Citation Nr: 1306701	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  10-24 491	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in New Orleans, Louisiana


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred on August 30, 2009, at St. Charles Hospital.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the military from June 1966 to March 1970.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in New Orleans, Louisiana.

As support for his claim, the Veteran testified at a videoconference hearing in April 2011 before the undersigned Veterans Law Judge of the Board.  The Veteran submitted additional evidence and waived his right to have the RO initially consider it.  38 C.F.R. §§ 20.800, 20.1304 (2012).


FINDINGS OF FACT

1.  Payment or reimbursement of the cost of the private medical care received on August 30, 2009, was not authorized in advance by VA. 

2.  At the time medical care was rendered on August 30, 2009, the Veteran was in receipt of a 90 percent combined schedular rating for posttraumatic stress disorder (PTSD), diabetes mellitus, prostate cancer, hypertension, and bilateral peripheral neuropathy of the upper and lower extremities.  

3.  The Veteran's private treatment records from St. Charles Hospital indicate he sought treatment for cough and congestion, with a duration of one week.  He was diagnosed with sinusitis, which is not a service-connected disability.  

4.  The treatment provided on August 30, 2009, was not for 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.


CONCLUSION OF LAW

The criteria for establishing payment or reimbursement for unauthorized medical expenses incurred as a result of treatment provided at St. Charles Hospital on August 30, 2009, are not 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

I.  VA's Duties to Notify and Assist

The Board notes that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA generally has a statutory duty to assist the Veteran in the development of a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  The VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, as the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA).  Barger v. Principi, 16 Vet. App. 132 (2002).  Similarly, the statute at issue in this matter is not found in Chapter 51, but rather, in Chapter 17.  However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the United States Court of Appeals for Veterans Claims (Court) appeared to assume that the VCAA was applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. 

The Board also observes that the provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R Part 17 contain their own notice requirements.  Further, 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 payment/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. 

In this case, the Board finds that the notification provisions of Chapter 17 have been satisfied, as have been the duties to assist and notify under the VCAA (assuming it is applicable).  All relevant evidence necessary for the equitable disposition of the appeal has been obtained and that additional efforts to notify or assist the Veteran in the development of this case are not required.  Specifically, the Board finds that, in correspondence dated in January 2010, the VAMC advised the Veteran of VA's duties to notify and assist under the VCAA.  This letter specified what the evidence must show to establish entitlement to reimbursement of unauthorized medical expenses incurred by the Veteran.  Further, records are on file indicating the type of medical care received on August 30, 2009, that is the subject of this appeal.  In addition, no medical examination is warranted in this case as the outcome depends upon the nature of the medical treatment received on August 30, 2009 and not on the current nature and/or etiology of a specific medical condition. 

II.  Analysis

The Veteran stated during his April 2011 videoconference hearing, that he presented to the emergency room at the St. Charles Hospital on August 30, 2009, because was experiencing loss of equilibrium and dizziness.  The medical records from that date show he presented with complaints of nasal congestion and cough.  There was no indication of acute distress at the time the Veteran presented at the emergency room.  These records also show that the Veteran was ambulatory upon arrival, which was via private transport and accompanied by his wife.  His treating physician determined the Veteran was suffering from sinusitis and prescribed amoxicillin.  The Veteran was discharged in stable condition that same day.  

In support of his claim, the Veteran stated he drove to his normal VA medical facility in New Orleans, but it was a Sunday and the facility was closed.  He provided a photograph of the gate of the VA facility with a padlock and a sign indicating that if a person is in need of urgent services, they should report to the nearest emergency room.  The Veteran testified that his wife then drove him back to the emergency room near their home, which is approximately 25 miles from the VA facility.  

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). 

At the outset, the Board notes that the Veteran has not alleged that VA contracted with the St. Charles Hospital for his medical treatment, and there is no indication that VA authorization was obtained prior to this particular admission, or within 72 hours thereafter, for the medical services provided to the Veteran for which he is now seeking payment or reimbursement.  Accordingly, the Board finds that prior authorization for the private medical treatment received at St. Charles Hospital on August 30, 2009, was not obtained.  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. 

The Board initially finds that the Veteran does not qualify 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 90 percent rating combined schedular rating for PTSD, diabetes mellitus, prostate cancer, hypertension, and bilateral peripheral neuropathy of the upper and lower extremities.  The Veteran has testified that, at the time medical care was rendered on August 30, 2009, he was dizzy and experiencing a loss of equilibrium.  However, his claim fails under the first requirement as set forth pursuant to 38 U.S.C.A. § 1728 because the evidence does not establish that the treatment provided on August 30, 2009 was for a service-connected disability, or a nonservice-connected disability associated with and held to be aggravating a service-connected disability.  In this respect, the private treating physician at St. Charles Hospital diagnosed the Veteran with sinusitis, which is not one of his service-connected disabilities.  

Further, the evidence does not show that this was 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.  In making this determination, the Board notes that the Veteran's private treatment records from St. Charles Hospital indicate he was ambulatory upon arrival, used private transportation, and his chief complaints were for nasal congestion and cough for a duration of one week.  While he testified in April 2011 that he thought his symptoms were due to his diabetes, there is no indication that the symptoms were of such severity that delay in treatment would have been hazardous to life or health.  This is further supported by the fact that his wife drove him approximately 25 miles to the VA facility in New Orleans and, upon learning it was closed, drove him 25 miles back to the local emergency room.  

Moreover, in March 2010, a VA physician reviewed the Veteran's claims file, including a copy of the medical records for his treatment on August 30, 2009.  The reviewing physician determined the Veteran's care was non-emergent in nature because his complaints were for cough and congestion and it was documented that he was in "no acute distress" (NAD).  As such, it was concluded that the Veteran's condition could have been treated at an appropriate VA facility during normal business hours.   

Therefore, because all three of the requirements are not met, the Board finds that the Veteran is not entitled to payment or reimbursement of medical expenses pursuant to the provisions of 38 U.S.C.A. § 1728.

The Board has also considered whether the Veteran is entitled to payment or reimbursement of medical expenses under the provisions of 38 U.S.C.A. § 1725.  However, the Board finds that, the Veteran's claim fails for the same reasons as described above, namely that the treatment received on August 30, 2009 was not for a medical emergency 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.  

In evaluating this claim, the Board notes that the Veteran may meet some or even most of the criteria for entitlement to repayment of medical expenses under the provisions of 38 U.S.C.A. § 1725.  However, all nine criteria must be met in order for entitlement to be established.  See Melson, supra; 38 U.S.C.A. § 1728; 17.1001. 

The Board acknowledges the Veteran's contentions regarding his belief that the symptoms he was experiencing necessitated the emergency care at St. Charles Hospital.  However, the Board is bound by the law, and its decision is dictated by the relevant statutes and regulations.  Since the Veteran does not meet one of the criteria for payment or reimbursement under Sections 1725 or 1728 (i.e., a VA facility was reasonably available and an attempt to use them beforehand would have been reasonable, sound, wise or practicable), the claim must be denied. 

In sum, given that the non-VA medical treatment received on August 30, 2009, was not pre-authorized and the Veteran is not eligible for reimbursement under Section 1728 or 1725, the Board must deny the Veteran's appeal. 

ORDER

Payment or reimbursement of unauthorized medical expenses incurred as a result of treatment provided at St. Charles Hospital on August 30, 2009, is denied.


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs