Citation Nr: 1326131 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-28 133 ) DATE ) ) On appeal from the Department of Veterans Affairs North Florida/South Georgia Veterans Health System THE ISSUE Entitlement to payment or reimbursement for medical care provided at Memorial Hospital in Jacksonville, Florida, on February 7, 2011. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to October 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision by the Department of Veterans Affairs (VA) North Florida/South Georgia Veterans Health System in Gainesville, Florida. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record does not show that the Veteran received authorization from VA prior to receiving the medical care provided at Memorial Hospital on February 7, 2011, or he or anyone acting on his behalf sought post-treatment authorization from VA within 72 hours of the medical care provided at Memorial Hospital on February 7, 2011, and authorization was given. 2. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Veteran at Memorial Hospital on February 7, 2011, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health. 3. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Veteran at Memorial Hospital on February 7, 2011, was for treatment of 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. CONCLUSION OF LAW The criteria for payment or reimbursement for medical care provided at Memorial Hospital on February 7, 2011, have not been met. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728, 5100, 5101, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002, 17.1003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). The VCAA, with its expanded duties, is not applicable to cases involving unauthorized medical expenses claims, as the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Barger v. Principi, 16 Vet. App. 132 (2002). Similarly, the statute at issue in this matter is not found in Chapter 51, but rather, in Chapter 17. However, in Beverly v. Nicholson, 19 Vet. App. 394, 403 -04 (2005), the United States Court of Appeals for Veterans Claims appeared to assume that the VCAA was applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. The provisions of Chapter 17 of the 38 U.S.C. 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 reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124 , the claimant 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 payment/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. In this case, the VA medical facility in question has explained the bases for denial of the claim, and afforded an opportunity to present information and evidence in support of the claim. There is no indication that notice or development would aid the appellant in substantiating the claim for reimbursement. 38 U.S.C.A. §§ 5103, 5103A (West 2002). Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that 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 claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (discussing how remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. On the morning of Monday, February 7, 2011, the Veteran presented at the emergency room at Memorial Hospital in Jacksonville, Florida. He arrived by private vehicle with his spouse and was seen by a physician at 8:13am. His chief complaints were vomiting and diarrhea, which had started the previous day and were still present. They had a gradual onset and had been constant. The Veteran also reported nausea and abdominal pain, and the illness was described as "moderate" in nature. Upon objective examination, there was no fever, muscle aches, urination difficulty, headaches, dizziness, sore throat, cough, breathing difficulty, chest pain, back pain, or fainting episodes. All systems were otherwise negative, other than the symptoms reported by the Veteran. The Veteran was in no acute distress and no apparent distress, and did not appear to be anxious, in pain, or lethargic. His heart was normal in rate and rhythm, and his breathing was also normal. Fluids were administered intravenously for one hour or less. Laboratory tests were conducted at 9:00 am, and the Veteran was in no pain and was no longer vomiting by 10:03 am. The clinical impression was vomiting, diarrhea, and acute generalized abdominal pain. The Veteran's condition was deemed to be good and stable, and he was discharged with instructions not to go to work for the remainder of that day, and to drink clear liquids only. He was prescribed Zofran 4mg and instructed to take one orally every 6 hours as needed for nausea and vomiting. In his August 2011 notice of disagreement, the Veteran explained that he had been experiencing severe vomiting and diarrhea for over 24 hours and also had a fever with dizziness. As a result, he contacted the after-hours VA hotline in the early morning of Monday, February 7, 2011, and was instructed to go to an emergency room for treatment. As such, he went to the nearest emergency room for treatment, which was at Memorial Hospital in Jacksonville, Florida. In the September 2011 statement of the case, the agency of original jurisdiction denied the Veteran's claim for reimbursement, emphasizing that he had been symptomatic for two days prior to seeking treatment at the Memorial Hospital emergency room. In response, in his September 2011 substantive appeal, the Veteran alleged that he had been experiencing symptoms for no more than 12 to 14 hours prior to going to the emergency room. He indicated that he did not experience stomach discomfort until 1:00 am on the morning of Monday, February 7, 2011, at which time he experienced his first symptoms of diarrhea and vomiting, which reoccurred several times in the next few hours. He felt at that time that he had food poisoning; however, he indicated that he was scheduled to be at work at 8:00 am and still intended to go. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances. 38 U.S.C.A. § 1703(a) (1)-(8); 38 C.F.R. § 17.52. However, there is no allegation in this case that VA contracted with Memorial Hospital for the Veteran's medical treatment. Moreover, a claim for payment or reimbursement of services not previously authorized may be filed by the Veteran who received the services (or his/her guardian) or by the hospital, clinic, or community resource which provided the services, or by a person other than the Veteran who paid for the services. 38 C.F.R. § 17.123 (2012). In this case, the claim for payment or reimbursement has been brought by the Veteran. Section 17.120 of Chapter 38 of the Code of Federal Regulations provides 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 the Department of Veterans Affairs, 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; (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 C.F.R. § 17.120; see also 38 U.S.C.A. § 1728(a) (1)-(3). All three statutory requirements must be met before reimbursement can be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 547 (1997). At the time of the medical services in question, the Veteran was service-connected for degenerative arthritis of the lumbosacral spine, rated as 40 percent disabling, bronchial asthma, rated as 30 percent disabling, and a surgical scar status post discectomy, rated as 10 percent disabling. His combined evaluation for compensation was 60 percent. There is no evidence that the Veteran was rated as permanently and totally disabled due to service-connected disorders, or was participating in a rehabilitation program at the time of his care in February 2011. Accordingly, criterion (a) is not satisfied, and there is no basis to establish entitlement to reimbursement under 38 U.S.C.A. § 1728; see also 38 C.F.R. § 17.120. However, payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003. To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: (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) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is 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); (e) 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; (f) The Veteran is financially liable to the provider of emergency treatment for that treatment; (g) 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); (h) 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; (i) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002. Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. Again, these criteria are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). An emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994). The Board notes that 38 C.F.R. § 17.1002, one of the regulations implementing the Veterans Millennium Health Care and Benefits Act, also defines emergency services. Under such provision, emergency services exist where treatment is for a condition of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health, and indicates that this standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent lay person who possesses an average knowledge of health and medicine would 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. 38 C.F.R. § 17.1002(b). The regulations do not require that a veteran's treatment actually be proven emergent, from a purely medical standpoint, in order to qualify for payment or reimbursement under 38 U.S.C.A. § 1725. Rather, it need only be demonstrated that the evaluation and treatment were for a condition of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. A medical emergency lasts "only until the time the veteran becomes stabilized." 38 C.F.R. § 17.1002(d). The term stabilized means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility." 38 C.F.R. § 17.1001(d). Effective from October 10, 2008, the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123, made mandatory as opposed to discretionary the reimbursement of the reasonable value of emergency treatment of an eligible veteran furnished by a non-VA facility, if all of the pertinent criteria are otherwise satisfied. Additionally, this amendment added a provision which essentially expanded the meaning of "emergency treatment" to include treatment rendered (1) until such time as the veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer; or (2) until such time as a Department facility or other Federal facility accepts such transfer if: (A) at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (B) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. (The regulatory amendments implementing these changes were made final on December 21, 2011, and are effective as of January 20, 2012. See Payment or Reimbursement for Emergency Treatment Furnished by Non-VA Providers in Non-VA Facilities to Certain Veterans with Service-Connected or Nonservice-Connected Disabilities, 76 Fed. Reg. 79067 (Dec. 21, 2011).) Effective from February 1, 2010, pursuant to the Expansion of Veteran Eligibility for Reimbursement Act, Pub. L. No. 111-137, 123 Stat. 3495 (2010) (codified as amended at 38 U.S.C.A. § 1725 ), the provisions of § 1725(b)(3)(C) pertaining to contractual or legal recourse against a third party were modified so as to allow for reimbursement in situations where a portion of the cost of the care is covered. These amendments are effective, and apply with respect to emergency treatment furnished on or after February 1, 2010, except where it is determined "under the circumstances applicable to the veteran, that it is appropriate to" apply the amendments to treatment received prior to the date of the Act's enactment. Pub. L. No. 111-137, § 1(c)(2), 123 Stat. 3495, 3496. Regulatory amendments were made in 2012. Prior to the 2012 regulatory amendments, payment or reimbursement for emergency treatment could be made only for the period from the beginning of the initial evaluation treatment until such time as a person could be safely discharged or transferred to a VA facility or other Federal facility. The 2012 amendments removed the following requirement: The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is 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). Thus, beginning with the 2012 regulatory amendments, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. 76 Fed. Reg. 79,067, 79071 (Dec. 21, 2011) (codified at 38 C.F.R. § 17.1005(b)(1),(2)). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency treatment, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or other Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress notes, discharge summary, or other applicable medical record. 76 Fed. Reg. at 79071 (codified at 38 C.F.R. § 17.1005(c)(1), (2)). If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 76 Fed. Reg. at 79072 (codified at 38 C.F.R. § 17.1005(d)). Further regulatory changes were made effective as of May 21, 2012, to 17.1001-1005. See 77 Fed. Reg. 23617 (Apr. 20, 2012). Those changes were made for conformity with statutory changes expanding veterans' eligibility for reimbursement, including retroactive payment or reimbursement for emergency treatment received on and after July 19, 2001, and payment limitations where an eligible veteran has contractual or legal recourse against a third party that would only partially extinguish a veteran's liability to the emergency treatment provider. Here, with respect to whether a prudent layperson would have reasonably expected that a delay in seeking medical attention would be hazardous, the Board notes that the February 7, 2011, treatment record from Memorial Hospital reveals that the Veteran was treated in the emergency room for no more than two hours, at which time he was discharged after his condition was deemed to be good and stable. It was also opined by the examiner at that time that the Veteran was not in any acute or apparent distress. He did not appear to be anxious, in pain, or lethargic. His heart was normal in rate and rhythm, and his breathing was normal. Tellingly, the Veteran's diarrhea and vomiting were described as merely "moderate" in nature, and he still intended to report to work for the day at the height of his symptomatology. The Board finds that these medical records, which do not show that a prudent layperson would have reasonably expected that a delay in seeking medical attention would be hazardous, are of greater probative value than any later statements from the Veteran that it was. See Davidson, supra; Jandreau, supra; Buchanan, supra; Charles, supra; Also see Black, supra. Accordingly, because the preponderance of the evidence is against the conclusion that the treatment the Veteran received was 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, VA is precluded from paying or reimbursing these private medical expenses under the Veterans Millennium Health Care and Benefits Act regardless of whether or not a VA facility was feasibly available, regardless of whether or not the Veteran is service connected for the disability that required treatment, and regardless of whether or not space was available at a nearby VA Medical Center. 38 C.F.R. § 17.1002. Lastly, the Statement of the Case references a review by a VA physician. A copy of the physician's report is not in the claims file. However, the Board is not relying on the physician's assessment and therefore, a remand to obtain the report is not necessary. The report has no possibility of substantiating the Veteran's claim because the Board is making its decision based on the non-emergency nature of the Veteran's disability as described by the Veteran and the hospital records. While the Board is sympathetic to the Veteran's arguments, it is bound by the criteria set forth above, and a review of all the potentially applicable laws and regulations does not reveal a provision under which payment or reimbursement of the medical expenses in question may be made by VA. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "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)). In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of medical care provided at Memorial Hospital in Jacksonville, Florida, on February 7, 2011, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs