Citation Nr: 1303536 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-31 647A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses that were incurred for emergency room treatment for fever and acute bronchitis, on February 25, 2010, at Cumberland Medical Center. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1971. This appeal to the Board of Veterans' Appeals (Board) is from decisions of the Department of Veterans Affairs Medical Center (VAMC) in Murfreesboro, Tennessee. The Veteran and his wife appeared before the undersigned in a hearing at the Nashville, Tennessee Regional Office in June 2011. A copy of the transcript has been associated with the VHA medical folder. The issue of service connection for posttraumatic stress disorder, along with other possible claims, have been raised by the record, specifically in written statements received in May 2012, but 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. FINDING OF FACT The evidence establishes that the Veteran's medical treatment on February 25, 2010, at Cumberland Medical Center was not for an emergency, nor were VA facilities shown to not be feasibly available at the time of such treatment. CONCLUSION OF LAW The criteria for reimbursement of unauthorized medical expenses incurred on February 25, 2010, at Cumberland Medical Center, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.1000-17.1008 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, because the claim in this case is governed by the provisions of Chapter 17 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). Therefore, 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 should be reimbursed for outpatient treatment at Cumberland Medical Center on February 25, 2010. He alleges that the treatment was for a medical emergency and that VA facilities were not reasonably available, as he was not in a position to drive the long distance to the VA medical center. In his February 2009 NOD, he explained that the distance to the VA hospital in Murfreesboro was 113 miles one way and that he was in no condition to drive that far. He stated that he went to the local hospital because he had a 101.6 degree temperature and that, after reporting all of the symptoms and information on the phone to a VA nurse, he was advised to go to his local emergency room. At the hearing before the undersigned, the Veteran testified that he had been to Murfreesboro VAMC on February 16, 2010, for treatment of cough and fever. At that time, he was given antibiotics and discharged. On February 25, 2010, his fever was "pushing 102 degrees" and he was not feeling better, so he called the VA and spoke to an "on call" nurse. He testified that she recommended he go to triage, which was 113 miles away at the VAMC. He told the nurse he did not feel he could drive that distance in his current condition, and she responded that he should go to his local ER. At Cumberland Medical Center, they changed his medications, giving him a "Z-pack" and he felt better in 5 days. The Veteran urges he went to the local emergency room because the VA nurse on the phone told him to do so. He felt that the situation was emergent in light of his service-connected heart condition. He has managed to negotiate the bill down to $277.94. The applicable law in this matter is from Section 1728(a), Title 38, United States Code, which provides 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; 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 the return to such course of training; 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(2012). The U. S. Court of Appeals for Veterans Claims (Court) has held that all three of these statutory requirements must be met before payment may be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). The Board notes the Veteran is service-connected for hypertensive vascular disease, rated noncomepensable, diabetes mellitus, rated 20 percent disabling, and arteriosclerotic heart disease, rated 60 percent disabling. His total disability rating is 70 percent. As such, his primary eligibility code for VA treatment is 'service-connected, 50 to 100 percent'. He is also in receipt of a total rating based on individual unemployability (TDIU) due to service-connected disabilities effective from April 2005. Thus Section 1728(a) does apply in this matter. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence reveals that the Veteran was seen by at the Cumberland Medical Center on February 25, 2010, at approximately 11:30 a.m., with complaints of unspecified fever, after having arrived at the facility at 10:00 a.m. Triage personnel noted that he had unlabored breathing, clear breath sounds and a temperature of 100.3. The Veteran noted that he had been suffering from congestion and sinus drainage, and aching since Sunday. He reported he had recently been to Mexico. An upper respiratory infection Emergency Provider Record reflects that the chief complaints were cough and fever for four days. Low grade fever was noted to be of mild severity. Associated symptoms included fever, congestion and hoarseness. There was no chest pain, tightness or soreness noted but there was a productive cough. Diabetes was noted by history as was his heart murmur. Physical examination revealed the Veteran was in no acute distress and his nose and pharynx were normal. He was in no respiratory distress and breath sounds were normal. His heart had regular rate and rhythm. He was oriented times three and his mood was normal. The clinical impression following chest X-ray was acute bronchitis. He was discharged to home at 12:30 on the same day with a prescription for Doxycycline. Chest X-ray read on February 26, 2010, indicates possible chronic bronchitis. VA Fee Basis review received a claim in the amount of $444.00, for the Veteran's treatment in March 2010. Services noted included emergency room and diagnostic radiology. In April 2010, a nurse for VA conducted a Millennium Bill Review under 38 38 U.S.C.A. § 1725. It was noted that the Veteran was financially liable, that he was an enrolled veteran and that he had no coverage that would pay for his treatment bill. A clinical review reflects that the Veteran is not eligible for fee basis reimbursement under 38 U.S.C.A. § 1728. The nurse answered no in response to whether VA or other Federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable and such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay would be hazardous to life or health. She also answered no to the statement of whether, in her opinion, the treatment procured by the Veteran through the private sources was not in preference to available government facilities. As such, it was concluded that the Veteran did not meet all the Millennium criteria, and the claim should not be paid under the Millennium Bill. The nurse also conducted a Fee Basis Review under 38 C.F.R. § 17.120. It was noted that the Veteran had a permanent and total disability resulting from a service-connected disability effective from September 2004. It was concluded that the treatment on February 25, 2010, for bronchitis of four days duration was in preference to available government facilities and the bill should not be paid. In April 2010, the Veteran was informed that his claim was disapproved because treatment was provided in preference to available government facilities. It was also noted that a prudent layperson would not have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. Following the submission of his aforementioned notice of disagreement, a June 2010 reconsideration continued to deny the claim for unauthorized medical expenses. It clarified that the Veteran has a 70 percent combined service-connected disability rating, and noted that he was considered permanent and total (P&T) effective from September 13, 2004. The reviewing nurse observed that, as the Veteran was P&T, he was treated for a service-connected disability, or for a condition held to be aggravating his service-connected disabilities. However, the care was not rendered in a medical emergency of such nature that delay would have been hazardous to life and health, and VA or other Federal facilities were feasibly available. Thus, she concluded that the claim did not meet the criteria for approval of an unauthorized claim. A Statement of the Case (SOC) issued in June 2010 indicates that the Veteran was service-connected for heart disease, hypertension and diabetes with a 70 percent combined disability rating. He had Medicare Part A insurance effective October 2007. The SOC included both Fee Basis Regulation 38 C.F.R. § 17.120 and the Millennium Bill, 38 U.S.C.A. § 1725. It noted that per clinical reconsideration, care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. Also, VA facilities were feasibly available to provide care. An August 2010 reconsideration continued to deny the claim under 38 C.F.R. § 17.125 under the Millennium Bill and as an Unauthorized Medical Service. In pertinent part, the clinical review reflects that the Veteran's situation was non-emergent and that the VA facilities were feasibly available. The Unauthorized Medical Service review indicated that the treatment was for a nonservice connected disability. A Supplemental Statement of the Case (SSOC) issued in August 2010 noted that, upon review of all documentation submitted, care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. VA facilities were feasibly available to provide care.. Based on a review of the evidence, the Board finds that entitlement to reimbursement for medical expenses incurred at Cumberland Medical Center on February 25, 2010, is not warranted. First, a review of the records and the uncontroverted medical opinions reveal that such treatment was not on an emergency basis. The evidence to support such a finding is shown by the fact that the Veteran apparently was observed to have relatively mild symptoms upon initial arrival at Cumberland Medical Center, including temperature of 100.3, unlabored breathing, normal breath sounds, clear and on the right and left. Thereafter, his upper respiratory infection report reflects symptoms adjudged to have been mild in severity. He appeared in no acute distress. Additionally, it appears that the Veteran was seen in due course, arriving at 10 a.m., being seen around 11:30 a.m. and discharged around 12:30 p.m. the same day with a prescription for antibiotic for his acute bronchitis. These indicate a lack of emergency to the Board. Moreover, the uncontroverted medical opinions of the reviewing nurses indicate that the Veteran's situation was non emergent and it was not one which a reasonable person would think was emergent. The Board does not find these opinions inconsistent with the treatment record discussed above. Second, with regard to the asserted unavailability of VA facilities, the Board notes that the Veteran has contended that going to the Murfreesboro VA facility would entail a trip of 113 miles each way. The Board does not dispute this at this point. However, he described receiving treatment at this facility 10 days earlier for essentially the same condition. There are no records showing that VA facilities were unavailable on the actual date of February 25, 2010, and he admits that he was initially told by the on-call nurse to go to Murfreesboro for triage. The Board does not find that the Murfreesboro VA facility was unavailable on the date of his treatment. It is not supported in the treatment record for that day that he was unable to drive to that facility due to his condition. Thus, based on the foregoing, the Veteran is not eligible for medical expense reimbursement under 38 U.S.C.A. § 1728. Under 38 C.F.R. § 17.1002 (2012), payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-100 3 (2012). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and is referred to as the "Millennium Healthcare Act" in this decision. 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 a number of conditions including the following: The Veteran must have 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). The Veteran is shown to be in receipt of Medicare benefits for the date of treatment. Accordingly, inasmuch as he has medical coverage under a health plan, consideration of reimbursement under the Millennium Healthcare Act is not warranted. Parenthetically, the Board notes that, to the extent that the Veteran does not have medical coverage under a health plan, and to the extent that treatment was for a nonservice-connected disability, the Millennium Bill regulations require the following: (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking 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 beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could 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 a non-VA medical center). See 38 C.F.R. § 17.1002. In this regard, the Board again notes that it is the uncontroverted opinion of the medical reviewers in this claim, as well as the conclusion of the Board, that this was not an emergency situation, as a prudent layperson would not have reasonably expected that delay in seeking medical attention would have been hazardous to life or health. Additionally, it is undisputed that a VA or other Federal facility was feasibly available. Accordingly, there is no factual basis to establish entitlement to payment or reimbursement of the previously unauthorized expenses for private medical care at Cumberland Medical Center 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 The claim for entitlement to reimbursement for unauthorized medical expenses for emergency treatment on February 25, 2010, at Cumberland Medical Center is denied ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs