Citation Nr: 1331403 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-25 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at DH of Sarasota on September 9, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Medical Center (MC) located in Bay Pines, Florida. FINDINGS OF FACT 1. During the pendency of this claim, the Veteran was service connected for two superficial scars, each rated as 10 percent disabling; posttraumatic stress disorder, rated 70 percent disabling; facial scars, rated 10 percent disabling; tinnitus, rated 10 percent disabling; impaired hearing, rated noncompensable; and diabetes mellitus, rated 20 percent disabling; the Veteran also was in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), and was considered permanently and totally disabled. 2. The Veteran received treatment at DH of Sarasota on September 9, 2008 for a sore throat and problems swallowing and breathing. 3. The evidence does not show that the treatment the Veteran received at DH of Sarasota on September 9, 2008 was rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. 4. A VA facility was feasibly available at the time he sought treatment at DH of Sarasota; the evidence does not show that an attempt to use the VA facility would not have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses arising from emergency care provided at a non-VA facility on September 9, 2008 have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks reimbursement of expenses incurred on September 9, 2008 when he sought treatment at DH of Sarasota for a sore throat and problems breathing and swallowing. He avers that emergency medical care was required and that he could not get to a VA medical center for treatment. He believed that his condition was emergent. In general, to establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that: (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 rehabilitation program 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) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were 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). Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may also be authorized under 38 U.S.C.A. § 1725 (West 2002) and 38 C.F.R. §§ 17.1000-100 8 (2012). Section 1725 was enacted 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 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; (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 veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 (2012). The criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (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 points out that, effective October 10, 2008, portions of the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See the Veterans' Mental Health and Other Care Improvement Act of 2008, Pub. L. No. 110-387, § 402(a), 122 Stat. 4123 (2008). Relevant to the instant case, the new law amends 38 U.S.C.A. § 1728 to provide the same definition of the term "emergency treatment" as in 38 U.S.C.A. § 1725(f)(1). The definition of emergency treatment, in pertinent part, means medical care or services 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)(B). The new law also amends 38 U.S.C.A. § 1725 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to "shall." Additionally, the existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. See Cotton v. Brown, 7 Vet. App 325, 327 (1995). Feasibly available is not defined in 38 U.S.C.A. § 1728 (West 2002) or 38 C.F.R. § 17.1002 (2012). Under the provisions of 38 C.F.R. § 17.53 (2012), 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. 38 C.F.R. §§ 17.52 and 17.53 (2012). A VA facility would not be feasibly available if there was evidence establishing that an appellant 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 facility. See 38 C.F.R. § 17.1002(c) (2012). The Veteran is presently service-connected for two superficial scars, each rated as 10 percent disabling; posttraumatic stress disorder, rated 70 percent disabling; facial scars, rated 10 percent disabling; tinnitus, rated 10 percent disabling; impaired hearing, rated noncompensable; and diabetes mellitus, rated 20 percent disabling. His combined disability rating is 80 percent. He was awarded a total disability rating based on individual unemployability (TDIU) in May 2006. He is considered permanently and totally disabled. Hence, the criteria of 38 C.F.R. § 17.120(a) are met. Regardless, the criteria for reimbursement or payment of medical expenses are not met under either 38 U.S.C.A. § 1725 or §1728 because such services were not rendered in a medical emergency and VA facilities were feasibly available. The Veteran went to DH of Sarasota on Tuesday, September 9, 2008 for a sore throat. Payment of the medical expenses incurred on this date is not in dispute. The emergency room record states that upon arriving at DH of Sarasota, the Veteran said his condition started with a sore throat on Sunday and that he had not been able to eat or drink since that time. He complained of discomfort when trying to swallow. The Veteran said he was at the VA Medical Center on Friday and was exposed to somebody who was coughing. The facility treated his pain with medications which resulted in some improvement with swallowing. The diagnosis was acute pharyngitis with some dysphagia. The facility advised the Veteran to follow up either at the VA or with a doctor at the clinic in the next two days. In October 2008, the Bay Pines VAMC contacted DH of Sarasota. The report of contact indicates that the Veteran sought treatment on September 9, 2008 for a condition that started on September 7, 2008. DH of Sarasota indicated that the Veteran's condition was non-emergent and that an emergency room evaluation was denied. In June 2009, the chief medical officer (CMO) of the VA Fee Basis Program opined that the Veteran's condition on September 9, 2008 was non-emergent and that VA facilities were available. Specifically, the Veteran could have sought treatment at the Bay Pines Emergency Room. The Veteran disagrees and avers that his condition was emergent because he could not swallow. The Board finds that, although the Veteran is deemed permanently and totally disabled, the evidence does not show that treatment for his condition was rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay in seeking immediate medical attention would be hazardous to life or health. See 38 U.S.C.A. § 1725(f)(1)(B). The Board stresses that the Veteran reported the onset of his sore throat and difficulty swallowing as Sunday, September 7, 2008. However, he waited until Tuesday, September 9, 2008 to seek treatment at an unauthorized facility. Further, the CMO determined that the condition was non-emergent on the date of treatment. Thus, given the delay between the onset of symptoms and the date of treatment, as well as the findings by the CMO that the condition was non-emergent, there is absolutely no indication that such treatment was rendered in a medical emergency and it could not be reasonably argued that a prudent layperson would expect delay in seeking such treatment would have been hazardous to life or health. The Board notes that during the time period in question, e.g. the date of onset of the sore throat and treatment on September 9, 2008, the Veteran was living approximately 20 miles from the VA outpatient clinic in Sarasota, Florida, 22 miles from the VA outpatient clinic in Bradenton, Florida, and about 50 miles from the Bay Pines VA Medical Center. The DH of Sarasota was located approximately 24 miles from his home. The Board finds that the Veteran had two days during which he could have sought treatment at any of the VA facilities or other nearby VA facilities. Further, the CMO indicated that the Veteran's condition was not emergent and that he could have sought treatment at the Bay Pines Emergency Room. Furthermore, the Veteran was not transported by ambulance, indicating that the Veteran either drove himself or had someone else drive him. Under these circumstances, the Board finds that VA facilities were feasibly available and that there was no attempt by the Veteran to use them on or prior to September 9, 2008. Based on the foregoing, the Board finds that the claim for payment of unauthorized medical expenses the Veteran incurred for treatment at DH of Sarasota on September 9, 2008 must be denied as his treatment was non-emergent and VA facilities were feasibly available. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this appeal, in a November 2008 decision letter, the VAMC notified the Veteran that payment had been denied for medical expenses because the care and services provided were not rendered in a medical emergency. In an April 2009 post-adjudication letter, the VAMC provided the Veteran with notice of what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The June 2009 SOC provided the Veteran with the criteria for payment/reimbursement under the Millennium Healthcare and Benefits Act, pursuant to 38 U.S.C.A. § 1725, including the definition of "emergency treatment," which was the basis for the VAMC's denial of the claim. The SOC also explained that VA facilities were available to provide the care that the Veteran required. To the extent the above notice does not meet Peligrini's content of notice requirements or the VCAA's timing requirements, the Board finds that such defect does not constitute prejudicial error in this case because of evidence of actual knowledge on the part of the appellant. In this regard, the appellant has argued that his condition was emergent. Hence, the appellant has demonstrated an awareness of the evidence necessary to substantiate a claim for reimbursement or payment of unauthorized medical expenses. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Consequently, any error in content or timing of the notice was cured by actual knowledge on the part of the appellant, and was, thus, not prejudicial. Id. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's private treatment records from DH of Sarasota and VA treatment records. Also of record and considered in connection with the appeal are various written statements provided by the appellant and his representative, on his behalf. No further VAMC action on this matter prior to appellate consideration is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the VAMC, the appellant has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which it might obtain such evidence, and the allocation of responsibilities between itself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Payment or reimbursement of unauthorized medical expenses incurred at DH of Sarasota on September 9, 2008 is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs