Citation Nr: 1238245 Decision Date: 11/08/12 Archive Date: 11/16/12 DOCKET NO. 10-15 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Jackson, Mississippi THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment provided on February 15, 2009, at the emergency room of Tulane University Hospital and Clinic. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active military service with the United States Army from September 1962 to September 1965. This matter is before the Board of Veterans' Appeals, hereinafter the Board, on appeal from an October 2009 letter decision of the Department of Veterans Affairs (VA), South Central VA Health Care Network (VAMC), in Jackson, Mississippi, that denied the above claim. In conjunction with his appeal, the appellant provided testimony before the undersigned Veterans Law Judge (VLJ) via a videoconference hearing in March 2011. A transcript of that hearing was prepared and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claims that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant and the accredited representative have not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim for reimbursement for medical expenses and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. 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). The issues of entitlement to payment or reimbursement for the cost of medical treatment provided on March 12, 2009, June 5, 2009, and June 6, 2009, at the Tulane University Hospital and Clinic have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Evidence indicates that at the time of the February 15, 2009, private medical treatment received at the emergency room of Tulane University Hospital and Clinic, the appellant had been awarded a total disability evaluation based on individual unemployability due to his service-connected disorders (TDIU) and had been found to be permanently and totally disabled due to his service-connected disabilities. 2. The evidence of record indicates that the medical care the appellant received on February 15, 2009, was for a condition that a prudent layperson would have reasonably believed that a delay in treatment would have been hazardous to his life or health, and there were no VA medical facilities reasonably available. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, private medical expenses incurred by the appellant at the emergency room of Tulane University Hospital and Clinic, on February 15, 2009, have been met. 38 U.S.C.A. §1725, 1728, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 17.54, 17.120, 17.121, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the claims on appeal being addressed herein have been properly developed and no further assistance to the appellant is required in order to comply with the duty to notify or assist. The Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (2000) introduced several fundamental changes into the VA adjudication process. These changes were codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. This case concerns a legal determination of whether the appellant is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§1725 or 1728 (West 2011). In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. The provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R 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 veteran 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 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 to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132 (2012). In a letter issued by the VA in October 2009, the appellant was provided with the notice generally outlining his and VA's responsibilities in obtaining evidence in support of the claims. While the letter was issued prior to the initial adjudication of the claim. Nevertheless, the claim was later readjudicated in Statement of the Case issued in February 2010. In the Statement of the Case, VA described its reasons and bases for denying the claim. Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, lay and clinical evidence relating to both the claims on appeal is on file and the appellant has not identified any additional information, not currently of record, which must sought in accordance with the duty to assist. Consequently, the Board finds that the duty to notify and assist has been met. II. Factual Background The appellant has come before the Board asking that the denial of benefits by the VA Medical Center (VAMC) be set aside and that he be reimbursed for costs incurred as a result of treatment he received on February 15, 2009. As an initial matter, the record reflects that the appellant resides in Gretna, Louisiana. The nearest VA medical treatment facility is located in New Orleans. However, the facility does not offer emergency room care. Additionally, the appellant is service-connected for paralysis of all radicular nerve groups, rated as 40 percent disabling, blindness in one eye, rated as 30 percent disabling, limited motion in the cervical segment of the spine, and paralysis of all radicular nerve groups, rated as 30 percent disabling. His combined rating is 80 percent. In addition to his service-connected disabilities, he also has been treated for coronary artery disease, hypertension, and a thyroid dysfunction. At the time of the private medical care, he was also receiving a total disability evaluation based on individual unemployability (TDIU) due to his service-connected disorders and he has been found to be permanently and totally disabled as a result of his service-connected disorders. For approximately one week prior to the 15th of February 2009, the appellant had been experiencing pain in the right foot. On the day of the 15th of February, the pain exponentailly increased to the point that the appellant was having difficulty walking or putting any weight on his right foot. After waiting all day to see if the pain would subside, and after he determined that he could not go to sleep, he presented himself at the emergency room of the Tulane University Hospital and Clinic. This occurred at approximately two in the morning (0200 hours). The appellant was examined and was found to have swelling, erythema, and exquisite tenderness over the metatarsophalangeal (MTP) joint of the right great toe. Prednisone was administered immediately and the appellant was instructed to take the drug for a number of days until the symptoms and pain subsided. He was instructed to follow-up at a VA facility within a week for re-evaluation. After returning home and then receiving an invoice for payment for the service provided by the Tulane University Hospital, the appellant requested of the VA that he be reimbursed for the services that were provided. He averred that since he was in receipt of a total disability evaluation, he had been found to be permanently and totally disabled, and because the VAMC did not provide emergency room services, he should not have to pay for any medical treatment received at a private facility. The VAMC in Jackson has denied his claim based on its assessment that the treatment that was rendered was "non-emergent" and that there were other VA faculties available to him. III. Analysis In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2012); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710], 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) (West 2002); 38 C.F.R. § 17.52 (2012). The admission of an appellant to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2011); see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("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 (2012). In the present case, there is no evidence that the appellant sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred on the 15th of February, 2009. The record also does not indicate that the appellant may have contacted the VA within 72 hours of the initial care at the Tulane University Hospital. Accordingly, the Board must conclude that prior authorization for the private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54 (2012), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002). When the veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2010). Application of either statute is generally dependent on whether he has an adjudicated service-connected disability. Initially, the Board notes that under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17.1008 (2012). However, in the case at issue, section 1725 relating to treatment of nonservice-connected disorders does not apply since the Veteran has been granted TDIU, as explained further below. See 38 U.S.C.A. § 1728(a). See also 38 C.F.R. §§ 17.1000, 17.1002(i). Failure to further consider section 1725 is of no consequence here, since the definition of what constitutes "emergency treatment" under either 38 U.S.C.A. § 1725 or § 1728 is now the same. In light of the fact that a TDIU (a total disability rating) has been awarded to the appellant, the applicable law in this case is 38 U.S.C. § 1728. Prior to October 10, 2008, Section 1728(a), Title 38, United States Code, provided that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities 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 non service-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; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. See also 38 C.F.R. § 17.120 (2007). Under the new version of 38 U.S.C.A. § 1728 (West 2002 & Supp. 2010), the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability, etcetera. However, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to the word "shall." In addition, and most importantly, the new law expands the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary- (A) when Department 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 (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. See 38 U.S.C.A. § 1725 and § 1728 (West 2002 & Supp. 2010). All three of these statutory requirements must be met before any payment may be authorized. See Fritz v. Nicholson, 20 Vet. App. 507 (2006); see also Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C.A. § 1728 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. As previously reported, the appellant's claim for payment or reimbursement of unauthorized, private medical expenses associated with treatment provided at the Emergency Room of the Tulane University Hospital, on February 15, 2009, was denied because it was found that the appellant's condition for which he received treatment was not emergent and VA facilities were available. Thus, the first pertinent issue is whether the treatment (or the need for said treatment) was 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; and (2) whether 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. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2010); 38 C.F.R. § 17.120(b), (c) (2012). The Court has held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). The Court has noted that when weighing the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent, the Board may consider objective evidence. Similarly, the Board may consider evidence regarding whether the treatment ultimately rendered was for an emergent condition. Id. at 265-66. The Board has considered under the circumstances present at the time the Veteran sought the treatment at issue on February 15, 2009, at approximately 0200 in the morning, at the Tulane University Hospital, whether a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to his health or life. See Swinney v. Shinseki, 23 Vet. App. 257, 264 (2009). For the reasons set forth below, the Board finds that payment or reimbursement is warranted. The record reflects that prior to February 15, 2009, the appellant had been having pain and discomfort in his lower right extremity. It is noted that the appellant had been previously treated for cardiac symptoms and manifestations, and he had been found have serious neurological problems in the lower extremities (that had been service-connected). In the early morning hours of February 15th, the appellant was not only experiencing excruciating pain in the foot, but he has claimed that he was unable to walk or put weight on the foot/leg. When the appellant presented himself to the Emergency Room of the Tulane University Hospital, per the treatment records, the Emergency Room personnel treated the appellant as someone who needed immediate emergency care. In other words, he was treated as if he needed "emergent" care. Per the Swinney case, the Board has reviewed and discussed both the medical and lay evidence in a prudent layperson evaluation for determining what constitutes a "medical emergency." Overall, the Board finds that medical and lay records provide persuasive evidence that a prudent layperson, i.e., the appellant who has had previous cardiological and severe neurological problems and who also happened to be 68 years old at the time of the incident, would have reasonably expected that delay in seeking immediate medical attention would have been "hazardous" to life or health. As described above, the nature or severity of the appellant's symptoms were indicative of an emergent condition, as evidenced by: (1) his condition at the Emergency Room on presentation; (2) the clinical symptomatology on evaluation; and (3) the not-so-swift resolution of the appellant's acute symptoms (many days). Overall, while there is no indication of a prior authorization to seek medical care at a non-VA facility, the Board finds that medical and lay records contain persuasive evidence that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been "hazardous" to life or health. As described above, the nature or severity of the appellant's symptoms are indicative of an emergent condition from the perception of the lay person experiencing them. While the appellant's condition did improve, the original presentation of being in severe distress, reflects that the appellant's belief that he was having an emergency medical condition and comports with what a prudent layperson would reasonably describe as being emergent. While the diagnosis ultimately rendered was not for an emergency condition - as determined by a VA physician reviewing all the evidence after the incident occurred - in the Board's judgment and from the perspective of the appellant, a prudent layperson at the time the event was happening would have reasonably believed that a medical emergency was taking place. The fact that the treatment for acute symptoms which resolved during his stay in the Emergency Room does not lessen the distress felt by the Veteran at the time of his exacerbation, which was significant enough to require immediate treatment. With respect to the issue of whether VA facilities were feasible available, in view of the fact that emergency room type care was not available at the New Orleans VAMC or at any VA clinic in the greater New Orleans metropolitan area strongly suggests that a VA medical facility was not feasibly available for the urgent needs of the appellant at the time the event was occurring. Therefore, upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by the Tulane University Hospital, on February 15, 2009, under the amended version of 38 U.S.C.A. § 1728 have been met. ORDER Payment or reimbursement for the cost of unauthorized private medical expenses incurred on February 15, 2009, at the Tulane University Hospital and Clinic, is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs