Citation Nr: 1330225	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  11-02 660A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Mountain Home, Tennessee


THE ISSUE

Entitlement to payment or reimbursement for medical expenses incurred at a private facility on August 18, 2009.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fleming, Counsel


INTRODUCTION

The Veteran served on active duty from October 2001 to July 2007.

This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Mountain Home, Tennessee.  A notice of disagreement was filed in October 2010, a statement of the case was issued in January 2011, and a substantive appeal was received in February 2011.

The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2011.  A transcript of that hearing has been associated with the Veteran's claims file.


FINDINGS OF FACT

1.  The Veteran received medical care at Fort Sanders Sevier Medical Center on August 18, 2009.

2.  Service connection is in effect for scoliosis/back strain, right hip strain, right knee strain, and gout of the right ankle and left foot; however, the Veteran was not seeking private medical treatment for a service-connected disability.

3.  The evidence does not reveal that VA approved a request for prior authorization for the medical services in question.

4.  Delay in treatment would not have been hazardous to life and health.



CONCLUSION OF LAW

The criteria for payment or reimbursement for the private medical services the appellant received at Fort Sanders Sevier Medical Center, on August 18, 2009, are not met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.47, 17.120, 17.1000-17.1002, 17.1004 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The VCAA does not apply in the instant case, as the relevant facts necessary for the determination to be made (i.e., the nature of the treatment the Veteran received, the nature of the Veteran's service-connected disabilities) are not in dispute, and whether the Veteran is entitled to payment or reimbursement for the medical expenses in question is wholly a matter of interpretation of the pertinent statute and the regulatory provisions based on that statute.  The U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  In any event, the appellant was issued proper VCAA notice in August 2010, which provided notice of the information and evidence necessary to support his claim.

Criteria & Analysis

The Veteran is seeking entitlement to payment for unauthorized medical expenses incurred on August 18, 2009.  Initially, in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received in a private facility on August 18, 2009.  See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54.  This is a factual, not a medical, determination.  Similes v. Brown, 5 Vet. App. 555 (1994).  In this case, the Veteran has never claimed that he had any prior authorization from VA for medical treatment at Fort Sanders Sevier Medical Center on August 18, 2009.  Thus, this fact is not in dispute.

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 VA, or of any medical services not previously authorized including transportation may be paid on the basis of a claim timely filed, under the following circumstances:

(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.A. § Chapter 31 and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 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.

See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Veteran does not meet all of the criteria of 38 C.F.R. § 17.120(a) because the care was not rendered for a service-connected disability or for a non-service-connected disability associated with and held to be aggravating a service-connected disability.  Service connection has been established for scoliosis/back strain, right hip strain, right knee strain, and gout of the right ankle and left foot; however, there is no indication that the Veteran was seeking treatment related to such disability.  Additionally, there was no evidence that the Veteran was participating in a rehabilitation program, nor has he alleged that his treatment was for any of these aforementioned purposes.  The provisions in 38 C.F.R. § 17.120 are conjunctive, not disjunctive.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned).  Consequently, he is not eligible for benefits under 38 U.S.C.A. § 1728.  See 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120, 17.47(i).

As the Veteran was not seeking care for a service-connected disability, the claim must be considered under the Millennium Health Care and Benefits Act, Public Law 106-177, also known as the Millennium Bill Act.  This Act is effective May 29, 2000, and is codified at 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-17.1008.  The statute found at 38 U.S.C.A. § 1725 was amended, effective October 10, 2008.  Veterans Benefits Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat. 4145 (2008).

Payment or reimbursement for emergency services for non-service-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 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 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;

(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; and

(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.  Again, the criteria are conjunctive, not disjunctive; thus all criteria must be met.  See Melson, supra.

The definition of the term "emergency treatment" 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).

Records from the Fort Sanders Sevier Medical Center reflect that the Veteran arrived at the emergency department early in the morning of August 18, 2009, complaining of "weird feelings" in his chest and left arm that rendered him unable to sleep.  He complained that he had been experiencing these pains, as well as weakness and shortness of breath and pain in his feet and back, for the past two weeks.  Emergency Nursing Records indicate that the Veteran reported that the shooting pain in his chest occurred primarily when he lay down.  He was admitted with an initial diagnosis of chest pain.  A second care provider then evaluated the Veteran, noting that he reported intermittent symptoms of chest pain for the past two weeks that were moderate in nature and mild when he arrived at the emergency department.  He was noted to have a family history of coronary artery disease in both parents and was again diagnosed with chest pain at that time.  Upon admission, the Veteran was transferred to the Chest Pain Center of the Fort Sanders Sevier Medical Center, at which time he underwent a cardiac stress test that returned normal results.  Again, the diagnosis was chest pain.  Electrocardiography revealed sinus bradycardia but was otherwise normal, as were blood tests and x-rays of the chest.  Nursing notes from the inpatient treatment similarly document that the Veteran complained of intermittent sharp chest pains, with no pain at present.  There was reportedly no acute distress since admission.  

In September 2009, a VA care provider reviewed the Veteran's claims folder and opined that the Veteran's condition was not of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health.  The care provider further noted that VA services were feasibly available to provide the Veteran's needed care.  In so finding, the evaluator specifically noted that the Veteran's complained-of chest pains and other symptoms were intermittent in nature over a two-week period prior to the private care and that the Veteran had no history of heart problems.  In October 2010, a second physician reviewed the Veteran's claims folder and also found that the Veteran's condition was non-emergent and that VA facilities were feasibly available.  The examiner stated that per the Veteran's own history as recorded by multiple care providers at the time of the treatment, he indicated that he had been experiencing intermittent sharp, burning chest pain for two weeks prior to his presentation to the emergency room.  The examiner stated that this was more than enough time to have made arrangements to go to a VAMC for further evaluation.  The VA physician determined that the treatment sought should not be authorized.

The Veteran testified before the undersigned Veterans Law Judge at a hearing in August 2011.  At that time, the Veteran stated that he sought treatment at the Fort Sanders Sevier Medical Center on August 18, 2009, because his chest pain had worsened and he had developed tingling in his left arm and numbness in his fingers, keeping him from sleep and causing him to fear that he was having a heart attack.  He also stated that he was "unsuccessful" in calling his VAMC prior to seeking private treatment.  He noted that he was afraid he was having a heart attack in particular given that his father had recently had open-heart surgery and that he had learned of an otherwise healthy young Marine who died of heart complications while running a race the Veteran had also competed in.  He also noted that the private facility where he sought treatment is only five minutes from his home, whereas the closest VA facility was over an hour's drive away.

Based on a review of the evidence, to include the treatment records, the opinions of the VA physicians, and testimony from the Veteran, the Board does not find that the Veteran's symptoms on August 18, 2009, presented a medical emergency such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  Although the Veteran testified at his August 2011 hearing that he sought emergent treatment only after his symptoms "dramatically got worse," contemporaneous treatment records reflect that he reported having had the same symptoms for two weeks before seeking medical care.  The treatment providers noted that his "weird feelings" in his chest and left arm were keeping him from sleeping but did not record any complaints that the symptoms had worsened in any significant way to cause him to seek treatment.  In fact, nursing notes reflect mild chest pain when seen in the emergency room and no acute distress following admission.  The Board finds that the contemporaneous reports by the Veteran to his treatment providers are more probative than the testimony he provided at his hearing nearly two years later, since those providers recorded the specifics of the Veteran's symptomatology at the time of treatment.  

As noted above, multiple care providers at the Fort Sanders Sevier Medical Center noted that the Veteran reported experiencing sharp, burning pains in his chest intermittently for a two-week period prior to his admission on August 18, 2009.  Likewise, two VA care providers have observed that, due to the two-week duration of his symptoms, he had time to arrange for VA emergency or clinical care prior to seeking private treatment on an emergent basis.  Thus, despite the Veteran's contentions regarding his family history and his knowledge of an apparently healthy Marine who died while running a race in which the Veteran had competed, the Board finds compelling the fact that the Veteran had experienced the same symptoms for a full two weeks prior to seeking treatment.  This suggests, as did the VA examiners who reviewed the Veteran's claims file, that he had ample time to seek VA treatment prior to his admission at the Fort Sanders Sevier Medical Center.  This two-week delay leads to the conclusion that the Veteran was not suffering from conditions in which a reasonable person might believe that a delay in seeking immediate medical attention would have been hazardous to life or health.  Again, the Veteran had more than two weeks of experiencing symptomatology to make arrangements to be transported to a VA facility, which he failed to do.

Although the Board is sympathetic toward the Veteran, it is bound by the law, and this decision is dictated by the relevant statutes and regulations.  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; 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)).  Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against reimbursement or payment for the unauthorized private medical care that the Veteran received at Fort Sanders Sevier Medical Center on August 18, 2009, under the provisions of 38 U.S.C.A. § 1725.



ORDER

Entitlement to payment or reimbursement of unauthorized medical expenses for medical care received at Fort Sanders Sevier Medical Center on August 18, 2009, is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs