for a discharge functional evaluation. It was anticipated that he might need some time to become independent and ambulatory. He was also assessed with coronary artery disease (CAD) that was stable, and hypertension with continued treatment with chronic medications. His electrocardiogram (EKG) revealed a mild sinus bradycardia in sinus rhythm, despite a history of paroxysmal atrial fibrillation, unchanged since November 2008. He also was assessed with a Stage III chronic renal failure, continue chronic medications and check creatinine. On February 13, 2010, the Veteran was evaluated for PT and OT rehabilitation. He did quite well on PT evaluation, and was able to ambulate with a wheeled walker. He was expected to benefit from a few more PT sessions to continue progressing with ambulation and transfers from bed, and to practice 2-3 stairs. OT evaluation also showed that he could doff socks with a shoe horn and socks with a sock aid. He could sit and stand and take 5 steps with assistive aids. He declined further mobility at this time and wanted a home health aide to assist with activities of daily living until he was able to move better. On February 14, 2010, while still hospitalized at CVPH, the Veteran complained of pain and constipation and was assessed with hypertension, sinus bradycardia, eosinoperilia, anemia, and acute renal failure (ARF), improving. IV fluids were discontinued. On February 15, 2010, the pain in the right groin had receded. The diagnosis of suprapubic ramus fracture was noted, as was history of CHF. PT was required. On February 16, 2010, there were complaints of severe sedation from taking 2 Percocets, with an unsteady gait, per patient. The assessment was right superior pubic ramus fracture, with plans to continue analgesic, PT and OT. He also was assessed with CAD, stable, chronic A-fib, hypertension and chronic renal failure. Also on February 16, 2010, the VA was notified by CVPH of the admission to this facility on February 12, 2010. The caseworker from the private facility advised of the history of the fall with resulting non surgical fracture of the pubic ramus. The Veteran was described as having developed acute renal failure after taking NSAIDS. This condition was resolving. He was described as not wanting to go to rehabilitation. His wife was able to care for him at home and was looking into home health care options. The case manager would call with a discharge date. On February 17, 2010, the Veteran's right hip pain had improved slightly. He was oriented on examination, with chest clear, regular heart rhythm, and a soft and nontender abdomen. There were neurological deficits. His right lower extremity was less swollen. He was assessed with right superior right ramus fracture. He was to continue his PT/OT. An ultrasound was to be scheduled for the right leg to rule out deep venous thrombosis (DVT). He continued to carry a diagnosis of CAD, chronic A-fib, hypertension and chronic renal failure. Also on February 17, 2010, the Veteran's wife came to the clinic to advise that the Veteran had fallen on February 14 (incorrect date) and fractured his pelvis. He was still in the hospital at CVPH, but had concerns about where he would go to attend PT. Per his wife, he wanted a local consult placed for PT. She reported that he was not steady on his feet, was very dizzy and in pain. He was not able to ride the van for 3 hours and then do PT and ride back 3 hours later. He was noted to be 90 years old and very fragile. The VA placed the consult on the same day, with no guarantee that it would be allowed. The private records beyond the time of VA approved treatment continued to show that the Veteran remained at the CVPH until March 1, 2010, when he was transferred to another facility. Among such records, a February 18, 2010, report revealed several episodes of breathing trouble. Otherwise he was oriented, his chest was clear, his heart had regular rhythm, abdomen was non tender and he had no neurological deficit. He continued with PT and OT. On February 19, 2010, he continued with PT and OT, with no significant findings other than a questionable small area of ischemia. A cardiovacular consult was planned. A VA note entered on February 23, 2010, reflects that the Veteran was to have been discharged on February 18, 2010. However, he remained an inpatient for subacute rehabilitation. A consult was placed by his primary doctor calling to get definitive plans at this time. On February 24, 2010, the VA contacted a fill in caseworker for CVPH and was advised that per her notes, his IV had been discontinued on February 14, 2010. On February 18, 2010, he had developed chest pain and had some cardiovascular workups. The VA was not notified of his change in status. Per phone call with the case worker the prior week, the Veteran had wanted to go home with his wife. The caseworker was given the name of VA's home health care facilitator. An addendum on March 1, 2010 indicated that a consult had been placed through the VA for acute rehabilitation consult for 15 outpatient visits with a non VA PT provider for his broken pelvis. He appeared to be stable for transfer to the Albany VA medical facility (AVAMCH) on February 16, 2010. The March 1, 2010, discharge report from CVPH related the history of the Veteran's injury to the right pubic ramus, with fracture. He was noted to have been evaluated by PT and OT. The report also indicated a history of problems with delirium and confusion on increased doses of pain medication. The Veteran was then placed on a regimen that kept him relatively comfortable without causing confusion. He also was noted to have additional issues on admission, including chronic renal insufficiency with associated hypermagnesia and hyperkalemia. The hyperkalemia had been present since 2008, according to the records. His urine output remained good and creatinine was in its usual elevated range. An episode of shortness of breath was noted, which had been evaluated. The chest X-ray showed no significant fluid. He had normal left ventricular size and systolic function with ejection fraction of 60 percent on further testing. There was also some mild valvular aortic sclerosis without stenosis and mild AI, moderate tricuspid regurgitation and mild pulmonary hypertension. Given that he had no recurrent symptoms, no further cardiac workup was requested. He was deemed to have made progress with his PT and OT but would benefit from further rehab. Consequently he was being transferred to a transitional unit. The final diagnoses included right superior and inferior pubic rami fracture, chronic renal insufficiency, hyperkalemia, hypermagnesia, paroxysmal A-fib, hypertension, benign prostate hypertrophy, and transient orthostatic hypertension, now resolved. In May 2010, a controlled correspondence from the Chief of Staff of the VA medical department reviewed the records and approved treatment only for the initial ER visit, and denied all other treatment. Subsequently a June 2010 controlled correspondence from the Chief of Staff of the VA medical department continued to deny treatment beyond the February 12, 2010, ER treatment, explaining that had the Veteran needed special transportation, VA would have provided or paid for it. Thereafter, a September 2010 controlled correspondence from the Chief of Staff of the VA medical department reviewed the records and approved treatment from February 12, 2010, to February 16, 2010. The treatment from February 17, 2010, to March 1, 2010, was not approved. No explanation was given for this decision. In February 2011, a controlled correspondence from the Chief of Staff of the VA medical department reviewed the records and the history of the approved treatment from February 12, 2010, to February 16, 2010, with the denial of reimbursement for the treatment from February 17, 2010, to March 1, 2010. The Chief of Staff elaborated on the rationale for this decision. In essence, the claim was denied from February 17, 2010, onward because the Veteran's vital signs had been stable for the period in question. The Veteran was only waiting for rehabilitation services and did not need an acute bed. Additionally, services were described as available at the VA in Albany and it was noted that he could have been transferred. Based on a review of the foregoing, the Board finds that there is no basis to allow reimbursement of unauthorized medical expenses for the private medical treatment from February 17, 2010, to March 1, 2010. From that point, the evidence shows that the Veteran was stable and could have been transferred from the private hospital to a VA medical center for continuation of treatment (which consistent of only rehabilitation services). Although the Veteran has argued that the distance of 170 miles to the VA facility essentially rendered it unavailable, there is no need to address whether VA facilities were reasonably available, as there was no longer a medical emergency as of February 17, 2010, per the determination of the VA physician (Chief of Staff). This was based on sound medical judgment following review of the medical evidence. 38 C.F.R. § 17.121. As all of the criteria must be met in order to establish entitlement to payment or reimbursement of medical expenses under the statute, the Board need not discuss further the criterion of whether a VA or other Federal facility was feasibly available. To the extent that the Veteran, or other lay persons, asserts that a medical emergency continued to exist past February 16, 2010, such lay opinion is not competent evidence on the matter. A lay person is only qualified to report evidence which is capable of lay observation; and not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability or a determination that a particular situation constitutes a medical emergency. 38 C.F.R. § 3.159(a)(1)-(2) ; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, without more, such opinion cannot be considered competent evidence to support the Veteran's claim. Accordingly, there is no factual basis to establish entitlement to payment or reimbursement of the previously unauthorized expenses for private medical care at CVPH from February 17, 2010, to March 1, 2010, under the governing legal authority. As such, the claim on appeal must be denied. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to reimbursement or payment of unauthorized medical expenses for emergency services rendered at Champlain Valley Physicians Hospital (CVPH) from February 17, 2010 to March 1, 2010, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs