Citation Nr: 1320810 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 12-30 714A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses by the Department of Veterans Affairs (VA) for the cost of non-VA medical treatment at a private medical facility on April 25, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1948 to February 1952. This matter is on appeal from a September 2012 determination by the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida, which granted coverage of medical expenses at Citrus Memorial Health System from April 21, 2012 to April 23, 2012. In November 2012, the Gainesville, Florida VAMC extended payment for medical expenses incurred at the Citrus Memorial Health System to April 24, 2012. Therefore, the Veteran's appeal for payment or reimbursement of medical expenses at the Citrus Memorial Health System only concerns April 25, 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Between April 21, 2012 and April 25, 2012, the Veteran received emergency medical services at Citrus Memorial Health System, a non-VA medical facility. 2. At the time the emergency medical services were provided, the Veteran had a total disability, permanent in nature, resulting from service-connected disabilities. 3. The medical care that the Veteran received on April 25, 2012, was not preauthorized by VA. 4. The emergency medical services provided at Citrus Memorial Health System were of such a nature that a reasonably prudent person would expect that delay in seeking immediate medical attention would be hazardous to life or health. 5. On April 21, 2012, the Gainesville, Florida VAMC was not feasibly available and an attempt to use it beforehand would have been hazardous to life or health. 6. The Veteran was not stabilized until April 25, 2012, the date of discharge from the Citrus Memorial Health System. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for payment or reimbursement of unauthorized medical treatment incurred at a private medical facility on April 25, 2012, have been met. 38 U.S.C.A. §§ 1728, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.54, 17.120-132 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify & Assist VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Medical Payment or Reimbursement The Veteran seeks payment or reimbursement for the medical care that he received at Citrus Memorial Health System on April 25, 2012. At the time of his treatment, the Veteran was service connected for stress urinary incontinence, evaluated as 60 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; depression disorder secondary to chronic neck and back pain, evaluated as 30 percent disabling; degenerative disc disease of the cervical spine, evaluated as 20 percent disabling; and fecal incontinence, evaluated as 10 percent disabling. He was also in receipt of a total rating based on individual employability due to service-connected disabilities (TDIU) permanent in nature. Under 38 U.S.C.A. § 1728, reimbursement of certain medical expenses is available only where emergency treatment not previously authorized was rendered and requires satisfaction of all of the following: (a) to a veteran in need of such emergency treatment for: (1) an adjudicated service-connected disability, (2) a non-service-connected disability associated with and held to be aggravating a service-connected disability, (3) any disability of a veteran who has a total disability permanent in nature from a service-connected disability, or (4) any illness, injury, or dental condition in the case of a veteran who is participating in a vocational 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 38 C.F.R. § 17.28(j); and (b) 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) 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. §§ 1725(f)(1)(B), 1728(a); 38 C.F.R. § 17.120 as amended in 76 Fed. Reg. 70, 067-71. Given the use by Congress of the conjunctive "and" in the statute, "all three statutory requirements would have to be met before reimbursement could be authorized." Malone v. Gober, 10 Vet. App. 539, 542 (1997) citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993). Regarding the emergency private services at issue, pertinent records show that on April 21, 2012, the Veteran was admitted to the emergency room of the Citrus Memorial Health System with complaints of abdominal pain. A CT scan of the Veteran's abdomen and pelvis was done, which showed acute appendicitis with perforation, small abscess measuring 2.6 to 2.0 centimeters. The Veteran underwent a laparoscopic appendectomy and a Jackson-Pratt drain was utilized. Postoperatively, the Veteran had issues with nausea, mild ileus, was on a liquid diet, prescribed three different types of antibiotics and provided pain medication. Based on a review of the evidence, the Board concludes that payment or reimbursement of unauthorized medical expenses incurred at the Citrus Memorial Health System on April 25, 2012, is warranted because all the criteria for medical reimbursement have been met. The Board will address whether the treatment was preauthorized. With regard to prior authorization, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a). In this case, the evidence fails to show that the treatment provided to the Veteran on April 25, 2012, was preauthorized. Indeed, the Veteran has not contended that he sought authorization from VA prior to seeking treatment at the Citrus Memorial Health System. Furthermore, the Veteran did not receive care in a situation which would permit fee-basis care under 38 U.S.C.A. § 1703(a)(3) and 38 C.F.R. § 17.52(a)(3). Although the Board has concluded that the treatment was not preauthorized by VA, the Board will now discuss why the criteria for the reimbursement of costs for unauthorized emergency medical treatment under 38 U.S.C.A. § 1728 have been met. As discussed above, at the time of the emergency treatment at issue on April 25, 2012, the Veteran was in receipt of a TDIU. See 38 U.S.C.A., Chapter 35. Thus, as the emergency treatment was provided for a disability of a veteran with a total disability permanent in nature, the Board concludes that this claim falls under the provisions of 38 C.F.R. § 1728. The second and third criterion have also been met as the private treatment on April 25, 2012 was rendered in a medical emergency 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 and VA or other federal facilities were not feasibly available. The Board observes that "feasibly available" is not defined in the relevant statutes or regulation. See 38 U.S.C.A. §§ 1725, 1728; 38 C.F.R. § 17.120. However, the provisions of 38 C.F.R. § 17.53, also for application, state that 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, 17.53. In this case, the Veteran was admitted to the Citrus Memorial Health System on April 21, 2012, with a ruptured appendix that required an immediate operation. The closest VA hospital facility to the Veteran was in Gainesville, Florida, and the Veteran stated that there was no way he could have made it to Gainesville on April 21, 2012, in his medical condition. See Veteran's Notice of Disagreement, September 2012. The medical records show that the Veteran had been experiencing abdominal pain for three days prior to his admission on April 21, 2012 and that he had pain of a 10/10 in intensity. See Citrus Memorial Health System, History and Physical, April 21, 2012. The Board finds the Veteran to be credible. Additionally, on April 25, 2012, a VA facility was not "feasibly available" for the Veteran's transfer as it was not advisable to transfer the Veteran on the day he was being discharged from Citrus Memorial Health System. Additionally, the Gainesville, Florida VAMC previously conceded the emergency nature of the Veteran's treatment and unavailability of VA or other federal facilities by covering his medical expenses at the Citrus Memorial Health System from April 21, 2012 to April 24, 2012. However, the Veteran's claim for payment or reimbursement of medical expenses on April 25, 2012 was denied as the Gainesville, Florida VAMC found the Veteran was stabilized and could have safely transferred to a VA facility. See Statement of the Case, November 2012. Under 38 C.F.R. § 17.121, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, the Veteran who received emergency treatment could have been transferred from the non-VA facility to a VA medical center for continuation of treatment. The Board is cognizant that the Gainesville VAMC reviewed the file and concluded that the Veteran was stable enough to be transferred to a VA facility on April 24, 2012. The Gainesville VAMC stated that on April 24, 2012, the medical records showed the Veteran was afebrile, his vital signs were stable, he was feeling better and was hungry. See Statement of the Case, November 2012. However, the Board must also highlight the equally probative statements of the private physicians who treated the Veteran at Citrus Memorial Health System from April 21, 2012 to April 25, 2012. The Veteran was 81 years old and service connected for various health conditions when he was admitted to the Citrus Memorial Health System on April 21, 2012. The Veteran was found to have a ruptured appendix and on April 21, 2012, a laparoscopic appendectomy was performed. For the first few days after surgery, the Veteran had issues with nausea and ileus. He was also on a liquid diet with three separate antibiotics being administered, pain medication and had a Jackson-Pratt drain in his incision. On April 24, 2012, the Veteran's treating physician found that although the Veteran was feeling better, he was still on three different antibiotics, required pain medication and had the drain in his incision; therefore, only if the Veteran continued to progress, would he be cleared to be discharged on April 25, 2012. It is apparent that the treating physician did not find the Veteran stabilized on April 24, 2012 as it was necessary to continue closely monitoring his condition and not discharge him on that day. The following day, the treating physician found the Veteran continued to do well, was tolerating a diet and his pain was controlled on oral pain medications. As a result of the Veteran's improved condition, the physician stopped his antibiotics, had his drain removed, and ordered that he could be discharged. Under these circumstances, the Board concludes that the evidence of record on the question of when the Veteran's medical emergency ended and he could have been transferred to the nearest VA hospital is equally balanced. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the BVA to assess the credibility and weight to be given to the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192- 93 (1992)). In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered the Veteran assertions that he was not stable enough to undergo a transfer to a VA hospital on April 24, 2012 and the economic inadvisability of transferring the Veteran to a VA facility on the day he was being discharged from the private hospital. As the statements from the Veteran are consistent with evidence submitted on his behalf, the Board finds those assertions to be credible in this respect. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may properly consider internal inconsistency of statements, facial plausibility, and consistency with other evidence). Based on the foregoing discussion, the Board finds that the evidence is at least in equipoise, and that payment or reimbursement of medical expenses incurred at Citrus Memorial Health System on April 25, 2012, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to reimbursement of medical expenses by VA for the cost of non-VA medical treatment at a private medical facility on April 25, 2012, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs