Citation Nr: 1311004 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-46 704A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical services provided by Citrus Memorial Health System on April 27, 2009. REPRESENTATION Appellant represented by: Joanne S. Wilburne, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran served on active duty from November 2000 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida. The Veteran request and was scheduled for a hearing before a Veterans Law Judge. He failed to report for the scheduled hearing. Therefore, his hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704(e). FINDINGS OF FACT 1. The Veteran received medical treatment at Citrus Memorial Hospital on April 27, 2009 for symptoms associated with his service-connected psychiatric disorder. 2. At the time of the April 2009 treatment at Citrus Memorial Hospital, the Veteran was in receipt of service-connected benefits for bipolar disorder, evaluated as 70 percent disabling; a right shoulder disability, evaluated as 10 percent disabling; bilateral pes planus, evaluated as 10 percent disabling; and gastroesophageal reflux disease, evaluated as noncompensably disabling. His combined evaluation for compensation was 80 percent. 3. The evidence does not show that the treatment was 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. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement for medical services provided by Citrus Memorial Hospital on April 27, 2009 under 38 U.S.C.A. § 1728 have not been met. 38 U.S.C.A. §§ 1710, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121 (2012). 2. The criteria for payment or reimbursement for medical services provided by Citrus Memorial Hospital on April 27, 2009, pursuant to the "Millennium Bill Act," 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 FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2012). 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. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Nevertheless, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses. Specifically, a November 2009 letter explained the criteria under which payment could be made for non-VA care. This letter invited the Veteran to submit or identify relevant evidence. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. Analysis On April 13, 2009, the Veteran presented to a VA outpatient clinic after experiencing a panic attack in his car on his way to school. He indicated that his symptoms included tightness in his chest and tingling of both arms. When he was seen by a health technician for intake, he stated that he was feeling better and had begun to get control of the attack. The Veteran presented to the Citrus Memorial Hospital emergency room on April 27, 2009. A rapid triage form indicates anxiety and chest pain. The intake notes indicate his chief complaint of stress and anxiety; he also reported that he was out of Xanax. The provider noted that the context of the Veteran's complaints included chronic posttraumatic stress disorder and that the signs and symptoms were anxiety. The clinical impression was stress/anxiety. An EKG was normal. Discharge instructions advised the Veteran that an important part of his present problem was from anxiety and emotional distress. He was advised that they could cause physical symptoms to include chest or stomach pain. On April 28, 2009, the Veteran's mother called the VA outpatient clinic and reported that she had taken him to Citrus Memorial the previous night for extreme anxiety and chest pain. In May 2009, a chief medical officer determined that the Veteran's medical condition was not emergent. He noted that the Veteran reportedly ran out of Xanax and that his symptoms were likely secondary to overuse of prescribed medications. He indicated that emergency department treatment may not be compatible with the Veteran's bipolar condition. In August 2009, a medical officer upheld the previous determination, noting that a 27 year old should not have any expectation of chest pain being serious. He noted that the Veteran's primary complaint was stress, anxiety, and being out of Xanax. He pointed out that a medication request at an emergency department was not appropriate. When a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment if required criteria are met. See 38 U.S.C.A. § 1725 and § 1728 (West 2002 & Supp. 2012). Application of either statute is generally dependent on whether the claimant has an adjudicated service-connected disability. The Board acknowledges that effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). This bill makes various changes to Veteran's mental health care and also addresses other health care related matters. The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization. Most importantly, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C.A. § 1725 or § 1728. The Board further notes that effective May 21, 2012, VA amended its regulations regarding payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities to conform with amendments made to 38 U.S.C.A. § 1725 by the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010). Specifically, VA amended 38 C.F.R. §§ 17.1001 , 17.1002, 17.1004, and 17.1005, to expand the qualifications for payment or reimbursement to veterans who receive emergency services in non-VA facilities, and establish accompanying standards for the method and amount of payment or reimbursement. The amendments also state that VA will provide retroactive payment or reimbursement for emergency treatment received by a veteran in certain circumstances. See 77 Fed. Reg. 23,615-23,618 (April 20, 2012). Under 38 U.S.C.A. § 1728, generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, (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 rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j) (2000)); and (b) the treatment was 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; and (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior 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 (West 2002 & Supp. 2012); 38 C.F.R. § 17.120. All three statutory requirements (a, b, and c) must be met before the reimbursement may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. 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 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); (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 a nature that the Veteran could not have been safely transferred to a VA or other Federal facility; (e) 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; (f) The Veteran is financially liable to the provider of emergency treatment for that treatment; (g) 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); (h) 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 (i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 . These criteria 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). In this case, the Veteran maintains that he sought treatment at Citrus Memorial Hospital under emergent circumstances. He has stated that, in light of his family history of heart conditions, he thought his chest pain indicated that he was having a heart attack. Thus, he appears to be arguing that he reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health. A review of the record, however, does not support his contention. Initially, the Board notes that the intake notes from the emergency room do not note that the Veteran thought he was having a heart attack given his family history of heart conditions. Rather, those notes specifically state that his chief complaint was of stress and anxiety. He also conveyed his lack of Xanax and history of a psychiatric disorder, showing a degree of insight into the cause of his symptoms. While the Veteran did note chest pain, the Board cannot ignore the fact that the Veteran was seen just two weeks prior at a VA facility for the exact same symptoms, which were found to be a panic attack at that time, just as was found at this second visit to the private facility. While the Veteran's statements now appear to portray such an expectation, his statements to emergency room intake professionals show a different state of mind. The Board finds the contemporaneous statements more probative on the matter. The Board further finds illustrative the opinions of both reviewing physicians, who have concluded that the treatment was not rendered in an emergent situation. Both explained the underlying reasons for their conclusions, and there is no medical evidence to counter their determinations. In this case, the reviewing physicians agreed that seeking emergency department care was not appropriate; one specified that a 27 year old should not have any expectation of chest pain being serious, and indicated that a medication request at an emergency department was not appropriate. As such, given the totality of the evidence, the Board must find that the Veteran is not eligible to receive reimbursement for the reasonable value of the treatment in question under the provisions of 38 U.S.C.A. § 1728. The Board also concludes that the Veteran is not eligible to receive reimbursement for the reasonable value of the treatment in question under the provisions of 38 U.S.C.A. § 1725. In that regard, the record clearly shows that the treatment rendered at Citrus Memorial Hospital was for an adjudicated service-connected disability - anxiety and stress symptoms associated with the service-connected psychiatric disorder. As such, the provisions of § 1725 do not apply in this case. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim, so there is no reasonable doubt to resolve in his favor. 38 C.F.R. §§ 3.102, 4.3; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). His appeal must be denied. The Board recognizes and sympathizes that the Veteran now has unexpected financial obligations. However, the Board is bound by the law, and this decision must be made in accordance with the relevant statutes and regulations. The Board further observes that "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)). ORDER Payment or reimbursement for unauthorized medical services provided by Citrus Memorial Health System on April 27, 2009, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs