Citation Nr: 1301045 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 12-00 025A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Wichita, Kansas THE ISSUE Entitlement to payment of medical expenses for treatment at Wesley Medical Center received on October 27, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to June 1956. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 determination of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Wichita, Kansas, which denied the claim of reimbursement for, or payment of, unauthorized medical expenses, for treatment and hospitalization at Wesley Medical Center on October 27, 2011. The Veteran was originally scheduled to testify before a Veterans Law Judge (VLJ) at the RO on August 31, 2012. The Veteran did not appear for that hearing and instead submitted a statement indicating that he was withdrawing his hearing request. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Payment or reimbursement of the cost of the private medical care received on October 27, 2011, was not authorized in advance by VA. 2. The private medical care received on October 27, 2011, was not for a service-connected disability, or a nonservice-connected disability associated with a service-connected disability, and the Veteran is not in receipt of a total disability rating or a participant in vocational rehabilitation. 3. At the time of his October 27, 2011, treatment, the Veteran was treated by a hospital emergency department; he was enrolled in the VA healthcare system and had received medical services within the 24-month period preceding this treatment; he did not have coverage under a healthcare contract for this treatment; he is financially liable to the provider of emergency treatment for that treatment; and the condition for which he sought treatment (which included difficulty breathing and blacking out) was one which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 4. There is no indication that the Veteran was provided medical care beyond the initial emergency evaluation and treatment or that the condition for which emergency treatment was furnished was caused by an accident or work-related injury. 5. The evidence is at least in equipoise as to whether VA facilities were feasibly available. CONCLUSION OF LAW The criteria for establishing payment or reimbursement for unauthorized medical expenses incurred as a result of treatment provided at Wesley Medical Center on October 27, 2011, are met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000-17.1002, 17.1004 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001) The Board is awarding payment of medical expenses for treatment at Wesley Medical Center received on October 27, 2011; which is a complete grant of the benefit sought on appeal. As such, no further notice or assistance is required to assist the Veteran in substantiating this claim. Analysis The Veteran is currently service connected for impaired hearing with a disability evaluation of 30 percent. On October 27, 2011, an ambulance was called to the Veteran's home. According to the ambulance report, the Veteran reported that he had "blacked out" approximately 30 to 45 minutes prior to calling 911 and continued to experience weakness. A witness at the scene stated that the Veteran did not fall at that time. The Veteran denied head, neck, or back injuries, chest pain, nausea, and dizziness, but did complain of inability to catch his breath. He was treated and transported to Wesley Medical Center. At the hospital, the Veteran reported that he had become dizzy and fell down for 10 minutes that morning. He was seen by a physician who diagnosed the Veteran with tachycardia. In their lay statements, the Veteran and his sister reported that they had requested that the Veteran be transported to the VAMC, but the paramedics and the Veteran's home nurse were adamant that VA did not have the proper facilities. At the heart of his claim, the Veteran is in essence arguing that, due to the actions of the paramedics, the VA facility (VAMC in Wichita, Kansas) was not feasibly available. This is in direct contradiction with the December 2011 determination, which found that "[a] VA Medical facility was readily available in the patient's geographic area and capable of furnishing economical care." In his statements, the Veteran has repeatedly stated that he sought to be transported to VA for treatment; but others, including his home aid, who was contracted through VA, instructed him to go to Wesley Medical Center instead, due to the facilities available. The ambulance record makes no reference to the rationale behind the selection of Wesley Medical Center over the VAMC, nor does it refer to any statement by the Veteran or others indicating a preference for the VAMC. Medical expenses incurred by Veterans at private facilities, and not previously authorized by VA, may be paid or reimbursed by VA in certain limited situations where particular statutorily-mandated requirements are met. Specifically, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. Under 38 U.S.C.A. § 1728, VA may pay or reimburse Veterans for payment of medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such a 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 nonservice-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; or (D) for any illness in the case of a Veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such Veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and, (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. See also 38 C.F.R. § 17.120. The Court has held that all three of these requirements must be met before payment is authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). Emergency care not covered under the provisions of 38 U.S.C.A. § 1728 as described above may qualify for reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008, which was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and will be referred to as the "Millennium Bill Act" in this discussion. To qualify for reimbursement under the Millennium Bill Act as articulated in 38 C.F.R. § 17.1002, all of the following criteria must be met: (a) The emergency services were provided in a hospital emergency department or 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; (c) A VA or other Federal facility or provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (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 nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility; (e) At the time the emergency treatment was furnished the Veteran was enrolled in the VA healthcare system and had received medical services 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 had no coverage under a healthcare contract for payment or reimbursement in whole or in part for the emergency treatment; (h) If the condition for which 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 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; and, (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment. The criteria above are conjunctive, not disjunctive; accordingly, all nine criteria must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991). The Veteran does not allege and the record does not suggest, that the Veteran's treatment at Wesley Medical Center was authorized in advance. Likewise, the record does not indicate that the Veteran applied for VA authorization within 72 hours of emergency admission. Thus, the issue on appeal must be decided in light of the requirements for reimbursement or payment for medical expenses incurred without prior authorization from VA. Based on the above criteria, the Board will first consider whether the Veteran qualifies for reimbursement or payment for medical expenses under the provisions under 38 U.S.C.A. § 1728. Under such provisions, the law requires that the care be rendered for an adjudicated service-connected disability, a nonservice-connected disability associated with and held to be aggravating a service-connected disability, any disability of a Veteran who has a total disability permanent in nature from a service-connected disability, or any illness in the case of a Veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such Veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training. The record reflects that, at the time treatment was rendered, the Veteran was in receipt of a 30 percent rating for hearing impairment. There is no indication in the medical record from October 27, 2011, that the Veteran was treated for complication of his hearing impairment or that his symptoms were a direct result of his hearing impairment. As the Veteran did not seek treatment for a service-connected disability, or a nonservice-connected disability associated with a service-connected disability, and is not in receipt of a total disability rating or a participant in vocational rehabilitation, the provisions of 38 U.S.C.A. § 1728 are not applicable in the instant case. Next, the Board must consider whether the Veteran qualifies for reimbursement or payment for medical expenses under the provisions under 38 U.S.C.A. § 1725. In this case, the Veteran meets all of the criteria enumerated and so his claim must be allowed. Specifically, the evidence of record shows that the Veteran was not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment; he was treated by a hospital emergency department; he was enrolled in the VA healthcare system and had received medical services within the 24-month period preceding this treatment; he did not have coverage under a healthcare contract for this treatment; he is financially liable to the provider of emergency treatment for that treatment; and the condition for which he sought treatment (which included difficulty breathing and blacking out) was one which a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. See 38 U.S.C.A. § 38 C.F.R. § 17.1002. There is no indication that the Veteran was provided medical care beyond the initial emergency evaluation and treatment or that the condition for which emergency treatment was furnished was caused by an accident or work-related injury. See 38 U.S.C.A. § 38 C.F.R. § 17.1002(d), (h). As noted above, there is some debate over the remaining criterion for entitlement to payment of these medical expenses--that a VA or other Federal facility or provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. See Cotton v. Brown, 7 Vet. App 325, 327 (1995). The term "feasibly available" is not defined in 38 U.S.C.A. § 1728 or 38 C.F.R. § 17.1002. Under the provisions of 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. 38 C.F.R. §§ 17.52, 17.53. The Primary Care Program Director at the local VAMC determined that VA facilities were feasibly available; but this opinion did not consider the Veteran's report that the ambulance personnel insisted on taking him to Wesley Medical Center. By contrast, the Veteran's statements indicate that he was instructed by his home care aid and the paramedics that the VA facility did not have all the necessary facilities. A VA facility would not be feasibly available if there was evidence establishing that an appellant 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 facility. See 38 C.F.R. § 17.1002(c). While the accuracy of the paramedics determination of the VAMC facilities is debatable, the record clearly indicates that the ambulance took the Veteran to Wesley Medical Center and not the local VAMC. The Board also takes judicial notice of the fact that the VAMC appears to be situated between the Veteran's home and the Wesley Medical Center, which tends to support the Veteran's contention that the paramedics specifically determined that the VAMC could not provide the appropriate level of care for the Veteran's condition. As such, the record is at least in equipoise with regard to this final criterion. Thus, the Board determines that the Veteran is entitled to the payment or reimbursement of medical expenses for treatment at Wesley Medical Center received on October 27, 2011. ORDER Payment of medical expenses for treatment at Wesley Medical Center received on October 27, 2011, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs