Citation Nr: 1305972 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-02 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on April 17, 2009. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on May 7, 2009. 3. Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on October 8, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active military service from February 1978 to April 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse actions by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida which is the Agency of Original Jurisdiction (AOJ) in this matter. The Veteran was scheduled for a Travel Board Hearing in June 2011, however he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2012). Accordingly, this Veteran's request for a hearing is considered withdrawn. FINDINGS OF FACT 1. A prudent layperson would not have reasonably expected that delay in seeking immediate medical attention on April 17, 2009, would have been hazardous to the Veteran's life or health. 2. A prudent layperson would not have reasonably expected that delay in seeking immediate medical attention on May 7, 2009, would have been hazardous to the Veteran's life or health. 3. A prudent layperson would not have reasonably expected that delay in seeking immediate medical attention on October 8, 2009, would have been hazardous to the Veteran's life or health. CONCLUSIONS OF LAW 1. Criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on April 17, 2009, are not met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.121 (2012). 2. Criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on May 7, 2009, are not met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.121 (2012). 3. Criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on October 8, 2009, are not met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.121 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the issue decided below 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) 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. Under the VCAA, VA's duty to notify and assist has been significantly expanded. However, the United States Court of Appeals for Veterans Claims (Court) ruled in Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive. In addition, in Barger v. Principi, 16 Vet. App. 132, 138 (2002), 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. As this case concerns a legal determination of payment or reimbursement for medical expenses under 38 U.S.C.A. § 1728, the provisions of the VCAA are not applicable. 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. At any rate, in letters dated in December 2009, the Veteran was provided with the notice generally outlining his and VA's responsibilities in obtaining evidence in support of the claim. While these letters were not issued prior to the initial adjudications of the claims in May 2009, September 2009, and October 2009, the Veteran has not been prejudiced by such timing error as the claim was later readjudicated in the December 2009 and January 2010 Statements of the Case. In the Statements of the Case, VA described its reasons and bases for denying the claims. In addition, the April 2009, May 2009, and October 2009 private medical center records are of record. Consequently, the Board finds that the duty to notify and assist has been met. II. Payment or Reimbursement of Unauthorized, Non-VA Medical Expenses Payment or reimbursement for medical expenses incurred in non-VA facilities is also available under 38 U.S.C.A. § 1728. The Secretary shall, under such regulations as the Secretary prescribes, reimburse veterans eligible for hospital care or medical services under this chapter for the customary and usual charges of emergency treatment (including travel and incidental expenses under the terms and conditions set forth in section 111 of this title) for which such veterans have made payment, from sources other than the Department, where such emergency treatment was rendered to such veterans in need thereof for any of the following: (1) An adjudicated service-connected disability; (2) A non-service-connected disability associated with and held to be aggravating a service-connected disability; (3) Any disability of a veteran if the veteran has a total disability permanent in nature from a service-connected disability; (4) Any illness, injury, or dental condition of a veteran who -- (A) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title); and (B) is medically determined to have been in need of care or treatment to make possible the veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. 38 U.S.C.A. § 1728(a). In this section, the term "emergency treatment" has the meaning given such term in section 1725(f)(1) of this title. 38 U.S.C.A. § 1728(c). Under 38 U.S.C.A. § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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 (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). It is noted that the Veteran is currently rated as 100 percent disabled based on his service connected disabilities (somatization disorder with organic brain syndrome (100 percent), cervical spine (20 percent), lumbar spine (20 percent), tinnitus (10 percent), vascular headaches (10 percent), temporomandibular joint syndrome (10 percent), degenerative joint disease of the right knee (10 percent), degenerative joint disease of the right ankle (10 percent), hypertension (10 percent), open angle glaucoma, bilateral eyes with scotoma right eye (10 percent), and impotence (0 percent)). The Veteran also receives special monthly compensation on account of aid and attendance and he has been found to be incompetent. The Veteran has been rated as permanently and totally disabled. As such, the Board will consider whether payment or reimbursement for medical expenses is warranted pursuant to 38 U.S.C.A. § 1728. A. April 17, 2009 On April 17, 2009, the Veteran presented for treatment at the emergency room of the Capital Regional Medical Center (CRMC). The Veteran's chief complaint was abdominal pain that began a day earlier. The severity was noted to be mild and the quality was cramping. The admitting diagnosis was vomiting/fever. Physical examination revealed that the Veteran was in no acute distress and no respiratory distress. The Veteran's cardiovascular system was noted to be regular in rate and rhythm, and heart sounds were normal. The Veteran's abdomen was soft, non-tender, no organomegaly, normal bowel sounds, no abdominal bruit, and no pulsatic mass. Inspection of the back, skin, extremities, and neurological/psychological was normal. The abdominal pain resolved and the clinical impression was gastritis, resolved. While the emergency room records clearly spell out the reasons the Veteran sought emergency care, and the symptoms he reported upon presenting for treatment at the emergency room, the Veteran has offered a rationale for why he sought emergency treatment that day. The Veteran reported in November 2009 that his incident concerned very high blood pressure, chest pains, headaches, and "various injuries" that he believed were serious enough in nature to be considered an emergency. In addition, the Veteran stated in his VA Form 9 that the VA Clinic is not open 24 hours a day and, therefore, he was forced to seek treatment at the CRMC. The record reveals that the Veteran was treated earlier the same day at VA. At that time the Veteran complained of constipation, chills, weakness, and lower abdominal pain. The Veteran moved his bowels in small amounts. He complained of bleeding in his stool. He reported that he may have a fever. He was noted to have last had a colonoscopy in 2007, TV adenoma. Physical examination revealed the Veteran's blood pressure to be 129/90 and his temperature to be 97 degrees. The Veteran was diagnosed with constipation and prescribed Miralax. In an administrative decision dated in May 2009 the Veteran's claim was denied on the basis that the Veteran's care was not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The Veteran's treatment was reviewed by a VA physician in August 2009. The physician stated that the Veteran was seen earlier the same day for similar complaints and his medical exam was normal. The physician reported that this appeared to be a chronic complaint. The Veteran's primary complaint had resolved by arrival to the emergency department and there did not appear to be any necessity for emergency department evaluation. As noted above, regulations define "emergency treatment" as services that 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. 38 U.S.C.A. § 1725(f)(1)(B). In this case, while the Veteran felt compelled to visit the private emergency room, it is not reasonable that a prudent layperson would expect that a delay in seeking immediate medical attention for a condition that he had been experiencing chronically would be hazardous to his life or health. The Veteran was seen earlier the same day at the VA facility, was diagnosed, and prescribed medication. The Veteran did not present with new symptoms at the private emergency room later that day and it was noted that the Veteran's symptoms had resolved prior to treatment. The Veteran's later reported reasons for seeking immediate treatment as very high blood pressure, chest pains, headaches, and "various injuries" are in conflict with what the Veteran reported upon his admission to the emergency room at the time of his treatment. As such, there is no credible evidence that the Veteran had symptoms that a prudent layperson possessing an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to place his health in serious jeopardy. Therefore, the Board finds that the preponderance of the evidence is against reimbursement or payment for the unauthorized private medical care that the Veteran received on April 17, 2009, and the appeal is therefore denied. B. May 7, 2009 On May 7, 2009, the Veteran presented for treatment at the emergency room of the CRMC. The Veteran's chief complaints were cough, sore throat, and fever that began two days earlier. The severity was noted to be moderate and the associated symptoms were reported to be fever/chills, runny nose, sore throat, and productive cough. The admitting diagnosis was cough, possible blood clot. Physical examination revealed the Veteran to be in no acute distress. Other than rhinorrhea and rhonchi, the Veteran's physical examination was normal. An x-ray was noted to be normal. The Veteran's symptoms improved and the Veteran was prescribed antibiotics. The clinical impression was bronchitis. While the emergency room records clearly spell out the reasons the Veteran sought emergency care, and the symptoms he reported upon presenting for treatment at the emergency room, the Veteran has offered a rationale for why he sought emergency treatment that day. In an administrative decision dated in September 2009 the Veteran's claim was denied on the basis that the Veteran's care was not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The Veteran's treatment was reviewed by a VA physician in November 2009. The physician reported that the Veteran had a two day history of sore throat, cough, chest congestion, constipation, and shoulder pains. He was seen in the emergency room and given a diagnosis of acute bronchitis. The physician noted that according to the emergency room notes the symptoms existed two days prior to the emergency room visit and all the Veteran's vital signs were normal, including temperature, white blood cells, and chest x-ray. The physician noted that the Veteran's visit was on a Thursday and that the VA facilities were available for the two days prior to the emergency room visit. It was noted that "I will deny this claim as non-emergent because the [symptoms] existed two days prior to ER visit [and] also that VA facilities were available." The Veteran reported in November 2009 that his incident concerned very high blood pressure, chest pains, headaches, and "various injuries" that he believed were serious enough in nature to be considered an emergency. He stated that he could not be seen at the VAOPC Tallahasee due to it being closed. The Veteran reported that he called the VA Medical Center in Lake City and Gainesville Florida. He stated that he was instructed to go to the nearest emergency room/hospital. The Veteran reported that he did as directed by VA and, therefore, requests that the VA pay the emergency health care charges. In addition, the Veteran stated in his VA Form 9 that the VA Clinic is not open 24 hours a day and, therefore, he was forced to seek treatment at the CRMC. As noted above, regulations define "emergency treatment" as services that 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. 38 U.S.C.A. § 1725(f)(1)(B). In this case, while the Veteran felt compelled to visit the private emergency room, it is not reasonable that a prudent layperson would expect that a delay in seeking immediate medical attention for a condition that he had been experiencing would be hazardous to his life or health. The treatment notes from the emergency room visit do not reveal any acute distress and reveal normal physical examinations, including blood work, temperature, and x-ray, with the exception of rhinorrhea and rhonchi. Although the Veteran has reported that he sought treatment at the private emergency room due to high blood pressure, chest pain, headaches, and "various injuries" the treatment notes do not reveal any complaint of these symptoms. Although the Veteran has indicated that he sought private emergency room treatment due to the VA Clinic not being open 24 hours, in regard to this treatment the Veteran's symptoms, by his report, existed for two days during which VA facilities were noted to be available, during which time the Veteran could have sought VA treatment. In addition, as the symptoms existed for two days prior to the treatment the Veteran by his inaction demonstrated a belief that they were not hazardous to his life or health and did not require immediate medical attention. Finally, the Board notes that the Statement of the Case reveals that urgent and emergency care is available 24 hours a day at the VA Medical Centers in Gainesville and Lake City, Florida, and the Veteran could have sought treatment at one of these centers. Therefore, the Board finds that VA facilities were feasibly available and an attempt to use them before hand would not be unreasonable. As such, there is no credible evidence that the Veteran had symptoms that a prudent layperson possessing an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to place his health in serious jeopardy. Therefore, the Board finds that the preponderance of the evidence is against reimbursement or payment for the unauthorized private medical care that the Veteran received on May 7, 2009, and the appeal is therefore denied. C. October 8, 2009 On October 8, 2009, the Veteran presented for treatment at the emergency room of the CRMC. The Veteran's chief complaint was headache for two weeks. The sign in sheet indicated that the reason for the visit was headaches and blood pressure. The timing was noted to be gradual. There were intermittent episodes and the pain was persistent and still present. The severity was moderate at maximum and at the time of the treatment. The quality of the headaches was "similar to previous headaches." The Veteran reported associated symptoms of nausea/vomiting and the symptoms were exacerbated by light. The Veteran was noted to have a past history of chronic, occasional headaches. He was noted to have hypertension. All systems were noted to be negative. Physical examination revealed the Veteran to be in moderate distress; however, the Veteran was otherwise normal. The clinical impression was headaches and the Veteran was disposed to home less than three hours later. While the emergency room records clearly spell out the reasons the Veteran sought emergency care, and the symptoms he reported upon presenting for treatment at the emergency room, the Veteran has offered a rationale for why he sought emergency treatment that day. In an administrative decision dated in October 2009 the Veteran's claim was denied on the basis that the Veteran's care was not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The Veteran's treatment was reviewed by a VA physician in November 2009. The physician noted that the emergency room note indicated that the Veteran had a headache for two weeks and also had a history of chronic headaches. There was no apparent other constitutional symptoms. Initial vital signs including blood pressure were noted to be normal. The physician stated that "[b]ecause of this history of chronic, recurrent headaches and this present episode had existed for 2 weeks, this is not considered an emergency." The physician continued to state that VA facilities were available during this two week period. The Veteran reported in November 2009 that his incident concerned very high blood pressure, chest pains, headaches, and "various injuries" that he believed were serious enough in nature to be considered an emergency. He stated that he could not be seen at the VAOPC Tallahasee due to it being closed. The Veteran reported that he called the VA Medical Center in Lake City and Gainesville Florida. He stated that he was instructed to go to the nearest emergency room/hospital. The Veteran reported that he did as directed by VA and, therefore, requests that the VA pay the emergency health care charges. In addition, the Veteran stated in his VA Form 9 that the VA Clinic is not open 24 hours a day and, therefore, he was forced to seek treatment at the CRMC. As noted above, regulations define "emergency treatment" as services that 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. 38 U.S.C.A. § 1725(f)(1)(B). The Board notes that the Veteran is in receipt of service-connected benefits for vascular headaches. However, while the Veteran felt compelled to visit the private emergency room, it is not reasonable that a prudent layperson would expect that a delay in seeking immediate medical attention for a condition that he had been experiencing would be hazardous to his life or health. Here the Veteran's symptoms were chronic and, by the Veteran's statements at the private treatment, had been going on for two weeks and were similar to symptoms he has had in the past. In addition, the Veteran's vital signs were normal at the time of treatment at the emergency room. Finally, the Board notes that the Statement of the Case reveals that urgent and emergency care is available 24 hours a day at the VA Medical Centers in Gainesville and Lake City, Florida, and the Veteran could have sought treatment at one of these centers. Therefore, the Board finds that VA facilities were feasibly available and an attempt to use them before hand would not be unreasonable. As such, there is no credible evidence that the Veteran had symptoms that a prudent layperson possessing an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to place his health in serious jeopardy. Therefore, although the Veteran is in receipt of service-connected benefits for vascular headaches, as the Board finds that the preponderance of the evidence is against a finding that the Veteran's treatment was rendered in a medical emergency and, therefore, reimbursement or payment for the unauthorized private medical care that the Veteran received on May 7, 2009, is denied. ORDER Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on April 17, 2009, is denied. Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on May 7, 2009, is denied. Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Capital Regional Medical Center on October 8, 2009, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs