Citation Nr: 1303791 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-28 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Flowood, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private facility on March 31, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from June 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Flowood, Mississippi and subsequent review by the South Central VA Health Care Network (SCVAHCN) in Jackson, Mississippi. The Veteran testified at a Travel Board hearing conducted before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing has been reviewed and associated with the claims file. FINDINGS OF FACT 1. Medical care was provided to the Veteran at a private facility on March 31, 2009. 2. There was no prior authorization for the medical services in question. 3. The medical care that the Veteran received on March 31, 2009, was not for a condition 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. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at a private medical facility on March 31, 2009, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist On November 9, 2000, the VCAA enacted. See Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Significantly, however, the United States Court of Appeals for Veterans Claims (Court) has held that the provisions of the VCAA are not applicable where the law, and not the factual evidence, is dispositive. Manning v. Principi, 16 Vet. 534, 542-43 (2002). As will be discussed in the following decision, the pertinent facts of this case are not in dispute, and the outcome of the Board's decision depends solely on the application of the relevant law to the Veteran's claim. Further, the Court has held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits and which contain their own notice provisions. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Specifically, the provisions of Chapter 17 of 38 U.S.C. and 38 C.F.R. contain their own notice requirements. For instance, regulations at 38 C.F.R. §§ 17.120-17.133 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. In particular, 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 the denial and of 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. Such notification was completed in this case. See, e.g., Statement of the Case issued to the Veteran in June 2010. Accordingly, no further duty to notify the Veteran is required. With regard to VA's duty to assist the Veteran, the Board notes that the development of medical evidence appears to be complete. Unlike many questions subject to appellate review, the issue of whether the Veteran is entitled to reimbursement or payment of medical expenses, by its very nature, has an extremely narrow focus. Here, the only evidence necessary to decide the claim revolves around what transpired on March 31, 2009. This determination involves the medical records from that time period and the medical decision from the staff at the VAMC. Thus, evidence which is necessary to decide the case is already of record, and, as explained in further detail in the following decision, the outcome of the case is mandated by the relevant law and regulations. No amount of additional evidentiary development would change the outcome of the case. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Indeed, the Veteran does not assert that there is additional evidence to be obtained or that there is a request for assistance that has not been acted on. Thus, the Board finds that the VA has complied with its duty to assist the Veteran with the development of the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Law and Analysis The Veteran seeks payment or reimbursement for private medical care that he received on March 31, 2009 for chest pain. He asserts that he is service-connected for a heart condition and during the time period in question, he went to the River Parishes Hospital with chest pain five weeks status post cardiac bypass surgery. It is neither contended, nor suggested by the record, that the Veteran had any prior authorization from VA to receive the medical care he was provided on that date. He argues that the symptoms for which he sought treatment constituted a life-threatening medical emergency, as he believed he was having a major heart problems. He further argues that because he needed immediate medical care he sought private treatment from the nearest facility. He believes, therefore, that the VA should reimburse him for the care he received. See Notice of Disagreement received in March 2010. When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility, or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care in accordance with the provisions of this section. When demand is only for infrequent use, individual authorizations may be used. Care in public or private facilities will only be authorized, whether under a contract or an individual authorization, for medical services for the treatment of any disability of a veteran who has a service-connected disability rated at 50 percent or more. 38 U.S.C.A. § 1703; 38 C.F.R. § 17.52(a)(2). The admission of a veteran to a non-VA facility at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran, or by others in his or her behalf, is dispatched to VA within 72 hours after the hour of admission. When an application for admission by a veteran has been made more than 72 hours after admission, authorization for continued care at VA expense shall be effective as of the postmark, or dispatch date of the application, or the date of any telephone call constituting an informal application. See 38 C.F.R. § 17.54. Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (West 2002). Effective January 20, 2012, VA amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of the amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. The amendments include making the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the "prudent layperson" standard. Under 38 U.S.C.A. § 1728 to be entitled to payment or reimbursement of medical expenses for treatment not previously authorized at a non-VA facility, a claimant must satisfy the following three conditions: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (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 vocational rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in 38 C.F.R. § 17.47(i)(2); and (b) emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was 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. This standard is met by 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; and, (c) VA or other Federal facilities were not feasibly unavailable. VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans 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 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79070 (Dec. 21, 2011). The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, emphasized in the above quotation, "all three statutory requirements would have to be met before reimbursement could be authorized." Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). Prior to the March 31, 2009 treatment in question, service connection had been established for coronary artery disease status post coronary artery bypass graft associated with type II diabetes mellitus. The Veteran also has a combined disability rating of 100 percent, effective October 2008 and has been found to be totally and permanently disabled. Therefore he may be considered for reimbursement or payment under 38 U.S.C.A. § 1728 for the medical expenses related to the private treatment if the record establishes that such care or services were rendered in a medical emergency and other Federal facilities were not feasibly available. See 38 C.F.R. § 17.120. In support of his claim are hospital records showing that shortly after midnight on March 31, 2009, the Veteran presented to River Parishes Hospital with a chief complaint of persistent cough for about four days. On admission, he was alert and in no acute distress. His temperature was 97.4, pulse was 58, respirations were 20 and blood pressure was 163/93. His current pain level was 0/10. The Veteran's history of recent coronary artery bypass surgery in February 2009, was noted. The Veteran denied any chest pain and shortness of breath. A review of the respiratory, cardiovascular, and neurological systems was completely negative. The evaluation also included a radiology report that was negative for any acute cardiac abnormality. There was no indication that the Veteran's cough had progressively worsened during his time in the emergency room and no treatment was rendered. A Medical Screening Evaluation-Disposition Form, completed by the examining physician, indicated the Veteran did not have an emergency medical condition. About an hour or so after his admission, the Veteran was discharged home in stable condition. There was no discharge diagnosis. In May 2009, the Veteran was informed that payment would not be made for the medical treatment received on March 31, 2009 because VA facilities were available. The Veteran requested reconsideration of the initial denial and in May 2010, a VA staff physician reviewed the medical records noting the Veteran's allegations of chest pain five weeks post CABG procedure. However the physician also referred to the emergency room records which indicated, by documentation, the Veteran's chief complaint was cough for four days. The physician also noted that there was no documentation of chest pain and no shortness of breath. The VA physician upheld the original review concluding the Veteran had a non-emergent condition that could have been treated at a VA facility. A subsequent reconsideration of the claim in June 2010 also upheld this decision. At his March 2012 hearing the Veteran testified that he went to the emergency room on March 31, 2009, because of chest pain that he believed required immediate attention. He testified that he had a triple bypass the month prior for his service-connected heart condition and that at the time in question he thought he was having a major heart problem and that in fact he had a "light heart attack." See hearing transcript p. 6. The Veteran testified that he lived about 30 miles from the nearest VA facility in New Orleans and that the private facility was located a mile from his home. Unfortunately, based on a review of the record, the Board finds that payment or reimbursement of the unauthorized medical expenses incurred on March 31, 2009, is not warranted. Initially, the Board notes that there is no indication from the record that the Veteran attempted to contact VA for treatment. Indeed, he has not contended that he sought preauthorization from VA or that he contacted a VA facility and was refused. As discussed above, the Veteran has a total disability rating as a result of his service-connected disabilities, therefore the first criteria under 38 U.S.C.A. § 1728 for reimbursement have been met. However, the evidence does not establish that the unauthorized private medical treatment the Veteran received on March 31, 2009 constituted a medical emergency. This was the determination made by the VAMC reviewer, and such opinion is supported by the emergency department records. The Veteran argues that he had chest pain five weeks after his coronary bypass surgery and went to the emergency room as he was concerned that he was having major heart problems, which turned out to be a light heart attack. While the Veteran is competent to report experiencing chest pain (see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis)), the Board finds his argument less than credible. The emergency department records show no complaints of chest pain or shortness of breath upon presentation to the emergency room and there was no indication that the Veteran had suffered a heart attack of any kind. Rather, the evidence shows that the Veteran reported to the emergency department because of a persistent cough which he had been having for four days. By his own report at the emergency department, the Veteran was not having chest pain or shortness of breath or any other cardiac symptoms. The Board finds that the Veteran's cough was not a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would be hazardous to life or health. See 38 U.S.C.A. §§ 1725(f)(1)(B), 1728(c). The Board's conclusion in this regard is buttressed by the March 2009 emergency room medical screening evaluation form, where it was indicated that an emergency medical condition did not exist. As that record itself indicates it was completed by a competent medical professional, there is competent medical evidence which refutes the finding that the care the Veteran received at River Parishes Hospital on March 31, 2009 was of an emergent nature. In this case, the, the medical findings and complaints at the time of presentation to the emergency room are more credible and probative than the Veteran's current contentions. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. While the Board acknowledges that the Veteran's cough may have required medical attention, the treatment does not meet the requirements for emergency services under 38 U.S.C.A. § 1728 & 38 C.F.R. § 17.120. Because the Veteran does not meet all three requirements under 38 U.S.C.A. § 1728, entitlement to reimbursement or payment by VA of the cost of unauthorized medical treatment provided on March 31, 2009, must be denied under these provisions. The Board need not go into whether the Veteran meets any of the other criteria, as the failure to meet one of them precludes payment. In considering every possible theory of entitlement, the Board has considered whether reimbursement is warranted under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002. To be eligible for reimbursement under this authority, the Veteran has to satisfy all of the following conditions: (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 beforehand 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) 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; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) 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); (g) 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; and, (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79071 (Dec. 21, 2011); 77 Fed. Reg. 23617 (Apr. 20, 2012)). As noted above, eligibility for reimbursement under the Veterans Millennium Health Care and Benefits Act also requires that the treatment be for a medical emergency and that VA or other Federal facilities were not feasibly unavailable. For the reasons set forth above, the Board has concluded that the Veteran's condition prior to his admission was deemed non-emergent in nature and there is no indication that to delay treatment would have been hazardous to his life or health. There is no medical evidence to the contrary. Again, the Veteran does not satisfy at least one of the requisite criterion set forth above, and thus reimbursement under the provisions of 38 U.S.C.A. § 1725 & 38 C.F.R. § 17.1002 cannot be granted. The Board recognizes that there are financial difficulties that arise from unexpected medical expenses. While the Board sympathizes with the Veteran's situation and the particular circumstances therein, the Board is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private facility on March 31, 2009 is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs