Citation Nr: 1325293 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-17 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Albany, New York THE ISSUE Entitlement to reimbursement for private medical expenses incurred from August 6 to August 14, 2009. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from August 1964 to July 1967. This appeal comes before the Board of Veterans' Appeals (Board) from decisions of November 2009 by the Department of Veterans Affairs (VA) Medical Center in Albany, New York. A hearing before the undersigned was held at the RO in Buffalo, New York. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran was not receiving care for a service-connected disability or a condition associated with and aggravating a service-connected disability, was not in receipt of a total disability rating, and was not participating in a rehabilitation program. 2. The Veteran could have been safely transferred to a VA or other Federal facility as of August 6, 2009. CONCLUSION OF LAW The criteria for reimbursement of private medical expenses incurred from August 6, 2009, to August 14, 2009, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2009); 38 C.F.R. §§ 17.54, 17.120, 17.121 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA must assist a claimant at the time that he or she files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). There is no indication in these provisions, however, that Congress intended to revise the unique, specific claim provisions of 38 U.S.C. Chapter 17. 38 C.F.R. §§ 17.123-17.132; Barger v. Principi, 16 Vet. App. 132 (2002). The provisions of Chapter 17 of 38 U.S.C.A., 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 payment or reimbursement of unauthorized medical expenses. A Veteran 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." 38 C.F.R. § 17.124 (2012). When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17 of Chapter 38. 38 C.F.R. § 17.132 (2011). The November 2009 decision advised the Veteran of the criteria necessary to obtain medical reimbursement, notified the Veteran of his appellate rights, explained to the Veteran the basis for denial of the claim, and afforded him the opportunity to present information and evidence in support of the claim. There is no indication that any additional notice or development would aid the Veteran in substantiating his claim. The pertinent facts are not in dispute, additional efforts to assist or notify the Veteran in accordance with the VA's duties to notify would serve no useful purpose, and any deficiency of notice or of the duty to assist constitutes harmless error. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Reimbursement of Medical Expenses On August 3, 2009, the Veteran presented for emergency treatment where he was found to have sustained a cerebrovascular accident with left hemiparesis and acute myocardial infarction. The Veteran was admitted for treatment to the intensive care unit. "After medical stabilization, [the Veteran] was referred to . . . rehabilitation unit . . . and was admitted as of August 6, 2009." The medical expenses associated with the emergency and intensive care unit treatment, i.e. those incurred prior to August 6, 2009, have been reimbursed. The Veteran is seeking reimbursement for the expenses associated with the rehabilitative treatment provided from August 6, 2009. In claims involving payment/reimbursement by VA for medical expenses incurred for treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54; see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The Veteran does not claim that he had (or sought) prior authorization from VA for the rehabilitative treatment at issue, nor is there any indication in the record of any such authorization. It is not in dispute that the private medical treatment at issue was not authorized in advance by VA. When a Veteran receives treatment at a non-VA facility without prior authorization, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment; 38 U.S.C.A. §§ 1725 and 1728. VA has amended these regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. Unless otherwise noted, the Board considered the regulations applicable to claims filed in 2009. 38 U.S.C.A. § 1728 authorizes payment or reimbursement for qualifying emergency services provided for (a) service-connected conditions; (b) nonservice-connected conditions associated with and aggravating a service-connected disability; (c) any disability if the veteran has a service-connected disability that has been determined to result in total disability that is permanent in nature; or (d) any illness, injury, or dental condition of a veteran who is a participant of a vocational rehabilitation program that is determined to be medically necessary to make possible the veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. The Veteran was not in receipt of a permanent and total disability rating or a participant of vocational rehabilitation at the time of the private treatment, and the treatment was not provided in conjunction with the service-connected hearing loss or a non-service connected disability which is associated with and aggravating the service-connected hearing loss. As such, reimbursement is not available under 38 U.S.C.A. § 1728. Zimick v. West, 11 Vet App. 45, 49 (1998) (All requirements of 38 U.S.C.A. § 1728 must be met before payment may be authorized). 38 U.S.C.A. § 1725 authorizes payment or reimbursement for qualifying emergency services provided for nonservice-connected conditions in non-VA facilities. A veteran may be eligible for reimbursement under 38 U.S.C.A. § 1725 for medical care beyond the initial emergency evaluation and treatment, such as in this case, provided that the medical care was for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized). VA denied reimbursement for this period because the care was found to be nonemergent as of August 6, 2009. The Veteran contends that he was unable to refuse the transfer to the rehabilitative unit on August 6, 2009, because he was incapacitated and unable to care for himself at that time. He has reported that he informed the private hospital that he did not have any medical insurance and that VA was his only source of medical care. The Veteran has indicated that he had notified his private physicians of the need to be transferred to VA and that he thought that he had been approved for private care because he was not transferred. The Board acknowledges that the treatment records associated with the Veteran's admission to the rehabilitation unit indicate that the Veteran required minimal to moderate assistance for mobility and personal hygiene at the time of admission. Even assuming the Veteran could not be safely discharged as of August 6, 2009, however, there is no indication that the Veteran could not have been safely transferred to a federal facility as of August 6, 2009; again, the records indicate that the Veteran was stable as of that date. Whether a patient had stabilized is inherently a medical question. Stabilization requires an assessment of the patient's physical condition, likelihood of deterioration, capacity of particular interventions to maintain the patient's physical condition and the like. Many of these considerations can only be properly evaluated by a medical professional. The Veteran is not a medical professional and has not established any expertise in the field. The Board concludes that the Veteran is a lay witness and, although his statements regarding the facts of what occurred to him have been considered, his statements are not competent on this critical question. The Board finds that the preponderance of the evidence is against the Veteran's claim: the evidence clearly indicates that the Veteran was stable as of August 6, 2009. Although the Board is sympathetic to the Veteran's situation, the law does not provide for equitable relief in this situation. Reimbursements for unauthorized medical expenses cover only specific factual scenarios, which are restricted to emergency services. The Board has no authority to disregard these requirements. As such, the Board is compelled to conclude that the Veteran's lack of help at home is not relevant to the outcome of the case and that there was not a "continued medical emergency" as of August 6, 2009. Consequently, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Reimbursement for private medical expenses incurred from August 6 to August 14, 2009, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs