Citation Nr: 1329148	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  13-15 926	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York


THE ISSUE

Entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at Faxton-St. Luke's Healthcare on July 3, 2012.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from December 1942 to November 1944.

This appeal comes to the Board of Veterans' Appeals (Board) from a November 2012 determination of the Department of Veterans Affairs Medical Center (VAMC) in Canandaigua, New York.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Medical care was provided to the Veteran at Faxton-St. Luke's Healthcare on July 3, 2012.

2.  The private treatment rendered by Faxton-St. Luke's Healthcare was not authorized by VA.

3.  The medical care that the Veteran received at Faxton-St. Luke's Healthcare on July 3, 2012, 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 entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at Faxton-St. Luke's Healthcare on July 3, 2012, have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.121, 17.1000-1002 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's combined health record folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a).  It is not clear whether VA's duty to notify is applicable to claims such as the one decided herein.  Cf. Barger v. Principi, 16 Vet. App. 132 (2002).  In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act (VCAA), with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA).  Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 17).  However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the Court appeared to assume the VCAA is 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 38 U.S.C. and 38 C.F.R, moreover, 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.

The Veteran was sent a letter in January 2013 advising him of the information necessary to substantiate his claim as well as notifying him of all relevant procedure and appellate rights.  The VAMC has explained to the Veteran the bases for denial of the claim, and afforded him the opportunity to present information and evidence in support of the claim.  Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claims, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected.  VA has satisfied its duties to inform and assist the Veteran at every stage of this case.  Therefore, the Board may proceed to consider the merits of the claim.

The Veteran is seeking entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received for the removal of a nasal "rhino rocket" on July 3, 2013, at Faxton-St. Luke's Healthcare.  The VAMC in Canandaigua, New York, denied the claim on the basis that a VA facility was available and the procedure was non emergent in nature.  See November 2012 Clinical Review Cover Sheet.  The Veteran contends that the treatment he received was emergent due to the fact that he was weak, dizzy, losing his balance, had a foggy mind, could not drive, and was having episodes of fainting.  He also asserts that the VA facility in Albany is 63 miles away and that he had to go to a hospital because the removal of the packing from his nose was a medical procedure.  See statements in support of claim dated December 2012 and March 2013; May 2013 VA Form 9.  

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.

The Veteran does not argue, and the record does not show, that prior authorization was received from the VAMC to seek emergency services at Faxton-St. Luke's Healthcare on July 3, 2013, nor does the evidence show that an application for authorization made to VA within 72 hours of the emergency services rendered.  For these reasons, in the absence of prior authorization or deemed prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 U.S.C.A. § 1703; 38 C.F.R. §§ 17.52, 17.53, and 17.54 for medical services at a non-VA facility on July 3, 2013.

Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 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, in order 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 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) In a medical emergency.  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.   See 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, "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). 

Prior to the July 3, 2012, treatment in question, service connection had been in effect for anxiety reaction with a 100 percent evaluation since December 3, 1964.  Although there has not been an explicit determination that the Veteran is totally and permanently disabled, since the 100 percent rating has been in effect for over 20 years and is now protected, the Board finds that for the purpose of this decision, that satisfies the requirement that the Veteran have a total disability, permanent in nature, resulting from a service-connected disability.  See 38 C.F.R. § 3.951.  He may therefore be considered for reimbursement or payment under 38 U.S.C.A. § 1728 for the medical expenses related to the private treatment if the record establishes that such care or services were rendered in a medical emergency and VA or other Federal facilities were not feasibly available.  See 38 C.F.R. § 17.120.

As noted above, the Veteran alleges that the care he received at Faxton-St. Luke's Healthcare on July 3, 2012, was emergent because he was weak, dizzy, losing his balance, had a foggy mind, could not drive, was having episodes of fainting, and the closest VA facility in Albany was 63 miles away.  The Board finds these assertions competent, but not credible.  Records from Faxton-St. Luke's Healthcare indicate that on the date in question, the Veteran was seen for follow-up after an initial emergency room visit on July 1, 2012, with request to have a "rhino rocket" removed from his left nostril.  He denied any complaints and indicated that he had had no bleeding since the placement of the "rhino rocket."  These records also document that the Veteran was alert and oriented times three and appeared well.  His head was atraumatic, his sinuses were non-tender, his eyes and mucosa were normal, there was no active bleeding, and no specific site found.  In this case, the medical findings and complaints at the time of presentation to the emergency room on July 3, 2012, are more credible and probative than the Veteran's current contentions.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran).  

While the Board acknowledges that the removal of the packing, or "rhino rocket," may have required medical attention, the treatment does not meet the requirements for emergency services under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120.  In other words, the preponderance of the evidence does not show the Veteran received treatment 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.  There is no medical evidence to the contrary.  

The Board notes at this juncture that VA has authorized reimbursement of the expenses incurred by the Veteran on July 1, 2012, the date the "rhino rocket" was inserted as a result of a nosebleed, since that initial visit was deemed to be appropriate.  See January 2013 determination by Chief of Staff.  

Since the Veteran does not meet one of the three requirements under 38 U.S.C.A. § 1728, entitlement to reimbursement or payment by VA of the cost of unauthorized medical treatment provided on July 3, 2012, must be denied under these provisions.  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. 

See 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)).

As noted above, eligibility for reimbursement under the Veterans Millennium Health Care and Benefits Act requires that the 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.  Also noted above, VA has reimbursed the Veteran for the initial emergency room visit on July 1, 2012, when the "rhino rocket" was inserted to stop a nosebleed.  The Board has determined that the Veteran's follow up visit on July 3, 2012, for removal of the "rhino rocket," was non-emergent in nature, and there is no indication that to delay treatment would have been hazardous to his life or health.  Again, there is no medical evidence to the contrary. 

The Veteran does not satisfy at least one of the requisite criterion set forth above; therefore, reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 cannot be granted.

While the Board is sympathetic toward the Veteran, it is bound by the law, and its decision is dictated by the relevant statutes and regulations.  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).  Additionally, "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)).


ORDER

Entitlement to payment of or reimbursement for unauthorized medical expenses for emergency room treatment received at Faxton-St. Luke's Healthcare on July 3, 2012, is denied.  



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs