Citation Nr: 1311837 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-17 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at Cape Coral Hospital on December 1, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from August 2003 to August 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating determination of the Bay Pines, Florida, VA Medical Center (VAMC). FINDING OF FACT The Veteran's treatment on December 1, 2008 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 Cape Coral Hospital on December 1, 2008, 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 Notice and Assistance 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). 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 2009. 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 at Cape Coral Hospital on December 1, 2008 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 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 Veteran's service connected disabilities are chronic lumbar strain, pes planus, and residuals of left knee lateral meniscus tear; his combined service connected rating is 30 percent. On December 1, 2008, the Veteran was seen in the emergency room of Cape Coral Hospital, reporting that he had awoken that day with abrupt onset of epigastric burning pain, cramping in nature, that had lasted a few hours and then resolved. He had never had pain like this before, was concerned, and wanted to be evaluated. He was currently pain-free and denied vomiting, diarrhea and recent antibiotic use. The Veteran also denied fevers, chills, sweats, or weight loss. He had no other complaints. The Veteran was examined and diagnosed with nonspecific abdominal pain, no peritoneal signs by history. He was discharged and advised to follow up with the Family Health Center and given a prescription for Zantac and Prilosec. 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 Cape Coral Hospital was not for a service-connected disability or a nonservice-connected disability associated with and held to be aggravating a service-connected disability; he was not considered permanently and totally disabled as a result of a service-connected disability; and he was not 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: (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). Reimbursement of non-VA emergency treatment is not warranted under the Millennium Health Care and Benefits Act as the evidence reflects that the Veteran's acute abdominal pain had resolved by the time he arrived at Cape Coral Hospital. The Veteran has indicated in written statements of record that when he awoke with extreme abdominal pain he believed that his appendix may have been about to burst or that he was otherwise in life-threatening danger. The VAMC reviewer in December 2008 indicated that the claim should be denied because the Veteran's treatment was non-emergent and that a VA facility was available. It was noted that the Veteran had a primary care physician at a VA outpatient clinic. Following receipt of the Veteran's notice of disagreement, the VAMC performed a second review of the claim in March 2009, and continued the denial. The reviewing physician stated that none of the objective findings would indicate an emergency. He noted that the Veteran had no signs associated with pain, such as vomiting, diarrhea, or dizziness to suggest that it was emergent to the degree that he could not be seen at the VA clinic prior to being sent to the emergency room. The physician agreed with the prior, December 2008, review of the claim. The evidence does not reflect that the Veteran's condition at the time he reported to Cape Coral Hospital 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, his abdominal pain had resolved prior to his being seen at the hospital, and he had no other symptoms such as vomiting, diarrhea, dizziness, or fever. The only medical professionals to have reviewed the facts of the case have concluded that an emergency was not present. In the absence of evidence that the expenses of the private hospital care were rendered 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 criterion of whether a VA or other Federal facility was feasibly available. 38 C.F.R. § 17.1002. The Board is sympathetic to the Veteran's situation. However, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In that regard, "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). 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. See 38 U.S.C.A. §§ 503, 5107(b). ORDER Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at Cape Coral Hospital on December 1, 2008, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs