Citation Nr: 1326188	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  08-22 953A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Tampa, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred from July 25, 2005, to August 7, 2005, at Florida Hospital Medical Center.


ATTORNEY FOR THE BOARD

A. Hinton, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from July 1972 to July 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 decision by the James A. Haley VA Hospital in Tampa, Florida, which denied entitlement to reimbursement to medical expenses from July 25 to August 7, 2005, at the Florida Hospital.

In August 2008 the Veteran requested a personal hearing before a Veterans Law Judge at the RO.  This was scheduled, however the Veteran later cancelled his hearing in November 2009 due to health problems, and has not requested rescheduling of the hearing.

In June 2012 the Board remanded the case for further development.


FINDINGS OF FACT

1.  The Veteran incurred expenses as a result of medical treatment received at Florida Hospital Medical Center from July 25, 2005, to August 7, 2005.

2.  There was no prior authorization for the medical services in question.

3.  The medical services in question were not for a service-connected disability.

4.  The treatment that the Veteran received was not for a condition 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 reimbursement of unauthorized medical expenses incurred from July 25, 2005, to August 7, 2005, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.54, 17.120, 17.1000-17.1008 (2012). 


Duties 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).   The provisions of the VCAA are not applicable, however, where the law, not the factual evidence, is dispositive.  Manning v. Principi, 16 Vet. App. 534, 542-43 (2002).   As this case involves a legal determination of whether the Veteran is entitled to reimbursement for 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 has been met.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he sought emergency treatment for gallbladder problems, and treatment at a non-VA facility was required for an extended period because VA had previously declined to treat him due to his hepatitis C infection. 

The October 2006 decision by the James A. Haley VA Hospital shows that the claim for reimbursement was for the amount of $54,735.14 covering all costs for treatment at the Florida Hospital Medical Center from July 25, 2005 to August 7, 2005.  The decision shows that the claim was granted under the Veterans Millennium Health Care and Benefits Act only for the amount of $1,306.02, on the basis that the medical condition had stabilized on July 25, 2005, and transfer to a VA medical center could have been safely effected.

A VA medical record titled Clinical Tracking Record, printed in January 2013, provides the following brief summary of the recent medical history of VA treatment of the Veteran's Gallbladder problem in 2004 and 2005.  Review shows that the Veteran was seen in June 2004 for a new consultation of the Gallbladder problem.  

Later in June 2004 the Veteran was seen for chronic HCV (hepatitis C virus) disease.  Education was provided on the course of the disease, the role of alcohol on the disease progression and development of cirrhosis, and treatment options.  The provider emphasized adherence to complete abstinence from alcohol during the duration of treatment and the Veteran was notified that blood would be tested for alcohol and treatment would be discontinued on a third offense.  The Veteran acknowledged his understanding and agreement with this.  The Veteran was to undergo cholecystectomy in July and would need to have his diabetes under better control.  The provider was to reevaluate the situation in the second half of August.

The Veteran was seen on July 5, 2005.  The Veteran had chronic HCV disease.  The record noted that the Veteran was evaluated by VA Tampa surgery and after completing the "pre-op evaluation" it was decided that surgery was not needed at this time and the recommendation was to pursue hepatitis C treatment to bring the viral load down.  At that time the Veteran "was naturally upset about the contradictory surgical evaluations" and he felt that surgery had been denied because of the hepatitis C status.  The Veteran stated he had been told by a provider that he had gallbladder polyps that may be cancerous and the provider had recommended surgery as soon as possible.

The January 2013 Clinical Tracking Record contains a final comment indicating that the Veteran called providers at VA on August 1, 2005 to cancel an August 5, 2005 general surgery. 

The following private treatment records from the Florida Hospital Medical Center in Orlando, Florida, show that the Veteran was admitted and treated for his gallbladder condition over almost two weeks from July 25, 2005, to August 7, 2005.  

A July 25, 2005 Emergency Department Adult Nursing Flow sheet shows that the Veteran arrived at 10:35 pm that night, with a chief complaint of nausea and vomiting for two days, and diarrhea; and he reported a history of gallbladder disease.  He also reported having right abdomen pain that he rated as 6 on a scale of 10.  The Veteran was calm, cooperative, and oriented.  The report contains an assessment that the Veteran's vital signs were stable, he had complaints of nausea and diarrhea, and diffuse abdominal pain.  There was no CVA (costovertebral angle) tenderness.

The Veteran was admitted from the Emergency Department at 3 am on July 26, 2005.  Over the course of the next week the Veteran underwent a number of tests to rule out or in indicated conditions, to establish the nature and condition of the Veteran's complaints.  

There are two consultation reports dated July 26, 2005 by two different consulting physicians, Syed A. Malik, MD, and Nasim Ahmed, MD.  These two reports generally state the following.   The Veteran was admitted through the Emergency Department with chief complaints of upper abdominal pain, nausea, vomiting, and diarrhea of four to five days duration.  However, the condition had been off and on for 1.5 years.  The Veteran denied having any fever or chills.  He reported that he had lost over 20 to 25 pounds in the last month or two.  He reported that he had been having a lot of dry heaving and he vomited four to five times on that day.

These physicians indicated that the Veteran was admitted to the hospital to rule out cholecystitis versus gastritis versus diverticulitis.  The plan was also to rule out Clostridium difficile toxin colitis.  The physicians noted that the Veteran was being followed at the VA hospital, where he had had a GI workup done and was supposed to have cholecystectomy performed at the VA Hospital Tampa, but this was canceled because of his hepatitis C.

On August 2, 2005 the Veteran underwent laparoscopy followed by open cholecystectomy with operative cholangiogram, in treatment of cholecystitis with multiple gallbladder polyps.  The Veteran was then discharged on August 7, 2005.

Under 38 U.S.C.A. § 1725, VA may reimburse a veteran for reasonable value of emergency treatment furnished in a non-VA facility, or in lieu of that, make payment directly to a hospital or other health care provider that furnished such treatment on behalf of the Veteran, if other requirements discussed below are met. 38 U.S.C.A. § 1725 (West 2002). 

Generally, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care of a Veteran. 

Reimbursement or payment for expenses not previously authorized may be made only under the following circumstances: 

(a) for veterans with service connected disabilities, treatment not previously authorized is rendered for (1) an adjudicated service-connected disability; or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; or (3) any disability of a veteran who is permanently and totally disabled as a result of a service-connected disability; or (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; 

(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 three criteria (a, b, or c) 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.  38 C.F.R. § 17.130. 

As reflected in the coding sheet of an April 2012 RO rating decision, service-connection is in effect for the following disabilities with associated disability ratings in parentheses: posttraumatic stress disorder (50 percent); hepatitis C (40 percent) ; tinnitus (10 percent); and hearing loss (zero percent).  The subject treatment was not for any of these service-connected disabilities, or for a condition associated with and held to be aggravating any of these adjudicated service-connected disabilities. 

Most importantly, and determinative of the question of entitlement under 38 U.S.C.A. § 1728, there is no indication that the medical treatment received-beyond that for which VA granted reimbursement-from July 25, 2005, to August 7, 2005 was for a medical emergency such that a VA facility was not feasibly available.  See Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (defining a medical emergency as a sudden, generally unexpected occurrence or set of circumstances demanding immediate action).

The record reflects that at the time the Veteran presented at the emergency department of the Florida Hospital Medical Center, he reported having symptoms of right upper quadrant pain, nausea, vomiting, and diarrhea for some days prior to coming to the hospital on July 25, 2005.  He reported the pain to be a six on a scale of ten.  The early assessment that night was that the Veteran's vital signs were stable, and the Veteran continued to have similar complaints of nausea, diarrhea, and diffuse abdominal pain.  

None of the private hospital medical records of the Veteran's treatment prior to the August 2, 2005 surgery indicate an emergent condition that involved a sudden, unexpected occurrence or set of circumstances demanding immediate action, of such nature that delay would have been hazardous to life or health.

The record does not demonstrate that any attempt to use VA facilities beforehand, or to obtain prior VA authorization for the services required would have been unreasonable, unsound, unwise, or not practicable. 

Thus, the Veteran does not meet the necessary criteria for entitlement under 38 U.S.C. 1728 and is not eligible for medical expense reimbursement under 38 U.S.C. 1728 for the non-VA medical center treatment provided.  

Because the Veteran did not meet the criteria for payment of authorized or unauthorized medical expenses of 38 U.S.C.A. § 1728, the Veteran's claim for payment must also be considered under criteria for determining entitlement under the Veterans Millennium Healthcare and Benefits Act, 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008.  The provisions of the Act became effective as of May 29, 2000.  The purpose of the Veterans Millennium Healthcare and Benefits Act (Act) is to provide for VA to make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities in non-VA facilities. 

The Act provides for VA to make payment or reimbursement of costs for emergency treatment for non-service-connected disabilities in non-VA facilities, but only if all of the following nine criteria are met: 

(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 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); 

(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 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); (emphasis added) 


(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.A. § 1728 for the emergency treatment provided (38 U.S.C.A. § 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 (a)-(i). 

There is no evidence that the claimed private hospital treatment constituted emergency services, or that the treatment 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, as further defined in the above criterion. See 38 C.F.R. § 17.1002 (a),(b). 

The clinical evidence reflects that the Florida Hospital Medical Center treatment from July 25, 2005 to August 7, 2005 was not performed on an emergency basis.  Although the Veteran arrived by ambulance, the primary triage was determined to be urgent, and not emergent.  VA has, appropriately, granted reimbursement for the initial treatment associated with the Veteran's emergency department treatment.

The Veteran arrived at the hospital after several days of symptoms of nausea, vomiting, diarrhea, and upper right quadrant pain.  The treatment providers determined the triage category to be urgent (as opposed to emergent). The Veteran was awake and alert.  The initial assessment included that the vital signs were stable.  

There were no acute symptoms of such severity 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.  

The hospital treatment records do not reflect that the treatment providers viewed the Veteran's condition as requiring emergent treatment.  This is shown by the fact that the treating physicians did not perform the surgical treatment to resolve the Veteran's acute symptoms until a week after admission.

The lengthy time between initial  presentation and assessment, and the actual primary surgical treatment for the condition, does not reflect that the treatment providers considered the situation one of providing emergency services or that the condition was 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. 

There is no evidence that the Veteran contacted VA prior to going the private hospital.  

In the absence of evidence that the expense of the private hospital care was rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and as all the criteria must be met in order to establish entitlement to payment or reimbursement of medical expenses under the statute, the Board need not discuss further the criterion of whether a VA or other Federal facility was feasibly available, or other criteria.   Nonetheless, there is no evidence that the VA medical center from which the Veteran had been receiving ongoing care of his digestive system condition, was not feasibly available.

To the extent that the Veteran asserts that his hospitalization constituted a medical emergency, his lay opinion is refuted by the medical evidence of record, as discussed above.   



The preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and payment or reimbursement of unauthorized medical expenses incurred from July 25, 2005 to August 7, 2005, at Florida Hospital Medical Center is not warranted.  38 U.S.C.A. § 5107(b). 


ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses incurred from July 25, 2005 to August 7, 2005, at Florida Hospital Medical Center is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs