Citation Nr: 1330095 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 13-14 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Portland, Oregon THE ISSUE Entitlement to reimbursement for private medical expenses incurred at Salem Hospital on September 17, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from October 1946 to June 1948. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 administrative decision issued by the Department of Veterans Affairs (VA) VA Medical Center (VAMC) in Portland, Oregon, which, in pertinent part, denied entitlement to reimbursement for private medical expenses incurred on September 17, 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The treatment received on September 17, 2012 at the emergency department (ED) of Salem Hospital was for a medical condition of such nature that a prudent lay person would not reasonably expect that a delay in seeking immediate medical attention would be hazardous to life or health, and a VA or other Federal medical facility was feasibly available at the time of the initial treatment. CONCLUSION OF LAW The criteria for payment or reimbursement for the expenses of private medical treatment incurred on September 17, 2012 at Salem Hospital are not met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, because the claim in this case is governed by the provisions of Chapter 17 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). Therefore, the Board's decision to proceed in adjudicating this claim, rather than remanding it for assistance or additional notification, does not prejudice the appellant in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Claim for Reimbursement of Private Medical Expenses The Veteran contends that reimbursement is warranted for private medical expenses incurred on September 17, 2012 at Salem Hospital. In January and April 2013 statements, the Veteran reported that he was treated at the private facility for a panic attack and possible heart attack that a prudent layperson would consider an emergency. The Veteran also contends that a VA facility was not feasibly available at the time of the private treatment. On September 17, 2012, the Veteran presented to the ED of Salem Hospital with complaints of chronic right leg and back pain. The Veteran reported that he previously treated his pain with Methadone, but his VA physician had taken him off the medication six days earlier due to concerns regarding a "bad heart." The new medication prescribed by VA did not provide any pain relief and the Veteran visited the VA ED a week earlier and was told his heart was normal. He was now seeking a second opinion from a private physician regarding a possible heart abnormality and pain management. Specifically, the Veteran stated that he needed to have his heart checked so he could use a stronger pain medication to treat his sciatica and lumbar back pain. He was admitted to the hospital and an EKG and cardiac enzyme testing were both normal. He denied any history of heart problems and denied experiencing chest pain and shortness of breath. The Veteran was treated for back pain and diagnosed with sciatica and lumbago. Upon discharge, he was advised to follow-up with his VA primary care physician for a possible stress test. 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). The Board will first address the provisions of 38 U.S.C.A. § 1728, and if necessary, discuss 38 U.S.C.A. § 1725, the Veterans Millennium Health Care and Benefits Act. Under 38 U.S.C.A. § 1728, 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. 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. 38 C.F.R. § 17.52. In Smith v. Derwinski, 2 Vet. App. 378 (1992), the U.S. Court of Appeals for Veterans Claims (Court) noted that emergency medical care received from a non-VA hospital requires authorization pursuant to 38 C.F.R. § 17.54. Thus, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. In this case, it is clear that the Veteran did not receive prior authorization for his non-VA treatment. He did not contact VA prior to his transport to the hospital and an application for authorization was not received within 72 hours of any admittance to a private facility. Id. The Veteran has also not alleged any prior authorization from VA for his private treatment and the record does not show that any authorization was requested or received. 38 U.S.C.A. § 1728 provides that VA may pay or reimburse Veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a Veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service-connected disability; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 C.F.R. § 17.120. All three of these statutory requirements must be met before payment may be authorized. Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The Veteran is in receipt of a schedular 100 percent evaluation for a service-connected schizophrenia reaction, paranoid type. Therefore, the lack of service connection for or aggravation of a service-connected disability from the Veteran's right leg and back pain is not a bar to reimbursement of the claimed medical costs. Instead, the pertinent issues in this case are whether the Veteran's treatment was rendered in a medical emergency and whether VA facilities were feasibly available. With respect to whether an emergency existed, 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 do not provide a definition of an emergency. An emergency has been noted to be 'a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.' Hennessey v. Brown, 7 Vet. App. 143, 147 (1994) (citing Webster's New World Dictionary, Third College Edition 444 (1988)). The Court has held that the question of medical emergency is determined on the basis of what a reasonable lay person would believe, rather than medical findings. See Swinney v. Shinseki, 23 Vet. App. 257 (2009). In this case, the Board finds that a reasonable lay person would not believe that the complaints presented by the Veteran on September 17, 2012 were of an emergent type such that a delay in treatment would have been hazardous to his life or health. The Veteran was seen in the ED of Salem Hospital with chronic right leg and back pain. Although he was provided pain medication and treated at the private hospital, his chief complaint was characterized as one of "pain management" and the Veteran specifically stated that he was seeking a second opinion regarding his heart to allow for a stronger pain prescription. He had recently been taken off Methadone by his VA physician and disagreed with the basis for the change in his medication. Rather than presenting with primary complaints regarding the severity and quality of his back pain, the private medical records clearly indicate that the Veteran wanted various tests run on his heart. Furthermore, while the Veteran sought assurances that his heart function was normal, he did not report any symptoms of heart-related problems and denied experiencing chest pain or shortness of breath. In short, the hospital records do not document any complaints or reports from the Veteran that indicated he was experiencing a medical emergency such that a delay in treatment would have been hazardous to his life or health. In January and April 2013 statements to VA, the Veteran reported that on September 17, 2012, he was experiencing a panic attack with symptoms that he believed were indicative of a heart attack. He also stated that the panic attack was brought about due to an exacerbation of his back pain. The Veteran is competent to report the symptoms that he observes and experiences, such as symptoms associated with a possible myocardial infarction and an increase in back pain, but the statements made in support of his claim are at odds with the contents of the objective medical records. Instead of documenting symptoms typically associated with a heart or panic attack, records from Salem Hospital clearly show that the Veteran denied experiencing any chest pain or shortness of breath on September 17, 2012. He was also not diagnosed with a panic attack at anytime while receiving treatment at the private facility. Additionally, he denied a history of heart problems and all cardiac tests were completely normal. The Veteran's complaints and treatment for back and leg pain were also not consistent with a life-threatening emergency; upon physical examination he had no lumbar spine tenderness and his treatment focused on ruling out any possible heart etiologies. The Board finds that the history provided by the Veteran in the context of receiving contemporaneous medical care-i.e. that he was seeking a second opinion regarding any possible heart problems to allow for stronger back pain medication-are more credible than those provided later for compensation purposes. The Board therefore finds that a reasonable lay person would not believe that the Veteran's sciatica and back pain in September 2012 would require immediate emergency treatment. The Board also finds that a VA facility was feasibly available to treat the Veteran's pain. The Veteran's home is located approximately 50 miles from the Portland VAMC and approximately 6 miles from the Salem VA Community Based Outpatient Clinic (CBOC). The Veteran reported to the Salem Hospital physician that he had been seen at the VA hospital one week earlier for similar complaints, but was not satisfied with VA's conclusion that his heart was functioning normally. In fact, he specifically stated that the reason he reported to the private hospital was to receive a "second opinion" regarding his cardiac function, and not because his pain or other symptoms were too severe to allow him to seek treatment through VA. In April 2013, the Veteran stated that he sought treatment at Salem Hospital because he could not drive himself to the Portland VAMC and felt he needed care right away. However, the character of his complaints while receiving treatment on September 17, 2002 belie these more recent statements provided in the context of a claim for compensation. Thus, the Board concludes that VA facilities were feasibly available to treat the Veteran's symptoms on September 17, 2012. As the Veteran's private treatment on September 17, 2012 was not rendered in a medical emergency and other Federal facilities were feasibly available, reimbursement of his private medical expenses is not possible under 38 U.S.C.A. § 1728. The Board must now determine whether reimbursement of the private medical expenses is appropriate under 38 U.S.C.A. § 1725 as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. The provisions of the Act became effective as of May 29, 2000. 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 nature that a prudent layperson would have reasonably expected that delay in seeking 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 could 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 not 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 the 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 Veteran's, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002. These criteria are conjunctive, not disjunctive; thus, all criteria must be met. 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). The Board notes that there was a legislative change of 38 U.S.C.A. § 1725, effective October 10, 2008. Specifically, the word "shall" in the first sentence replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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; and (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B) . The Board finds that reimbursement is not appropriate under 38 U.S.C.A. § 1725. As discussed above, the Board has determined that the treatment provided by Salem Hospital on September 17, 2012 was not for emergency purposes. The Veteran was seen with complaints of chronic sciatica and back pain, but clearly indicated that he wanted a second opinion regarding his heart function. He denied any symptoms indicative of heart abnormalities and was seeking a non-VA opinion to allow for the prescribing of stronger pain medication. He did not indicate in any way that he believed his life or health was in danger either due to his back pain or a possible cardiac condition. It is clear that a prudent layperson would not have reasonably expected that delay in seeking medical attention would have been hazardous to the Veteran's life or health. Furthermore, the Board has also determined that VA facilities were feasibly available for the treatment of the Veteran's complaints, but that he purposefully chose to visit a private hospital in order to obtain a second opinion regarding his heart function. As the requirements for medical expense payment or reimbursement have not been met in accordance with 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725, the Veteran is not entitled to payment or reimbursement for the cost of medical treatment provided on September 17, 2012 at Salem Hospital. Therefore, this claim is denied. ORDER Entitlement to reimbursement for private medical expenses incurred at Salem Hospital on September 17, 2012 is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs