Citation Nr: 1332820 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-19 864 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred on March 20, 2013, at Munroe Regional Medical Center (Munroe). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1943 to October 1945. The Veteran is a former prisoner of war (POW). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 administrative decision by the VAMC located in Gainesville, Florida, which denied a claim for payment for or reimbursement of unauthorized medical expenses for treatment incurred on March 30, 2013, at Munroe. 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). FINDINGS OF FACT 1. On March 20, 2013, the Veteran contacted his VA Outpatient Clinic known as North Florida/South Georgia Veterans Health System to report back pain with radiation into the chest for at least 3 days with worsening symptoms. 2. The VA nurse advised the Veteran to seek out emergency room (ER) treatment, but told the Veteran she could not authorize VA payment of outside medical care. 3. The Veteran went for unauthorized treatment at the nearest private facility, Munroe, following which he reported to the nearest VA ER facility. 4. Resolving any doubt in the Veteran's favor, a prudent lay person would have reasonably expected that delay in seeking immediate medical attention on March 20, 2013, would have been hazardous to life or health. 5. Resolving any doubt in the Veteran's favor, a VA or other federal facility/provider was not feasibly available to provide the necessary medical care. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses for treatment for complaints severe back pain with radiation into the chest incurred on March 20, 2013, at Munroe have been met. 38 U.S.C.A. §§ 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Factual Background and Analysis The Veteran has filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Munroe Regional Medical Center on March 20, 2013. The Veteran is currently service-connected for coronary artery disease (60 percent), posttraumatic stress disorder (30 percent), tinnitus (10 percent), frostbite of the forehead and ears (10 percent), bilateral hearing loss (noncompensable), and residuals of basal cell carcinoma of the ears (noncompensable). His combined rating is 80 percent, but he has been awarded individual unemployability as of April 2003. He has received treatment for the VA outpatient clinic known as the North Florida/South Georgia Veterans Health System. The basic facts are not in dispute. On March 20, 2013, the Veteran phoned the VA Outpatient Clinic in Gainesville to report ongoing back pain with radiation into his chest. He indicated that he had experienced this back and chest pain for 3 days, but today it had worsened as was 10/10 in terms of severity. The VA nurse advised the Veteran to seek ER attention based upon his reported symptoms. She made it clear, however, that she was not able to authorize outside medical expenses. The Veteran's spouse drove him to the Munroe ER where an IV was placed and he had an EKG performed. During triage at Munroe, he was told by the health professionals that he would not be seen for two hours. Dissatisfied with that level of emergent care, the Veteran left the ER against the recommendation of the Munroe health professionals. He then presented himself at the Gainesville VAMC. The Munroe ER is approximately half the distance from the Veteran's home in The Villages, Florida than the Gainesville VAMC. Furthermore, the Veteran took the VA professional's advice to see ER treatment for the symptoms he was experiencing. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2013). In this case, although the Veteran has not explicitly claimed that his care at Munroe Regional Medical Center was authorized in advance, he has asserted that during the applicable timeframe a VA treating health professional advised him to go to the nearest emergency room for his back/chest pain. The Court of Appeals for Veterans Claims, however, has determined that "the advice of a doctor to go to a non-VA hospital is not the specific type of authorization contemplated in the regulation." Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). Although the specific regulation in Smith, 38 C.F.R. § 17.50d(a), has since been amended, it was of similar content to the current 38 C.F.R. § 17.54. Based on the foregoing, the Board must conclude that prior authorization for the private medical treatment received on March 20, 2013, was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002) based on prior authorization. Nevertheless, under 38 U.S.C.A. § 1728(a) and 38 C.F.R. § 17.120, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) For veterans with service connected disabilities. 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. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. 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) When Federal facilities are unavailable. 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. 38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2013). All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). As noted above, the Veteran has been in receipt of total disability rating based upon individual unemployability, including such disabilities as coronary artery disease, PTSD, tinnitus, frostbite, bilateral hearing loss, and skin cancer residuals. The Veteran, however, is not service-connected for a back disability, but he is service connection for a heart disability. As such, his back and chest complaints that day could be associated with a service-connected disability for the purposes of fulfilling 38 C.F.R. § 17.120(a)(1). The evidence does not suggest, nor has the Veteran contended, that he is participating in a rehabilitation program under 38 U.S.C. Chapter 31. Therefore, the threshold criteria for payment or reimbursement under the provisions of 38 U.S.C.A. § 1728 have not been met. Alternatively, to be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), all of the following conditions must be satisfied: (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 such provider 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) 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 discharged or 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 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). 38 C.F.R. § 17.1002 (2013). The above-noted criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting the 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 the provisions of 38 U.S.C.A. § 1725 reflect a legislative change in that statute, effective October 10, 2008. Specifically, the change of interest is that 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). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, "emergency treatment" is continued until such time as the Veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) 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. The regulations do not require that a veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment was 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, that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b); see also, Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009). Initially, the Board notes that the evidence of record shows that the medical treatment was provided in a non-VA emergency room and he had been enrolled in a VA health care system in the past two years. The Board notes that at the time of treatment, the Veteran had Medicare Part A insurance. On the billing statement, dated March 29, 2013, there were no payments made by the Veteran's Medicare Plan A, and the Veteran was personally liable for the cost of treatment. As to whether a medical emergency existed, the Board observes that the regulation indicates that an emergency exists if a prudent lay person would have reasonably expected that delay in treatment would have been hazardous to life or health. The Veteran contacted the VA Outpatient Clinic wherein he receives treatment to report increasing back pain with radiation into the chest. He was advised by a medical professional to see ER treatment for his symptoms. At the time of his call to the Gainesville VA treatment center, he had reported his symptoms as 10 out of 10 in terms of severity. However, based on the evidence noted herein and resolving all reasonable doubt in the Veteran's favor, the Board finds that a prudent lay person would have believed that a delay in seeking treatment would have been hazardous to the Veteran's health and that his emergency room visit on March 20, 2013, was emergent. Finally, the Board concludes that there was no VA facility that was feasibly available to the Veteran. As noted above, the Munroe ER (approximately a 1/2 hour) is half the distance from the Veteran's home than the Gainesville VA Outpatient Clinic (approximately 1 hour). The Veteran contends that his back/chest pain level would not have permitted such a long drive. The Board is aware that the Veteran left the Munroe ER and was able to make it to the Gainesville VA Clinic following an EKG and IV at Munroe. There is some indication that the once emergent situation necessitating the ER visit had passed and the Veteran went to VA once he heard of the 2 hour wait for treatment at Munroe. In light of these factors, the Board finds all reasonable doubt in the Veteran's favor and concludes that a VA facility was not feasibly available to the Veteran. Additionally, the Board appreciates the notation in the Statement of the Case, in which the North Florida/South Georgia Veterans Health System indicated that "Medical determinations, such as determinations of the need for an appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board of Veteran's Appeals [sic] jurisdiction." However, in this case, the Board is not making a medical determination such as the adequacy of the Veteran's care or treatment provided by the Munroe Regional Medical Center or any other health care provider. Rather, the Board notes here that it is the finder of fact in determining whether a certain benefit is warranted. This includes determining the credibility and weight to be given to the evidence. Such action is clearly within the Board's jurisdiction. See Buchanan v. Nicholson, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Board finds that the Veteran's assertions as to the emergent nature of his back/chest pain are consistent with the evidence of record-including the explicit direction from the VA nurse to seek ER treatment. In sum, the Board finds that it was reasonable and prudent for the Veteran to feel that a delay in seeking immediate medical attention would have been hazardous to his life or health, and that a VA facility was not feasibly available to him. Accordingly, the Board concludes that the Veteran meets the criteria for payment or reimbursement of the unauthorized medical expenses resulting from the non-VA medical treatment on March 20, 2013. The benefit sought on appeal is granted. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Munroe Regional Medical Center on March 20, 2013, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs