Citation Nr: 1325510 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-21 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private ambulance transportation on May 19, 2006. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 determination by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Oklahoma City, Oklahoma. In February 2009, the Board remanded this matter to the AMC/RO to obtain a completed VA Form 646 (Statement of Accredited Representation in Appealed Case), or equivalent, from the Veteran's representative prior to recertifying the appeal to the Board. The representative was also offered the opportunity to review the claims folder. The case was then returned to the Board for further appellate consideration. The Board has reviewed the Veteran's Consolidated Health Record (CHR) file, his physical claims file, and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. FINDINGS OF FACT 1. Unauthorized private ambulance transportation was provided to the Veteran on May 19, 2006. 2. Service connection is not in effect for any disability. 3. Because the Veteran has not established entitlement to service connection for any disability; he is only eligible for reimbursement of private medical expenses under the Veterans Millennium Health Care and Benefits Act. 4. The most credible and probative evidence of record does not demonstrate that on May 19, 2006, the Veteran experienced 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. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized ground ambulance transport services by Wellston Ambulance Service on May 19, 2006, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). However, the United States Court of Appeals for Veterans Claims (Court) ruled in Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive. Further, in Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court held that the provisions of the VCAA are not applicable to statutes and regulations, which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for unauthorized medical expenses under 38 U.S.C.A. §1725, the provisions of the VCAA are not applicable. The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R 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 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." When a claim for 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. VA complied with these provisions in this case. Consequently, the duty to notify and assist has been met. Law and Analysis The Veteran seeks payment or reimbursement for the costs of private ambulance transportation provided by Wellston Ambulance Service on May 19, 2006. It is neither contended, nor suggested by the record, that he had any prior authorization from VA to receive the medical service he was provided on that date. 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 contract with non-VA facilities for care in accordance with the provisions of this section. When demand is only for infrequent use, individual authorizations may be used. Care in public or private facilities will only be authorized, whether under a contract or an individual authorization, for medical services for the treatment of any disability of a veteran who has a service-connected disability rated at 50 percent or more. 38 U.S.C.A. § 1703; 38 C.F.R. § 17.52(a)(2). The admission of a veteran to a non-VA facility at VA expense must be authorized in advance. In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph or other communication, made by the veteran, or by others in his or her behalf, is dispatched to VA within 72 hours after the hour of admission. When an application for admission by a veteran has been made more than 72 hours after admission, authorization for continued care at VA expense shall be effective as of the postmark, or dispatch date of the application, or the date of any telephone call constituting an informal application. See 38 C.F.R. § 17.54. Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725 (West 2002). Effective January 20, 2012, VA amended its 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. The purpose of the amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. The amendments include making the definition of "emergency treatment" in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the "prudent layperson" standard. Under 38 U.S.C.A. § 1728 to be entitled to payment or reimbursement of medical expenses for treatment not previously authorized at a non-VA facility, a claimant must satisfy the following three conditions: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, 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. § 17.47(i)(2); 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 were not feasibly 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; 38 C.F.R. § 17.120 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79070 (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." Zimick v. West, 11 Vet. App. 45, 49 (1998); 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). In this case service connection is not in effect for any disability. Because the Veteran does not meet all three requirements under 38 U.S.C.A. § 1728, these provisions are not applicable. The Board need not go into whether the Veteran meets any of the other criteria, as the failure to meet one of them precludes payment. In considering every possible theory of entitlement, the Board has considered whether reimbursement is warranted under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002. To be eligible for reimbursement under this authority, the Veteran 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 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 beforehand 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); (d) 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. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The veteran is financially liable to the provider of emergency treatment for that treatment; (f) 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); (g) 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 veteran 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, (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002 (as amended, effective January 20, 2012, at 76 Fed. Reg. 79071 (Dec. 21, 2011); 77 Fed. Reg. 23617 (Apr. 20, 2012)). The Veteran asserts that on May 19, 2006, he had to make the trip from his home in Carney, Oklahoma to the VA hospital in Oklahoma City after becoming ill. He contends that on the day in question he had been working outdoors in the heat spraying pesticides when he became light-headed, developed chills, and began vomiting. He argues that in light of his cardiac history he thought his symptoms indicated that he was either having a stroke or heart attack. He further argues that these symptoms, along with the advice of his pastor and local police chief, are the reasons that he sought non-VA emergency medical transportation. He believes, therefore, that the VA should reimburse him for the care he received. See Informal Claim received in December 2006 and Notice of Disagreement received in January 2007. Initially, the Board notes that the urgent care records from the Oklahoma VAMC do not indicate that the Veteran thought he was having a stroke or heart attack given his history of heart attacks. Rather these records show that on May 19, 2006, shortly before 8:00 pm, he presented with a chief complaint of fever, chills, and shortness of breath after spraying pesticides in the yard all day. On admission, he was alert and oriented times three. His temperature was 102.1, pulse was 120, respirations were 18, and blood pressure was 126/82. His current pain level was 0/10. The Veteran's history of recent coronary artery disease status post coronary artery bypass surgery was noted. The Veteran denied any chest pain. The clinical assessment was acute bronchitis. A review of the respiratory, cardiovascular, and neurological systems was completely negative. The evaluation also included a radiology report that was negative for any acute cardiac abnormality. There was no indication that the Veteran's symptoms had progressively worsened during his time in the emergency room and nebulizer treatment with albuterol and atrovent was rendered. At 1:49 am (about five hours after his admission) he was discharged home. Curiously other VA treatment records show that earlier that day the Veteran had presented to the same VA facility for treatment of a staph infection. See VA Primary Care Noted dated May 19, 2006. In December 2006, a staff physician at the Oklahoma City VAMC determined that the Veteran did not qualify for payment for the private ambulance transport provided on May 19, 2006 because the travel by ambulance was not medically required due to the nature of the emergency. In January 2007, the Veteran was informed that payment would not be made for the ambulance transportation provided on May 19, 2006 because the travel by ambulance to the VAMC was not medically required, was not authorized in advance, and was not in connection with a medical emergency of such nature that the delay in obtaining authorization would have been hazardous to the person's life or health. Along with his Notice of Disagreement, the Veteran submitted lay statements from the Carney Chief of Fire and Police and his pastor attesting to the Veteran's symptoms on May 19, 2006. They both noted that the Veteran had difficulty breathing and determined that he needed immediate medical attention. There was also concern about the Veteran's history of heart condition and that he had been outdoors spraying pesticides. It was noted that a Carney EMT (emergency medical technician) had arrived and the consensus was to call the Wellston Ambulance to transport the Veteran to the VAMC in Oklahoma City. Also of record are the results of an internet search conducted on www.symsys.com which reveals that the distance between the Veteran's home in Carney, Oklahoma and the VAMC in Oklahoma City was estimated at 36.6 miles. See Mileage Calculator Results. After reviewing this additional evidence, a subsequent reconsideration of the claim in April 2007, by the Chief of the Medical Administration Services (MAS) concurred with the original decision. In his substantive appeal, the Veteran continued to assert his belief that his symptoms of chills and vomiting were due to a heat stroke. He reiterated that the local police chief thought his symptoms were due to the pesticide spray and called for the ambulance because of his past history of heart attacks. See VA Form 9 received in May 2007. Unfortunately, based on a review of the record, the evidence does not establish that the unauthorized private ambulance transport the Veteran received on May 19, 2006 was for a medical emergency. This was the determination made by VAMC physicians, including the Chief of the MAS, and such opinion is supported by the VA urgent care records. The Veteran argues that he simply had no way of knowing if he was having a heart attack, heat stroke, or pesticide poisoning and went to the emergency room as he was concerned that he was having a life-threatening event. While he is competent to report experiencing fever, chills, and shortness of breath (see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis)), the Board finds his argument less than credible. The Veteran's stated concern about a stroke or heart attack is not indicated in the VA records generated at the time of treatment. Rather, he conveyed that he had been spraying pesticides in the yard earlier in the day, suggesting some degree of insight into the cause of his symptoms. Although in this case it turned out that an actual emergency was not present, the appropriate standard requires consideration of whether, under the circumstances present at the time the Veteran sought private ambulance transportation, a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to health or life. See 38 C.F.R. §§ 17.120, 17.1002(b); Swinney v. Shinseki, 23 Vet. App. at 264. It is not essential that the later medical work-up confirm the presence of a medical emergency. Swinney at 264. The Veteran has consistently argued that his situation was a medical emergency, but the evidence reported on May 19, 2006 does not indicate that a prudent person would have thought that a life or health threatening emergency was present, or that the Veteran in fact thought so. In keeping with the non-emergent nature of the problem, the Veteran himself noted that he could have opted for a hospital nearby, in Shawnee, Stillwater, or Edmond, but "figured that [he] had better be taken directly to the VA for treatment." See January 2007 Notice of Disagreement. At this point, the Board takes judicial notice that information regarding the locations of other hospitals within the vicinity of Carney Oklahoma is readily available on the internet. See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute). See also Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995) (judicial notice of laws). For example, an internet search for hospitals in or nearest to Carney, Oklahoma produces the website ushospitalfinder.com which shows several hospitals that are closer to the Veteran's home. An additional search shows that Stillwater Medical Center is about 25 miles from the Veteran's home and thus is significantly closer than the Oklahoma City VAMC. So while it appears that the Veteran could have gone to a nearby hospital, he, and most importantly the EMT- a medical professional, determined that his condition did not preclude a 36 mile ambulance ride to the Oklahoma City VAMC. In other words, it was not considered unreasonable or unwise for the Veteran to endure the longer and more time consuming drive in order to receive treatment. The Board finds the fact that the Veteran bypassed the nearest open medical facility in favor of the VA facility much farther away is not the act of a prudent layperson concerned about a delay in seeking immediate medical attention because of risk to life or health. Exigency is not demonstrated. Instead this action supports the conclusion that the Veteran, as well as the police chief, the pastor, and the EMT themselves, did not actually believe that there was a medical emergency. The Board understands the Veteran's belief that his symptoms on May 19, 2006 required immediate medical attention and does not wish to minimize it. However medically necessary treatment is not the same as a medical emergency. Based on his complaints that day and the ultimate decision to delay treatment by traveling a greater distance to receive such treatment, the Board finds that the Veteran's situation was not a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would be hazardous to life or health. See 38 U.S.C.A. §§ 1725(f)(1)(B), 1728(c). As the Veteran does not satisfy at least one of the requisite criterion set forth above, and thus reimbursement under the provisions of 38 U.S.C.A. § 1725 & 38 C.F.R. § 17.1002 cannot be granted. The Board recognizes that there are financial difficulties that arise from unexpected medical expenses. Here Board sympathizes with the Veteran's situation and the particular circumstances therein, but is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "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)). Accordingly, the Board must conclude that the preponderance of the evidence is against this claim, and it must be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private facility on May 19, 2006 is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs