Citation Nr: 1319750	
Decision Date: 06/19/13    Archive Date: 06/27/13

DOCKET NO.  09-43 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Jackson, Mississippi


THE ISSUE

Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at Our Lady of the Lake Regional Medical Center on November 4, 2007. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel





INTRODUCTION

The Veteran served on active duty from August 1971 to June 1977. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating determination of the Jackson, Mississippi, VA Medical Center (VAMC).  

The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system.


FINDINGS OF FACT

1.  Service connection is not in effect for any disability for this Veteran, and he was not participating in a rehabilitation program under 38 U.S.C. Chapter 31 at the time of treatment.

2.  The Veteran's treatment on November 4, 2007 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 Our Lady of the Lake Regional Medical Center on November 4, 2007, 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 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 November 2007.  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 Our Lady of the Lake Regional Medical Center on November 4, 2007 not authorized in advance by VA. 

Reimbursement or payment for expenses not previously authorized may be made pursuant to 38 U.S.C.A. § 1728 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. 

On November 4, 2007, the Veteran was seen in the emergency room of Our Lady of the Lake Regional Medical Center for complaints of a headache and migraine which had lasted for the past three months and had recently worsened.  The November 2007 private treatment record from Our Lady of the Lake Regional Medical Center indicates that the Veteran had received treatment the previous day for headaches.  He reported a past medical history of hypertension, migraine headaches, diabetes mellitus, and appendectomy.  He complained of radiating neck pain, noise intolerance, light intolerance, chills, and nausea, but he denied vomiting, loss of consciousness, eye symptoms, or weakness.  His pain level was between 9 and 10 and was relieved by rest and light avoidance.  His mode of arrival was ambulatory, meaning that he walked into the emergency department on his own power.  He also reported that he was attempting to take preemptive action to prevent his headache from becoming a migraine.  

Upon examination, the examining physician, J.R., M.D., reported that the Veteran appeared in "mild distress" but indicated essentially normal physical findings otherwise.  He diagnosed the Veteran with migraine headache and prescribed Percocet for treatment.  He noted that the Veteran drove himself to the emergency department and had no other method for getting home.  The Veteran was discharged the same day in stable condition and was advised to follow up with the Earl K. Long Medical Center within three to five days and was counseled with regard to his diagnosis, treatment plan, and prescription.  

The Veteran does not meet any of the four elements of the first criteria listed above in 38 U.S.C.A. § 1728(a).  He is not service-connected for any disability, and as such his treatment at Our Lady of the Lake Regional Medical Center 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 of 38 C.F.R. § 17.1002 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).   

Based on the evidence of record, the Board finds that 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 headaches for which he sought treatment at Our Lady of the Lake Regional Medical Center were not 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.

The Board notes the Veteran's statements of record indicating that when he went to the emergency department at Our Lady of the Lake Regional Medical Center on November 4, 2007, he believed that his life was in jeopardy.  He also stated that he had an extreme migraine headache with projectile vomiting and severe dehydration which required intravenous fluids.  He was also unable to drive to the emergency department, and had a friend drive him there.

The Board finds that the probative value of the Veteran's statements are greatly outweighed by the objective and contemporaneous evidence of record which fails to show that delay in seeking immediate medical attention would have been hazardous to life or health.  Specifically, as discussed above, the Veteran was ambulatory upon admission to the emergency department.  Moreover, contrary to the Veteran's current statements of record, the November 4, 2007 treatment record from Our Lady of the Lake Regional Medical Center documents only complaints of a headache with no migraine or vomiting.  Further, the Veteran did not report loss of consciousness, eye symptoms, or weakness at that time.  The Board also notes that Dr. J.R. reported that the Veteran appeared in "mild distress" and indicated essentially normal physical findings upon examination.  There is no medical opinion of record to the contrary.  

The Veteran's statements to the physician in the course of treatment are further evidence of his state of mind at that time.  Particularly, he indicated at the time of treatment that he was trying to preempt a migraine.  This does not describe a situation in which a reasonable person feared that his life was in serious jeopardy.  As such, the competent and probative evidence of record indicates that the Veteran's headaches for which he sought treatment at Our Lady of the Lake Regional Medical Center, while painful, were not 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.  

Although the Board is sympathetic to the Veteran and his claim, in the absence of authorizing statutory or regulatory authority, the Board may not award payment or reimbursement of the private medical expenses at issue.  See Zimick v. West, 11 Vet. App. 45, 50 (1998) citing Office of Personal Management v. Richmond, 496 U.S. 414, 424 (1990) (payment of money from the [Federal] Treasury "must be authorized by a statute").  In the absence of evidence to establish that the Veteran meets the criteria for payment or reimbursement of non-VA medical services, payment or reimbursement of those services is not warranted.  Thus, the Veteran's claim must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at Our Lady of the Lake Regional Medical Center on November 4, 2007 is denied. 



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs