Citation Nr: 1224924 Decision Date: 07/18/12 Archive Date: 07/20/12 DOCKET NO. 11-17 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at Munroe Regional Medical Center on March 7, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1943 to May 1946 and in October 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an administrative decision by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Veteran requested a hearing in this matter and a hearing was scheduled for May 2012. He failed to report. The Board will proceed with adjudication of his claim. 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). FINDINGS OF FACT 1. The Veteran is service connected for the residuals of a healed transverse process fracture at L2 to L4 with traumatic arthritis, currently evaluated as 20 percent disabling; and left L5 radiculopathy, currently evaluated as 10 percent disabling. He has a combined evaluation of 30 percent. 2. The Veteran received treatment for a non-service connected urinary tract infection at Munroe Regional Medical Center in Ocola, Florida, on March 7, 2011. 3. The Veteran's treatment was not previously authorized by VA. 4. The treatment received on March 7, 2011 was not for a medical emergency, and the Veteran's actions were not consistent with a belief that a delay in seeking immediate medical attention would have been hazardous to life or health. CONCLUSION OF LAW The criteria for entitlement to reimbursement or payment by the Department of Veterans Affairs for the cost of unauthorized medical expenses for treatment on March 7, 2011 at Munroe Regional Medical Center have not been met. 38 U.S.C.A. §§ 1703(a), 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.130, 17.1002 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Arguably, the VCAA does not apply to this case, because the governing regulations reside in Part 17 of 38 C.F.R. 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Assuming arguendo that VCAA notice was required, the record shows that the Veteran received a VCAA letter in April 2011 that meets the notice requirements of Pelegrini. While this letter was not provided to the Veteran until after the initial adjudication of his claim, he has been provided an opportunity to respond and submit argument since the receipt of this information. This case turns on the question of whether the Veteran's treatment was for a medical emergency, and whether or not a reasonable person would have believed that a delay in seeking immediate medical attention would have been hazardous to life or health. The Veteran has made arguments in his March 2011 Notice of Disagreement and in his April 2011 Substantive Appeal demonstrating his knowledge that evidence pertaining to whether or not his treatment was for an emergency and whether he believed a delay was hazardous to life or health was needed to substantiate the claim. Notably, neither the Veteran nor his representative contends that the Veteran has been prejudiced by the delay in notification. There is no indication that there is any outstanding evidence that is relevant to this claim. The Board will proceed with adjudication of this appeal. Reimbursement for Unauthorized Medical Expenses The Veteran contends that he was authorized by VA to receive treatment at a private facility for his right flank pain. He argues that he called the VA outpatient clinic in his hometown of Ocola, Florida, and was told that they were unable to help him. The Veteran states that they directed him to proceed to the nearest emergency room. The Veteran further contends that he believed his condition was an emergency, and that a prudent layperson would have reasonably expected that a delay in seeking immediate medical attention would have been hazardous to his life or health. He states that VA facilities were not feasibly available, as his wife was not physically able to drive him to the nearest VA emergency room, and as he was in no condition to drive there on his own. 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 through a private facility. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994). In this case, an administrative note dated February 11, 2011 from the Ocola, Florida, VA outpatient clinic states that the Veteran called requesting medication for painful urination. The note states that the Veteran was made aware that he should have urinalysis and cultures before medication could be given. The Veteran stated that he did not want to send a urine sample and would go to his private doctor for treatment. He then hung up. There is no record of any subsequent phone call from the Veteran to this or any other VA facility prior to receiving the private treatment in question on March 7, 2011. The Board finds that the VA did not give prior authorization. The Veteran argues that he was told by the VA outpatient clinic that they could not do anything for him, and that he should go to a local hospital emergency room. In fact, while the VA outpatient clinic told the Veteran that they could not give him medication without first running the proper tests, it appears they offered to provide him these tests. The Veteran declined to undergo testing at the VA facility. The record further indicates that it was the Veteran who first said he would go to a private facility instead being told to do so by the VA. There is no record of a phone call on or nearer to the date the Veteran actually received his treatment, and the Veteran does not report having called the VA outpatient clinic on more than one occasion. The Board observes that the content of the call was transcribed nearly a month before the Veteran received the private treatment in question, and well before he made a claim for reimbursement for that treatment. As this is the only call of record, and as it clearly does not authorize the Veteran to obtain private treatment, the Board finds that the VA did not give prior authorization for the non-VA medical care that was received by the Veteran. The Board will now turn to the question of whether or not reimbursement for the unauthorized medical expenses is supported by the evidence of record. Where private medical expenses have not been previously authorized by VA, as here, in order to establish entitlement to payment or reimbursement for such unauthorized expenses, a veteran must satisfy the criteria outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725, and their accompanying regulations. Relevant to the instant case, under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 a veteran may receive VA payment or reimbursement of non-VA medical treatment, to include transportation, which VA has not previously authorized, under limited circumstances. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The provisions of 38 C.F.R. § 17.120 state that 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 VA, or of any medical services not previously authorized including transportation may be paid on the basis of a claim timely filed, under the following circumstances: (a) 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; (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.A. Chapter 31 and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.48(j) ; and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, and (c) 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 C.F.R. § 17.120 (2011), see also Beverly v. Nicholson, 19 Vet. App. 394, 402 (2005); Hennessey v. Brown, 7 Vet. App. 143, 146 (1994); 38 U.S.C.A. § 1728; see also 38 C.F.R. § 17.1002(i) (noting that 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"). Because the provisions in 38 C.F.R. § 17.120 are conjunctive, not disjunctive, a veteran must satisfy each of these enumerated criteria in order to establish entitlement to reimbursement or payment of not pre-authorized, private (non-VA) medical expenses. Zimick v. West, 11 Vet. App. 45, 49 (1998); Cotton v. Brown, 7 Vet. App. 325, 327 (1995) ("All three statutory requirements must be met before reimbursement may be authorized"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that the Veteran is service connected for the residuals of a healed transverse process fracture at L2 to L4 with traumatic arthritis, currently evaluated as 20 percent disabling; and left L5 radiculopathy, currently evaluated as 10 percent disabling. He has a combined evaluation of 30 percent. He is not in receipt of a total rating based on individual unemployability due to service connected disabilities. The private medical records show that the Veteran was seen at the emergency department of the Munroe Regional Medical Center on March 7, 2011 with complaints of right flank pain and a burning pain on urination. The onset of the presenting problem was approximately one week previously. The history was obtained from the Veteran and discussed with his wife, and was deemed to be accurate. The pain was described as an intermittent moderate flank and back pain localized to the right and left side. The Veteran rated the pain as a 6 on a scale to 10, with 10 being the worst pain he could imagine. After providing the Veteran with a computed tomography scan, giving him intravenous antibiotics, and sending samples for laboratory studies, the diagnosis was a urinary tract infection. He was discharged to home without admission to the hospital. The Board finds that entitlement to reimbursement for the unauthorized medical expenses incurred on March 7, 2011 is not authorized under the provisions of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. The condition for which the Veteran was treated was a urinary tract infection. The Veteran is not service connected for a urinary tract infection. It is not argued or demonstrated that the urinary tract infection was associated with and held to be aggravating one of the Veteran's service connected disabilities. He does not have a total disability permanent in nature resulting from a service- connected disability. Finally, there is no evidence that the Veteran is participating in a rehabilitation program under 38 U.S.C.A. Chapter 31. The first requirement for reimbursement under these provisions has not been met. Therefore, the remaining requirements need not be addressed, and reimbursement is not possible under these provisions. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. As the Veteran's treatment was for a nonservice connected urinary tract infection, the Board has also considered entitlement to reimbursement under 38 U.S.C.A. § 1725, which was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L, No. 106-177, 113 Stat. 1553 (1999) (effective May 29, 2000). To be entitled to the payment for emergency care under this Act, the evidence must meet all of the following criteria: (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 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. After consideration of the Veteran's contentions and the medical evidence, the Board also finds that reimbursement of the medical expenses in question may not be made under these provisions. The evidence does not show that he was treated for an emergency medical condition or 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 evidence shows that the Veteran first called to inquire about his symptoms at the VA outpatient clinic on February 11, 2011. This was nearly a month before he finally sought treatment on March 7, 2011. Furthermore, the treatment records from that visit show that the Veteran had been experiencing symptoms for a week. Finally, his pain was described as intermittent, and as a 6 on a scale to 10. He was treated and released the same day. The Board finds that Veteran's delay in seeking treatment of at least a week and maybe as long as a month is not consistent with an emergency or a belief that delay in seeking immediate medical attention would have been hazardous to life or health. Moreover, the Veteran apparently did not believe his condition was serious enough to call for an ambulance or other emergency personnel, and instead drove himself to the emergency room. (CONTINUED ON NEXT PAGE) Therefore, as the Veteran has failed to meet at least one of the provisions of 38 C.F.R. § 17.1002 when all of them must be met before reimbursement can be made, payment for his unauthorized medical expenses cannot be allowed. ORDER Entitlement to reimbursement for unauthorized medical expenses incurred at Munroe Regional Medical Center on March 7, 2011 is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs