Citation Nr: 1331004 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-45 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center, Orlando, Florida THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of treatment at a private medical facility on April 21, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination made in July 2010 by the Department of Veterans Affairs (VA) Fee-Basis Medical Center in Orlando, Florida, which denied payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at a private medical facility in Altamonte Springs, Florida, on April 21, 2010. The Veteran testified during a Board hearing, held by the undersigned, in August 2011. A copy of the hearing transcript (Transcript) has been associated with the record. FINDINGS OF FACT 1. The evidence of record does not conclusively demonstrate that VA authorized a private treatment facility to provide care for which the Veteran would later be reimbursed, nor did VA contract with this facility to provide the treatment in question. 2. The evidence of record demonstrates that the Veteran's emergency treatment, provided by a private medical facility on April 21, 2010, constituted a medical emergency of such a nature that a prudent layperson would believe that delay would have been hazardous to life or health. 3. There is no evidence of record to demonstrate that the Veteran was insured under a healthcare contract for payment or reimbursement in whole or in part for the emergency treatment at the time of the treatment in question. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred as a result of treatment at a private medical facility on April 21, 2010, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§17.1000-17.1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits and to assist in development of a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2013). In the instant case, the Veteran's claim is granted herein. As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. Payment or Reimbursement of Private Medical Expenses The Veteran has appealed VA's determination which denied entitlement to payment or reimbursement for medical services he received from a private facility on April 21, 2010, to include emergency treatment, laboratory analysis, an electrocardiogram (EKG), and a computerized tomography (CT) scan. Per the Veteran, these medical services were rendered during a period of physical distress, in which he believed that a delay in seeking treatment would have been hazardous to his life or health. Specifically, the Veteran testified that, on the day in question, he experienced several "hard" seizures within the span of one hour. To clarify, he noted that he had suffered from a seizure disorder for a very long time, and that "hard" seizures resulted in the loss of his sense of awareness, and affected his entire body. See Transcript, pp., 5, 7. To begin, the Board notes that the Veteran is currently service connected for prostate cancer, post radical prostatectomy; posttraumatic stress disorder; tinnitus; and erectile dysfunction. As such, the Veteran is authorized to receive medical care at VA facilities. See 38 U.S.C.A. § 1710. When seeking medical care at a non-VA facility at the expense of VA, such medical care must be authorized in advance. See 38 C.F.R. §17.54. In that situation, VA will contract with the non-VA facility when VA facilities are not capable of furnishing economical hospital care or medical services due to geographical inaccessibility or are not capable of furnishing the care or services required. See 38 U.S.C.A. § 1703(a). VA may contract with non-VA facilities for treatment of service-connected disabilities, disabilities for which a veteran was discharged or released from active duty, and disabilities of veterans who receive total disability, permanent in nature, from a service-connected disability. See id. In certain cases, medical expenses incurred by veterans at private facilities, and not previously authorized by VA, may be paid or reimbursed by VA in limited situations where particular statutorily-mandated requirements are met. Specifically, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. 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. To that end, the Board points out that each of these sections involves emergent care. Under 38 U.S.C.A. § 1728, VA may pay or reimburse veterans for payment of medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such a 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 nonservice-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; or (D) for any illness in the case of a veteran who is a participant in a vocational rehabilitation program that necessitates care or treatment to make possible such veteran's entrance into a course of training, prevent interruption of such course of training, or hasten completion of such course of training; and, (3) VA or other Federal facilities were not reasonably available and an attempt to use them beforehand would not have been reasonable, sound, wise or practicable. See also 38 C.F.R. § 17.120. All three requirements must be met before payment is authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998). "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). In this case, the Veteran has contended that he obtained authorization from VA for his non-VA medical care. In written statements, and pursuant to the Veteran's Board hearing testimony, he has indicated that he spoke to his VA provider's nurse, G., who then spoke with the Veteran's VA provider, who instructed him to go to the nearest emergency room (located in Altamonte Springs, Florida). Per the Veteran, he followed up with the Orlando VA Medical Center, and was once again instructed to report to the nearest emergency room. However, as there is no transcript or other record of either conversation of record, the Veteran has not sufficiently demonstrated that "prior authorization" from VA for the private medical treatment supplied on April 21, 2010, was obtained pursuant to 38 C.F.R. §17.54. Therefore, in order to assess whether his request for payment or reimbursement of those expenses is warranted, the Board must determine whether the treatment in question was pursuant to 38 U.S.C.A. § 1728. As to the provisions of 38 U.S.C.A. § 1728, there is no evidence of record to suggest that the private medical care in dispute was rendered for treatment of a service-connected disability. As noted above, the Veteran is currently service-connected for several disabilities; however, a seizure disorder is not a disorder subject to service connection at this time. Further, there is no evidence of record to demonstrate that the disorder for which the Veteran sought treatment was aggravated by a service-connected disability. As the Veteran has not established TDIU, that provision of 38 U.S.C.A. § 1728 is not for consideration. Therefore, to warrant payment or reimbursement for the cost of treatment on April 21, 2010, the Board must conclude that such treatment was sought in a medical emergency of such a nature that delay would have been hazardous to life or health. Evaluating the evidence in light of the above criteria reflects that a prudent layperson would believe the Veteran's medical condition was emergent. In his several written statements of record, as well as during his August 2011 Board hearing, the Veteran argued that his seizures, and their associated symptomatology (felt very cold, had a severe headache, and had clammy hands), were of such a severity that he believed his health and/or life was at risk. See Transcript, p. 7. While initial ER reports indicated that the Veteran merely reported with tremors and received laboratory analyses related to PSA and glucose levels, the Veteran disputed these reports. See Transcript, p. 8. Such reports now note "seizure, tremor, headache, sent by VA, needs lab work and further eval [sic] today." The Veteran and his spouse provided competent and credible evidence of the severity of the Veteran's symptoms on April 21,2010. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In support of the Veteran's contentions, the record does show that a CT scan of the brain was conducted, as well as an EKG reading, and VA treatment reports dated in June 2011 note complaints of multiple seizures (severe enough to result in confusion and memory loss). Taken in the aggregate, the Board finds that the Veteran's lay statements are corroborated by this evidence, and 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. With respect to the issue of whether VA facilities were feasibly available, in light of the inaccessibility of a VA emergency room (the nearest of which was 119 miles from the Veteran's location), in contrast to the distance from the private facility in Altamonte Springs (less than one mile from the Veteran's location), the Board finds that a VA medical facility was not feasibly-available for the emergency needs of the Veteran at that time, and an attempt to drive to a VA ER beforehand would not have been reasonable. 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 on April 21, 2010, have been met. Further, while reimbursement under 38 U.S.C.A. § 1725 requires that the Veteran have no coverage under a healthcare contract for payment or reimbursement in whole or in part for the emergency treatment, there is no evidence to demonstrate that the Veteran was covered under any healthcare contract at the time of treatment in question. A copy of the hospital bill, submitted by the Veteran, indicates that no money was received by the private facility from an insurance carrier, nor was any money from another source applied to the final balance. Moreover, in a letter dated May 5, 2010, the private facility listed the VA Medical Center as the Veteran's insurance carrier. As such, the Veteran's claim is not barred under this clause per 38 U.S.C.A. § 1725, and his claim is granted. ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of treatment at a private medical facility on April 21, 2010, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs