Citation Nr: 1306885 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-40 759 ) DATE ) ) On appeal from the Department of Veterans Affairs South Central VA Health Care Network in Flowood, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from November 10, 2009 to November 12, 2009 at Louisiana Heart Hospital (LHH). ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. M.K.M, a Hospital Appeal Nurse on behalf of LHH, is the appellant herein. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the South Central VA Health Care Network in Flowood, Mississippi, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by LHH from November 10, 2009 to November 12, 2009 was denied. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. At the time of the November 2009 private medical treatment received at LHH, the Veteran had been awarded a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU). 2. From November 9, 2009 to November 12, 2009, the Veteran received medical treatment that was not previously authorized by VA for complaints of severe epigastric pain at LHH, a non-VA hospital. 3. Payment of hospitalization was authorized for November 9, 2009. 4. The medical care the Veteran received from November 10, 2009 to November 12, 2009 was for a condition that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health. 5. For the medical care the Veteran received from November 10, 2009 to November 12, 2009, there were no VA medical facilities feasibly available and an attempt to use them beforehand would not be reasonable. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria are met for payment or reimbursement of the unauthorized medical expenses incurred from November 10, 2009 to November 12, 2009, at LHH. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 17.52(a), 17.120, 17.1000-17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the claim on appeal being addressed herein have been properly developed and no further assistance to the appellant is required in order to comply with the duty to notify or assist. This case concerns a legal determination of whether the appellant is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§ 1725 or 1728. For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits do not apply. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Barger v. Principi, 16 Vet. App. 132, 138 (2002) (involving waiver of recovery of overpayment claims), the U.S. Court of Appeals for Veterans Claims (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. 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 appellant 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. As the Board is granting the benefit sought on appeal, a discussion of VA's duties to notify and assist is not necessary. Payment or Reimbursement of the Unauthorized Medical Expenses In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2012); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 ], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2012). The admission of an appellant to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2012); see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2012). In the present case, the evidence does not show that the Veteran sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred from November 10, 2009 to November 12, 2009. The record also does not indicate that the Veteran may have contacted VA within 72 hours of the initial care at LHH. Accordingly, the Board must conclude that prior authorization for the private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54 (2012), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002). When the veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2011). Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. Initially, the Board notes that under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-17 .1008. However, in this case, section 1725 relating to treatment of nonservice-connected disorders does not apply because the Veteran has been granted TDIU, as explained further below. See 38 U.S.C.A. § 1728(a); see also 38 C.F.R. §§ 17.1000, 17.1002(i). Failure to further consider section 1725 is of no consequence here, as the definition of what constitutes "emergency treatment" under either 38 U.S.C.A. § 1725 or § 1728 is now identical. In light of the fact that a TDIU (a total disability rating) has been awarded to the Veteran, the applicable law in this case is 38 U.S.C. § 1728. Prior to October 10, 2008, Section 1728(a), Title 38, United States Code, provided 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; 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 38 C.F.R. § 17.120 (2007). Under the new version of 38 U.S.C.A. § 1728, the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability, etcetera. However, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to the word "shall." In addition, and most importantly, the new law expands the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or 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 (C) until-- (i) such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if-- (I) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. See 38 U.S.C.A. § 1725 and § 1728 (West 2002 & Supp. 2011). All three of these statutory requirements must be met before any payment may be authorized. See Fritz v. Nicholson, 20 Vet. App. 507 (2006); see also Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C.A. § 1728 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As previously reported, the appellant's claim for payment or reimbursement of unauthorized, private medical expenses associated with treatment provided to the Veteran at LHH from November 10, 2009 to November 12, 2009, was primarily denied because it was found that the Veteran's condition for which he received treatment and underwent surgery was not emergent. Thus, the crux is whether the surgery (or the need for said treatment) was 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, and whether 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. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2011); 38 C.F.R. § 17.120(b), (c) (2012). The Court has held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). The Court has noted that when weighing the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent, the Board may consider objective evidence. Similarly, the Board may consider evidence regarding whether the treatment ultimately rendered was for an emergent condition. Id. at 265-66. The Board has considered, under the totality of circumstances present at the time the Veteran underwent surgery and received treatment from November 10, 2009 to November 12, 2009 at LHH, whether a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to his health or life. See Swinney, 23 Vet. App. at 264. For the reasons set forth below, the Board finds that payment or reimbursement is warranted for the care provided by LHH from November 10, 2009 to November 12, 2009. Preliminarily, the Board notes that the Veteran resided in Mandeville, Louisiana, at the time of his emergency treatment. The nearest VA medical treatment facilities are located in Slidell, Hammond, and two facilities in New Orleans. Slidell, Hammond, and one facility in New Orleans are outpatient clinics. The other, larger facility in New Orleans only has urgent care. None of these facilities offers emergency room care. The closest emergency room service available to the Veteran is at Tulane Medical Center, a hospital with whom VA has contracted. The Tulane Medical Center is approximately 36 miles from the Veteran's residence. The private facility (LHH) is approximately 10 miles from the Veteran's residence. At the time of the Veteran's private medical care, service connection was in effect for posttraumatic stress disorder (PTSD) and bilateral hearing loss, and he was receiving a TDIU due to his service-connected disabilities. Currently, the Veteran is service-connected for PTSD, bilateral hearing loss, coronary artery disease, tinnitus, and a residual scar of coronary artery bypass. The record reflects that prior to November 2009 the Veteran was admitted to LHH in June 2009 for complaints of severe abdominal pain and was noted to have extraordinarily elevated amylase and lipase levels. All other tests administered at that time were normal. The Veteran went home and subsequently had a gastrointestinal workup at a VA medical center. In or around August 2009, the Veteran underwent a colonoscopy removing small polyps and finding diverticulitis. The Veteran also had a noted history of increased cholesterol, angina, coronary artery disease, anxiety, and gastrointestinal reflux disease (GERD). When the Veteran presented himself to the emergency room on November 9, 2009, he had severe epigastric pain for three days which had progressively worsened, and had amylase and lipase levels in the thousands. He was assessed with abdominal pain, pancreatitis with a history of recent pancreatitis, questionable diverticulitis, elevated liver function tests, elevated cholesterol, history of angina, coronary artery disease, anxiety, PTSD, and GERD. In this regard, payment of hospitalization was authorized for November 9, 2009 as the Veteran's condition was considered under emergency treatment. Thus, the period at issue (from November 10, 2009 to November 12, 2009) includes surgery and subsequent recovery. On November 10, 2009, a gastroenterology consultation note indicated that during the current hospitalization a computed tomography scan of the Veteran's abdomen and pelvis showed some pathology of his gallbladder. After of review of the Veteran's medical history and a physical examination, the gastroenterologist rendered an impression of gallstone pancreatitis with cholecystitis and diverticulitis. That same day, subsequent to the gastroenterology consultation, the Veteran had a general surgery consultation. There, after reviewing the Veteran's medical history and conducting a physical examination, the surgeon provided an impression of recurrent biliary pancreatitis without biliary obstruction. At that time, the Veteran was stable and improving. He did not have evidence for any necrotic pancreas and the consulting surgeon believed that the Veteran would resolve this episode without any complications. Significantly, however, and despite his impression that the Veteran's condition would resolve, the consulting surgeon recommended that the Veteran undergo a laparoscopic cholecystectomy prior to discharge of the current hospital admission to prevent recurrence, which he had already shown to have. The consulting surgeon discussed the surgery option with the Veteran who eagerly agreed to proceed as he was extremely worried about having future episodes. Ultimately, the consulting surgeon recommended a cholecystectomy with a cholangiogram which he indicated could be performed the following day since the Veteran was quickly improving. If the Veteran seemed to have any significant residual pain, the surgeon indicated that surgery could wait. While the surgeon's November 10, 2009 consultation noted that the Veteran could undergo surgery as early as the next day, the Veteran underwent surgery the same day, on November 10, 2009. On November 12, 2009, after two days of recovery, the Veteran was approved for discharge by the surgeon and the gastroenterologist since his vital signs were stable and a physical examination was normal. After a review of the evidence, lay and medical, the Board finds that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. As described above, the nature and severity of the Veteran's symptoms are indicative of an emergent condition from the perception of the lay person (the Veteran) experiencing them. While the Veteran's condition did improve, the surgeon's recommendation to undergo surgery before discharge and the Veteran's eager agreement reflect the Veteran's belief that he was experiencing an emergency medical condition which comports with what a prudent layperson would reasonably describe as being emergent. While the diagnosis ultimately rendered was not for an emergency condition, the Board finds that from the perspective of the Veteran, a prudent layperson at the time the event was happening would have reasonably believed that a medical emergency was taking place. The fact that the treatment for acute symptoms (severe epigastric pain and high levels of pancreas enzymes) improved after the first day of hospital admission does not diminish the distress felt by the Veteran or treat the underlying pancreatitis condition, which was significant enough to require immediate surgery. Indeed, the surgeon, a medical expert, recommended that the Veteran receive immediate treatment before being discharged from the hospital and because the Veteran underwent surgery the very same day of surgery consultation, this evidence strongly indicates that the Veteran was in fact experiencing an ongoing emergent medical situation. With respect to the issue of whether VA facilities were feasibly available, in light of the inaccessibility of VA emergency room type care for over 35 miles from the Veteran's residence in contrast to the 10 miles to LHH, is probative evidence that a VA medical facility (or a medical facility with whom VA has contracted) was not feasibly available for the emergency needs of the Veteran at that time and an attempt to use it beforehand would not have been reasonable. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by LHH from November 10, 2009 to November 12, 2009, under the amended version of 38 U.S.C.A. § 1728, have been met. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization from November 10, 2009 to November 12, 2009 at LHH is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs