Citation Nr: 1327053	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  11-18 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Columbus, Ohio


THE ISSUE

Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred on May 11, 2010. 



REPRESENTATION

Veteran represented by:	AMVETS



ATTORNEY FOR THE BOARD

M. Donohue, Counsel




INTRODUCTION

The Veteran served on active duty from October 1960 to July 1965 and from August 1965 to July 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 administrative decision of the Department of Veterans Affairs Medical Center (VAMC) in Columbus, Ohio.


FINDINGS OF FACT

1. At the time of his May 11, 2010 emergency treatment, the Veteran was service-connected for schizophrenia, paranoid type with major depressive disorder and anxiety neurosis, evaluated as 100 percent disabling; type II diabetes mellitus with gastroesophageal reflux disease, evaluated as 20 percent disabling; and hypertension, evaluated as 10 percent disabling. 

2. The Veteran received emergency medical treatment for nausea and tremors from Doctor's Hospital on May 11, 2010.  He was diagnosed with nausea and weakness.

3. A prudent layperson would have believed the symptoms the Veteran experienced prior hospitalization were emergent in nature.

4. A VA facility was not feasibly available and an attempt to use it beforehand would not have been considered reasonable by a prudent layperson.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility on May 11, 2010 have been met.  38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.130, 17.1002 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Significantly, this claim is governed by the provisions of Chapter 17 of Title 38 of the United States Code.  There is caselaw to the effect that the VCAA and its implementing regulations do not apply in this matter. See Barger v. Principi, 16 Vet.App. 132, 138 (2002). In Beverly v. Nicholson, 19 Vet.App. 394, 403-04 (2005), however, although not explicitly so finding, the Court appeared to assume the VCAA applies to a Chapter 17 claim (but then held that the failure to comply with the VCAA notice requirements in that case was non-prejudicial).  Regardless, the Board finds that adequate notice has been provided and the Veteran has had a fair opportunity to present arguments and evidence in support of this claim.  Indeed, a June 2010 letter advised the Veteran of the criteria needed to substantiate his claim.  

As for a duty to assist, the Board is satisfied that any duty to assist has been met as all pertinent private hospitalization records were submitted or obtained.  Given the results favorable to the Veteran, further development would not result in a more favorable result for the Veteran, or be of assistance to this inquiry.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of his claim. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002).


Relevant law and regulations

When VA facilities are not capable of furnishing the care or services required, VA may contract with non-Department facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving medical services in a Department facility until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility. 38 U.S.C.A § 1703(a)(3); 38 C.F.R. § 17.52.

The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54.  In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54.  Additionally, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where:

(a) 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. Chapter 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) 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) 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 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120.

All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet.App. 45 (1998); Hayes v. Brown, 6 Vet.App. 66 (1993).

Emergency treatment is defined as medical care or services that are furnished when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. 38 U.S.C.A. § 1725 (f)(1); 1728(c)(giving 'emergency treatment' the same meaning as provided in 1725(f)(1));38 C.F.R. § 17.120, 17.1002; see Swinney v. Shinseki, 23 Vet.App. 257, 263 (2009). The standard for emergency treatment 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 possess 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. 38 C.F.R. § 17.1002(b). 'Emergency treatment' includes treatment rendered 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 . . . such time as a Department facility or other Federal facility accepts such transfer if: (I) 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 (II) 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. 38 U.S.C.A. § 1725(f)(1)(C).

With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53.  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. Id. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated.  Id.  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.

Analysis

In his July 2010 substantive appeal, the Veteran stated that on May 11, 2010, he woke up feeling extremely cold and his hands were "erratically shaking."  Despite his attempts to warm up, after three hours he remained cold and began experiencing nausea with dry heaves. 

The Veteran reported that he called a VA community based outpatient treatment clinic and was told that there were no nurses available to speak with him.  While on hold with the VA, the Veteran was informed through an automated recording that he should contact 911 if he was experiencing a life threatening emergency.  Since the Veteran believed that his symptoms were life threatening, he contacted a friend who drove him to a hospital. 

The record reflects that the Veteran has been evaluated as 100 percent disabled for schizophrenia since December 1980.  As he has a total service-connected disability that is reasonably certain to continue throughout his life, he is eligible for reimbursement of unauthorized medical expenses, provided the other criteria have been met. 38 U.S.C.A. § 1728(a)(2); 38 C.F.R. § 4.15.

With respect to the second criteria, a medical emergency, the U.S. Court of Appeals for Veterans Claims (Court) has held that in evaluating whether a prudent layperson would consider the treatment emergent, both medical and lay evidence may be considered. Swinney v. Shinseki, 23 Vet.App. 257, 265.  The Court has further explained that a medical determination made in hindsight is not dispositive of whether the claimant is eligible for reimbursement under section 1725.  Id. 

The Veteran has stated that prior to seeking emergency treatment, his hands were shaking uncontrollably, he was unable to get warm, and was extremely nauseous and dry heaving.  Emergency room treatment records from the Doctor's Hospital note that the Veteran was unable to take his medication for diabetes mellitus due to the extreme nausea he was experiencing. 

The Board observes that Doctor's Hospital provided the Veteran with discharge instructions for his diabetes mellitus.  These instructions provide that if he is unable to think clearly, is very weak, sweating, and pale: has a fast heartbeat, seizures (convulsions), or cannot be wakened, he is experiencing a medical emergency and should call 911.  The instructions also provide that he should "seek immediate medical treatment" if he experiences vomiting.

The Board observes that the record includes statements from two VA physicians which indicate that the Veteran's condition was non-emergent, however, the Board finds that from the perspective of the Veteran, a prudent layperson at the time the event was happening would have reasonably believed that a medical emergency was taking place.  In this capacity the Board notes that the symptoms the Veteran was experiencing are included in the list symptoms provided by Doctor's hospital which require emergency treatment.  Accordingly, the Board finds that services were rendered in a medical emergency.  See 38 U.S.C.A. § 1728(a)(1) (West 2002); 38 C.F.R. § 17.120(b) (2012).

With respect to issue of whether VA facilities were feasibly available, the Veteran reported that he called a VA community based outpatient treatment clinic and was told that nurses were unavailable to talk to him regarding his symptoms.  While the Board acknowledges that the Veteran has not alleged that he was refused VA treatment, since he was told that nurses were unavailable, the Board finds that VA facilities were not feasibly available for the emergency needs of the Veteran at that time and an attempt to use it beforehand would not have been reasonable.

The Board notes that the record includes two statements from VA physicians who indicated that the Veteran "could have utilized a VA facility" however, these statements to not address whether a VA facility was available for the Veteran's use.  In this capacity, the Board notes that the Veteran's statement is the only evidence of record which addresses the availability of VA care. 

For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by Doctor's Hospital on May 11, 2010, under 38 U.S.C.A. § 1728, have been met.


ORDER

Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred on May 11, 2010 is granted.



____________________________________________
Cheryl L. Mason
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs