Citation Nr: 1313659	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  10-38 796	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Medical Center (MC) in Brecksville, Ohio


THE ISSUE

Entitlement to reimbursement or payment of the cost of private medical services provided to the Veteran by the Lake Orthopedic Associates on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010.


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran had active service from September 1965 to April 1970.  

The appellant is a physician and surgeon who treated the Veteran for an acute complex fracture of his left wrist.  He is now seeking payment from the VA for the costs of such medical care and treatment.

This matter comes before the Board of Veterans' Appeals (Board) from March 2010 and August 2010 decisions made by the VAMC.  In February 2013, the appellant clarified that he did not wish to have a hearing before the Board in this matter.


FINDINGS OF FACT

1.  The appellant performed surgery and provided follow-up care for the Veteran's complex left wrist fracture.

2.  Only the follow-up care visits are at issue in this appeal.

3.  The follow-up care visits did not involve an emergency situation.  

4.  The follow-up care visits were not for, or adjunct to, a service-connected disability; or a non-service-connected disability associated with and held to be aggravating a service-connected disability; and the Veteran is not alleged to be a participant in a vocational rehabilitation program.  He also had not been adjudged to be permanently disabled. 


CONCLUSIONS OF LAW

1.  In the absence of prior authorization for payment of the private medical expenses incurred for follow-up medical care provided on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010, payment or reimbursement for such expenses is not warranted.  38 U.S.C.A. § 1703 (West 2002); 38 C.F.R. §§ 17.52, 17.54 (2012).

2.  The criteria for payment or reimbursement of unauthorized medical expenses, pursuant to 38 U.S.C.A. § 1728, incurred on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010, have not been met.  38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to notify and assist

Under the provisions of the Veterans Claims Assistance Act of 2000, VA has certain notice and assistance requirements.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  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 provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R Part 17 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 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.

The appellant was provided with a notice letter in May 2010 following receipt of his notice of disagreement.  Furthermore, he was informed of the bases of the denial of the claim and he has been provided with a statement of the case which outlines the laws and regulations used in evaluating his claim.  There is no indication that any additional notice or development would aid the appellant in substantiating the claim.  38 U.S.C.A. §§ 5103, 5103A.
 
Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Analysis

The Veteran was involved in a motorcycle accident on November 15, 2009.  He was seen and evaluated by the Emergency Department at Lake West Hospital.  X-ray studies performed at that time revealed a left distal radial metaphyseal fracture.  He was placed in a temporary splint.  On November 17, 2009, he visited the appellant at his office.  Medical records reflecting that visit show that the Veteran was in no apparent distress, although he had significant swelling around the left wrist and hand, and was tender to palpation.  The appellant recommended surgical treatment, and discussed the surgery, risks involved, and a post-operative rehabilitation plan with the Veteran during this initial patient visit.  The appellant then performed the surgery at Lake West Hospital on November 20, 2009.  Post-surgery follow-up reports, dated November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010, reflect that the Veteran had a good result from the surgery, manifested by a healed fracture with essentially anatomic alignment, with appropriate range of motion, and neurovascularly intact.  

VA payment records reflect that VA made a payment to the appellant's practice, Lake Orthopedic Associates, for services rendered on November 20, 2009.  Another payment for services rendered November 20, 2009, was made to the Lake West Hospital.  Thus, both payments presumably represent at least partial payment for the surgery performed on November 20, 2009.  VAMC denial letters dated in March 2010 and August 2010 specifically address the four dates on which the Veteran had follow-up care visits after the surgery.  

The appellant is seeking payment from the VA for the remainder of the costs involved in the Veteran's care.  He asserts that the Veteran required emergency care and specialized treatment by a hand surgeon such as himself, and that transferring the Veteran to a VA facility would have caused greater expense to VA.  He specifically requests that VA address this argument.  

Initially, in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the appellant received in a private facility for the treatment received on any of the dates in question.  38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54.  This is a factual, not a medical, determination.  Similes v. Brown, 5 Vet. App. 555 (1994).  

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), "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); 38 C.F.R. § 17.52.

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; 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.

In the present case, there is no evidence that the appellant, or the Veteran sought and obtained proper authorization for VA payment of the private medical expenses incurred for treatment by the appellant and Lake Orthopedic Associates on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010.  There is no indication whatsoever that the VA gave prior authorization for the Veteran's non-VA care, or that the Veteran requested such prior authorization.  Rather, it appears that the appellant's office submitted a health insurance claim form to VA after the care was provided.

Perhaps more importantly, however, there is no indication that the medical care at issue was provided for an emergent situation.  The denial of payment at issue was for four post-surgery appointments, over a period of approximately three months.  Review of the records of these medical visits reflects that the Veteran was making a normal recovery, without complications.  No emergency was involved.  

In this regard, we emphasize that the VA has paid the appellant for the surgery itself.  It may be that the appellant feels the payment was inadequate, although he has not articulated this with any specificity in his written arguments.  However, the denials on appeal all involve the routine office visits to ensure that the Veteran's wrist was healing appropriately after the November 2009 surgery.  The Board is unable to perceive any emergent situation whatsoever in the post-surgery after care.  

The Board is also somewhat baffled at the appellant's request that the VA specifically address his argument about how transferring the Veteran to a VA hospital by ambulance would cause more expense.  There is no indication that an ambulance would have been required to transport the Veteran to his follow-up appointments at Lake Orthopedic Associates on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010.  If the appellant is referring to the date of the accident itself, we again emphasize that the treatment the Veteran received at the Lake West Hospital has been paid for by VA, and is not the subject of this appeal.  Furthermore, the appellant has not submitted a bill for medical care provided to the Veteran on the date of the motorcycle accident itself.  Rather, it appears that the appellant initially saw the Veteran for the purpose of examining his left wrist injuries two days after the accident itself.  There is no indication that the Veteran required an ambulance at any of these times.  

The United States Court of Appeals for Veterans Claims, hereinafter the Court, has stated that a "second avenue for potential relief for a veteran entitled to VA care forced to obtain treatment at a non-VA facility is 38 U.S.C. § 1728, which provides that the Secretary 'may, under such regulations as the Secretary shall prescribe, reimburse . . . for the reasonable value of such care or services . . . for which such veterans have made payment.'"  Malone, 10 Vet. App. at 541 (1997), quoting 38 U.S.C.A. § 1728(a).

Such reimbursement is available only 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 service member 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 an appellant who has a total disability permanent in nature from a service-connected disability, or (D) for any illness, injury, or dental condition in the case of an appellant who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and 

(3)  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.  38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120.  See also 76 Fed. Reg. 79,067-72 (Dec. 21, 2011). 

The Court has observed that, given the use by Congress of the conjunctive "and" in the statute, emphasized in the above quotation, "all three statutory requirements would have to be met before reimbursement could be authorized."  Malone, 10 Vet. App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993).

That the appellant has failed to present a convincing argument that the follow-up care was of an emergency nature is discussed above.  However, even so, the evidence does not show that the treatment was for a service-connected disability or for a nonservice-connected disability that was affecting a service-connected disability.  See Swinney v. Shinseki, 23 Vet. App. 257 (2009).  Moreover, there is nothing in the record that would indicate that the treatment was for a permanent and total disability, and the appellant was not participating in a vocational rehabilitation program.  As such, payment is not warranted for expenses incurred in conjunction with the treatment provided by the appellant and Lake Orthopedic Associates on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010, pursuant to 38 U.S.C.A. § 1728.

The record is blank as to whether the Veteran may have been able to obtain the needed care through the VA medical system.  In this instance, there is nothing but the appellant's assertions that he needed to follow-up after the surgery.  There is no indication suggesting that a VA facility was not available to the Veteran for such follow-up care.  There is also nothing in the record indicating that the Veteran contacted the appropriate department of the VAMC seeking a referral for fee based care with the appellant.  Accordingly, the Board concludes that the treatment undergone by the veteran could have occurred at a VA facility without placing the health of the Veteran in serious jeopardy, or causing the Veteran to experience serious impairment to bodily functions, or having serious dysfunction of any of the Veteran's bodily organs or parts.  See Swinney v. Shinseki, 23 Vet. App. 257 (2009). 

In other words, payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1728.

Finally, 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. §§ 17.1000-1002.  See also 76 Fed. Reg. 79,067-72 (Dec. 21, 2011).  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999). To be eligible for reimbursement under this authority the appellant 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 nature that a prudent layperson would have reasonably expected that delay in seeking 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 beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could be met by evidence establishing that the Veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was not 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 (the medical emergency lasts only until the time the Veteran becomes stabilized);

(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.A. 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 the 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 appellant 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 appellant's, primarily those who receive emergency treatment for a service-connected disability).  38 C.F.R. § 17.1002.  See also 76 Fed. Reg. 79,067-72 (Dec. 21, 2011).  

Of note is that 38 U.S.C.A. § 1725 was amended effective February 1, 2010; however, the amendments are not applicable to this case.  See Pub. L. No. 111-137, § 1(a),(b), 123 Stat. 3495 (2010). 

The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available.  See Cotton v. Brown, 7 Vet. App 325, 327 (1995).  Feasibly available is not defined in 38 U.S.C.A. § 1728 or 38 C.F.R. § 17.1002.  Under the provisions of 38 C.F.R. § 17.53, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities.  38 C.F.R. §§ 17.52 and 17.53.  For example, a VA facility would not be feasibly available if there was evidence establishing that a patient 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 facility.  38 C.F.R. § 17.1002(c). 

Upon reviewing the evidence, the Board concludes that the Veteran's case does not satisfy all of the elements of the Millennium Act:   In particular, delay in seeking immediate medical attention would not have been hazardous to life or health.  A prudent layperson who possesses an average knowledge of health and medicine and who was experiencing the symptoms complained thereof by the Veteran may not have reasonably expected the absence of immediate medical attention to result in placing his health in serious jeopardy, or experiencing serious impairment to bodily functions, or having serious dysfunction of any bodily organ or part.  This is specifically true in this case because the Veteran was simply receiving follow-up care with no emergency whatsoever.   
The file currently does not contain enough information as to the other conditions which must be met.  However, because all of the conditions must be met, and the first two have not been met, reimbursement under the Millennium Act cannot be approved.  

The Board is bound by the 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 the result to be equitable.  38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  Additionally, "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)).  There simply is no provision under which the Board may grant the appellant the benefits sought.  Accordingly, the benefit sought on appeal is denied.


ORDER

Reimbursement or payment for the cost of private medical services provided to the Veteran by the Lake Orthopedic Associates on November 30, 2009, December 14, 2009, January 11, 2010, and February 22, 2010, is denied.




____________________________________________
Mark W. Greenstreet
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs