Citation Nr: 1308325 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-17 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Salem, Virginia THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred in conjunction with treatment received from a private medical care provider from April 11, 2006 to April 15, 2006 and on August 29, 2006. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active service from July 1961 to April 1965. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in October 2007 and June 2009. This matter was originally on appeal from an August 2006 rating determination of the Salem, Virginia, VA Medical Center (VAMC). The Veteran appeared at a videoconference hearing before the undersigned Acting Veterans Law Judge in April 2009. A transcript of the hearing is of record. The Veteran was represented at the time of the Board hearing, but subsequently in July 2012 signed a pro se election form. He is therefore considered unrepresented on this appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's private treatment from April 11, 2006 to April 15, 2006 and on August 29, 2006, was not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses arising from care provided at a non-VA facility from April 11, 2006 to April 15, 2006 and on August 29, 2006, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's October 2007 Remand, the Veteran was afforded a videoconference hearing in April 2009. Pursuant to the Board's June 2009 Remand, the VAMC obtained and associated with the claims file VA medical records identified at the April 2009 hearing. The VAMC issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's October 2007 and June 2009 Remands. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court has, however, carved out exceptions where the provisions of the VCAA are not applicable. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). One of those exceptions is for claims that involve chapters of the U.S. Code other than chapter 51, applicable to claims, effective dates, and payments. For example, the Court held the VCAA inapplicable to chapter 53 benefits in both Barger v. Principi, 16 Vet. App. 132, 138 (2002) (waiver of overpayment of improved death pension benefits) and Lueras v. Principi, 18 Vet. App. 435 (2004) (waiver of overpayment of disability pension). Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. Nevertheless, the Veteran was provided adequate notification under the duty to notify in March 2007 prior to the issuance of the Statement of the Case. The Veteran has been provided opportunities to identify or provide pertinent evidence in support of his claim and he has provided pertinent evidence and argument. Further development and expending of VA's resources is, therefore, not warranted. Reimbursement of Unauthorized Medical Expenses The Veteran seeks reimbursement for costs related to private medical treatment from April 11, 2006 to April 15, 2006 and on April 29. 2006 performed by a non-VA hospital. Pertinent legal authority provides for the furnishing of care by VA hospitals, as well as reimbursement for private medical care when such is authorized by VA. Generally, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care. In this case, the veteran seeks reimbursement for private medical care not authorized in advance by VA. Reimbursement or payment for expenses not previously authorized may be made only under the following circumstances: (a) treatment was for (1) an adjudicated service-connected disability; (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; (3) any disability of a veteran who is permanently and totally disabled as a result of a service-connected disability; (4) for any illness, injury or dental disability in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31; and (b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA 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 U.S.C.A. § 1728; 38 C.F.R. §§ 17.52, 17.120. Failure to satisfy any one of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. See 38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998). Also, no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. See 38 C.F.R. § 17.130. The record indicates that in January 2006, the Veteran was admitted to Presbyterian Hospital for acutely occluded aorto-bi-iliac graft and had bilateral embolectomies performed. The flow was not adequately restored to his leg and he subsequently required revascularization with an axillo-bi-femoral grafting and bilateral fasciotomies for compartment syndromes. The Veteran continued to have difficulty with bilateral foot drop and significant truncal weakness which had been improving with physical therapy. On April 11, 2006, the Veteran underwent a surveillance duplex and was found to have laminated thrombus within the mid to distal portions of the crossover left to right fem-fem graft with decreased velocities suggestive of impending graft failure. At that time, the Veteran had no complaints including foot pain, chest pain, shortness of breath, or orthopnea. After physical examination, his physician determined that he required thrombectomy of his fem-fem graft and on-table arteriography. The physician noted that he would like to continue the Coumadin up until two days prior to surgery and that he would like to have the Veteran admitted one day prior to surgery and placed on Heparin to prevent graft failure coming off the Coumadin. The Veteran was re-admitted on April 12, 2006. A graft thrombecomy and on-table angiogram were performed on April 13, 2006. The Veteran was discharged on April 15, 2006. The April 15, 2006 discharge summary indicated that the Veteran underwent successful graft thrombectomy and had an uneventful postoperative course. Discharge diagnosis was pending graft failure with near occlusive thrombus in the fem/fem graft. A February 20, 2007 Salisbury Physician Review form indicates that on August 29, 2006, the Veteran underwent post operative extremity studies. In this case, the veteran does not meet any of the four elements of the first criteria listed above in 38 U.S.C.A. § 1728(a). His treatment at Presbyterian Hospital was not for a service-connected disability or a nonservice-connected disability associated with and held to be aggravating a service-connected disability, and the claims file does not reflect that the veteran was considered permanently and totally disabled as a result of a service-connected disability, or that he was participating in a rehabilitation program under 38 U.S.C. Chapter 31. Thus, the veteran is not eligible for medical expense reimbursement under 38 U.S.C.A. § 1728. The veteran's claim has also been considered under pertinent provisions of The Millennium Health Care and Benefits Act, Pub. L. 106-117, codified at 38 U.S.C.A. § 1725. Under that statute-which also provides general authority for the reimbursement of non-VA emergency treatment-payment for emergency services may be made only if all of the conditions set forth in 38 C.F.R. § 17.1002 are met. In particular, the following subsections are relevant to this case: (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 before hand 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). 38 C.F.R. § 17.1002 (a), (b), (c). Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that reimbursement of non-VA emergency treatment is not warranted under the Millennium Health Care and Benefits Act. The evidence reflects that the Veteran had no significant symptoms on April 11, 2006 or August 26, 2006. The April 15, 2006 discharge summary indicated that the Veteran underwent successful graft thrombectomy and had an uneventful postoperative course. The February 2007 Physician Review Form indicated only that the Veteran underwent extremity studies on August 29, 2006. The Board notes that no document indicates that treatment on April 2006 or August 2006 was provided in the Presbyterian Hospital emergency room. The evidence thus does not reflect that the first criterion was met. See 38 C.F.R. § 17.1002(a). However, even assuming, arguendo, that either the April 11-15, 2006 or August 29, 2006 services were provided in an emergency room, the evidence does not reflect that the Veteran's condition at those times 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. As noted above, nothing in these records indicates any medical condition requiring immediate attention. In the absence of evidence that the expenses of the private hospital care were rendered in an emergency room or in a medical emergency of such nature that delay would have been hazardous to life or health, and as all the criteria must be met in order to establish entitlement to payment or reimbursement of medical expenses under the statute, the Board need not discuss further the third criterion of whether a VA or other Federal facility was feasibly available. As the record presents no factual basis to establish entitlement to payment or reimbursement of the medical expenses incurred at Presbyterian Hospital from April 11, 2006 to April 15, 2005 and on August 29, 2006, not previously authorized under the governing legal authority, there is no legal basis that allows for VA payment or reimbursement of such expenses. As to the Veteran's argument that he should be reimbursed because his VA primary care physician advised him to go to the nearest medical facility and not to go to VA facility, the Board is sympathetic to the Veteran's report that a VA employee mislead or confused him with regard to where he should seek medical treatment. The Veteran is competent to report that he received erroneous advice. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson competent to report a contemporaneous medical diagnosis). Even if the Veteran was given erroneous advice and this constituted administrative error, "VA would not be bound to grant benefits due to this administrative error." Owings v. Brown, 8 Vet. App. 17, 23 (1995), aff'd, 86 F.3d 1178 (Fed. Cir. 1996)(table). VA's Secretary does have the power to grant equitable relief in certain circumstances. See 38 U.S.C.A. § 503 (West 2002), and the Board will consider whether such equitable relief is warranted below. The Board remanded the case in June 2009 in order to obtain VA treatment records in an effort to substantiate the Veteran's claim that a VA physician advised him to seek medical attention somewhere other than VA. The record indicates that the Veteran was seen by his primary care provider on February 7, 2006, April 21, 2006, July 7, 2006, and August 23, 2006; however, there is no indication in that record that the Veteran was told at any of those visits to seek medical care at a facility other than VA. It is possible that the Veteran was given advice that was not noted in the clinical records. The Board finds, however, that this possibility, based on the Veteran's general allegation of having received erroneous advice, does not warrant referral of the matter to the Secretary for consideration of the provision of equitable relief. See Chairman's Memorandum No. 01-96-21 (June 11, 1996). Finally, the Board notes that a physician's opinion was obtained in February 2007, and the physician indicated that pre-op extremity studies conducted on April 11, 2006, in-patient care from April 14, 2006 to April 15, 2006, and post-op extremity studies on August 29, 2006, were not adjunct to service-connected disability, not emergent, that VA facilities were available, and that the Veteran was stable and could have sought treatment at VAMC. As such, the evidence fails to establish the second criterion under 38 U.S.C.A. § 1728 and fails to establish criterion (a) under 38 U.S.C.A. § 1725. See 38 C.F.R. §§ 17.120, 17.1002. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application, and referral to the Secretary to determine whether equitable relief is warranted is not appropriate in the circumstances of this case. See 38 U.S.C.A. §§ 503, 5107(b). ORDER Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred in conjunction with treatment received from a private medical care provider from April 11, 2006 to April 15, 2006 and on August 29, 2006, is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs