Citation Nr: 1314463 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-06 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Augusta, Maine THE ISSUE Entitlement to payment or reimbursement of medical expenses for emergency services at Saint Andrews Hospital on June 25, 2009. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1990 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Augusta, Maine, Department of Veterans Affairs (VA) Medical Center (MC). In May 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. The Veteran's statements at his hearing indicate actual knowledge of the evidence necessary to substantiate his claim. FINDING OF FACT The non-VA medical treatment the Veteran received on June 25, 2009, was not authorized by VA and was not rendered in a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses for emergency services at Saint Andrews Hospital on June 25, 2009, are not met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties 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). Notice is to be provided a claimant prior to the initial decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). The requirements are not applicable where further assistance would not aid in substantiating a claim, including if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. VA is not required to provide assistance if no reasonable possibility exists that such assistance would aid in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); Dela Cruz v. Principi, 15 Vet. App. 143 (2004); 38 U.S.C.A. § 5103A(a)(2) (West 2002). The pertinent facts in this case demonstrate that the Veteran was notified by VA correspondence in August 2009 of the reason for the denial of his claim and the evidence necessary to substantiate his claim. His August 2009 notice of disagreement indicates he had actual knowledge of the evidence necessary to substantiate his claim prior to its readjudication in a September 2009 statement of the case. A September 2009 VA report noted that further assistance was not required because the regulatory requirements for payment or reimbursement had not been met. The Board finds that further notice or assistance would not aid in substantiating the claim. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The regulations for payment or reimbursement for emergency treatment furnished by non-VA providers to certain veterans with service-connected disabilities s were revised effective January 20, 2012. 76 Fed. Reg. 79067 (Dec. 21, 2011). When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change, if more favorable to the Veteran, as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (2003), 69 Fed. Reg. 25179 (2004); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to January 20, 2012, VA regulations provided that, to the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service connected disabilities. Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities 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 (does not apply outside of the States, Territories, and possessions of the United State, the District of Columbia, and the Commonwealth of Puerto Rico); (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in §17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or obtain prior VA 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(a) (West 2002); 38 C.F.R. § 17.120 (2011). Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Hayes v. Brown, 6 Vet. App. 66 (1993); Malone v. Gober, 10 Vet. App. 539 (1997); Cotton v. Brown, 7 Vet. App. 325 (1995). The revised VA regulations provide that, to the extent allowable, payment or reimbursement of the expenses of emergency treatment, not previously authorized, in a private or public (or Federal) hospital not operated by the Department of Veterans Affairs, or of any emergency treatment not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) will be paid on the basis of a claim timely filed, under the following circumstances: (a) For veterans with service connected disabilities. Emergency treatment not previously authorized was rendered to a veteran in need of such emergency treatment: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities 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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); or (4) For any illness, injury or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.47(i)(2); (b) In a medical emergency. Emergency treatment not previously authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was rendered in 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. This standard is met by 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. And, (c) When Federal facilities are unavailable. VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA 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(a) (West 2002); 38 C.F.R. § 17.120 (2012). VA only has the authority to make payments for reimbursements of unauthorized medical treatment when the expense was incurred for an emergency as defined by applicable law. Fritz v. Nicholson, 20 Vet. App. 507 (2006) (Congress has authorized the Secretary to reimburse veterans for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. § 1728 and 38 U.S.C. § 1725). Although a claimant may be eligible for VA hospital care under 38 U.S.C.A. § 1710, there are no provisions under that section to allow for reimbursement of medical expenses incurred at a non-VA facility. Zimick v. West, 11 Vet. App. 45, 50 (1998). Payments from the Federal Treasury must be authorized by statute, and government employees may not make obligations beyond the scope authorized by statute. Smith v. Derwinski, 2 Vet. App. 378 (1992). At the time of his June 25, 2009, treatment the Veteran had established service connection for depressive disorder (70 percent), status post radical mastoidectomy secondary to cholesteatoma of the left ear with persistent vertigo, tinnitus, and deafness (60 percent), varicocele of the right testicle (10 percent), damage to right ilioinguinal nerve (10 percent), left facial palsy (10 percent), residuals of a left wrist ganglion excision (0 percent), and residuals of a right wrist ganglion excision (0 percent). A total disability rating based upon individual unemployability due to service-connected disabilities was assigned, effective from November 28, 2000. A June 25, 2009, report from the Emergency Department of the St. Andrews Hospital noted the Veteran complained of headache and reported a history of a headache that started three days earlier that had been persistent and felt like a typical headache. It was not associated with any vision problems, hearing problems, or anything to suggest a stroke. Upon physical examination, the Veteran appeared to be in mild distress. The diagnosis was headache. The examiner noted the Veteran was given Toradol and that he stated he was certain that worked and he asked if he could leave because did not want to detain his sister who had provided him a ride. He was informed that he could leave, but that he may have to come back if there was not an adequate response to the medication. In his August 2009 notice of disagreement the Veteran reported that the reason for his treatment on June 25, 2009, was due to a massive migraine headache that was so disabling he was unable to drive to the Togus VA medical facility. He stated that had it not been for his sister-in-law he would have called an ambulance. A September 2009 VA medical opinion agreed with the decision that the services provided on June 25, 2009, were non-emergent or that services were available at VA facilities. It was further noted that the Veteran's family could have taken him to Togus. In his September 2009 substantive appeal, the Veteran stated his headache had reach a debilitating level and that his sister-in-law was not able to drive him to Togus because she was babysitting her granddaughter and had to pick up her daughter from work. In a statement received by VA in February 2010, D.B. stated that she had driven the Veteran to the local emergency room for treatment for a recurring massive and acute headache. She stated that because of the intense pain the Veteran had and because she was caring for her granddaughter, driving to Togus was not an option. The Veteran reiterated his claim at the May 2010 hearing. He stated that he experienced daily headaches and that severe headaches like the one he experienced in June 2009 went from mild to excruciating. He stated he had been nauseous and unable to think well. He reported he had a driving restriction because of his medications and it was even more unsafe for him to drive when his headaches were that severe. He stated that his spouse did not drive and that when he had to drive to Togus for very severe migraine headache treatment, he had to ask a relative to leave work and lose pay to drive him there. He also reported that on June 25, 2009, his sister-in-law had been babysitting her granddaughter who he believed had a bronchial infection at the time. Based upon the evidence of record, the Board finds the non-VA medical treatment the Veteran received on June 25, 2009, was not authorized by VA and was not rendered in a medical emergency. The medical event is not shown to have been of such a nature that delay would have been hazardous to life or health and VA medical facilities are shown to have been feasibly available. The medical event is also shown not to have been 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 nor was the medical event of such a nature 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. The September 2009 VA medical opinion is found to be persuasive. The Board notes that the September 2009 VA medical opinion is consistent with the report of the private examiner on June 25, 2009, that the Veteran appeared to be in mild distress. The Board further finds that the June 25, 2009, report overall is not indicative of a medical event 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. In fact, the history provided noted that the Veteran stated it felt like a typical headache. The Veteran's action in requesting that he be allowed to leave before it was known if there would be an adequate response to the medication because he did not want to detain his sister-in-law is not indicative of action a prudent person would take in a medical emergency. In addition, the Veteran stated that the symptoms had been present for three days. In determining whether evidence submitted by a Veteran is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995); Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir.2006) (VA can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341 (1999) (Board can consider appellant's own personal interest in the outcome of the case). The Board finds that based upon the overall evidence of record that the Veteran's statements as to having experienced a headache that required emergency treatment is not consistent with the evidence of record. His contention that he had an emergent condition is outweighed by the evidence of the treatment and the September 2009 VA opinion on review of the evidence. The Board also notes that the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 are not applicable. There is no apparent dispute that VA facilities were feasibly available. While the VA Medical Center was 36 miles away, that was not overly distant if a true emergency existed. As the Veteran does not meet all the criteria for VA payment or reimbursement, his appeal must be denied. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to payment or reimbursement of medical expenses for emergency services at Saint Andrews Hospital on June 25, 2009, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs