Citation Nr: 1333389	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  07-12 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York



THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical services provided at the Bassett Healthcare Sidney Urgent Care Clinic on March 15, 2006, and April 10, 2006.



REPRESENTATION

Appellant represented by:	Allan T. Fenley, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from March 1998 to March 2002 and from January 2003 to March 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2007 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Canandaigua, New York that denied reimbursement for medical services provided to the Veteran at Bassett Healthcare Sidney Urgent Care Clinic on March 15, 2006, and on April 10, 2006.

In his Substantive Appeal, received in March 2007, the Veteran requested a hearing before the Board at the RO ("Travel Board" hearing).  A Travel Board hearing was duly scheduled for August 30, 2010; however, prior to that hearing the Veteran submitted a request through his representative that the hearing be cancelled.  His hearing request is accordingly deemed to be withdrawn.  38 C.F.R. § 20.704(e) (2013).

The Board remanded the claim in March 2012 for additional development, which has been accomplished.  Stegall v. West, 11 Vet. App. 268 (1998).   


FINDINGS OF FACT

1.  The Veteran received medical treatment at the Bassett Healthcare Sidney Urgent Care Clinic on March 15, 2006, and April 10, 2006, for symptoms related to a service-connected disability.

2.  The treatment provided by Bassett Healthcare Sidney Urgent Care Clinic was not authorized by VA.

3.   The Veteran's symptoms at the time were not such that a prudent layperson would have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health.
CONCLUSION OF LAW

The criteria for payment of or reimbursement for medical expenses arising from treatment provided to the Veteran by the Bassett Healthcare Sidney Urgent Care Clinic on March 15, 2006, and April 10, 2006, are not met.  38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.121, 17.1002 (2013).   


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), established an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of the evidence he or she should submit and of the assistance VA will provide to obtain evidence on the claimant's behalf.  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  

There is no indication in the VCAA that Congress intended the Act to revise the unique and specific third-party claim provisions of Chapter 17, Title 38 of the United States Code.  See 38 C.F.R. § 17.123-17.132; see also Barger v. Principi, 16 Vet. App. 132, 138 (2002).  

The claim on appeal was filed by the medical provider as claimant; the appeal has been pursued by the Veteran.  The January 2007 decision on appeal provided the Veteran with the text of the regulation in question and the reasons why the claim had been denied; the Agency of Original Jurisdiction subsequently readjudicated the claim in March 2007 and May 2012.

In any event, the Veteran was provided VCAA notice in May 2012 and the claim was thereafter readjudicated.  The Veteran has not identified any prejudice due to error in the content or timing of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

As noted in the Introduction, the Veteran was scheduled for a hearing before the Board but he cancelled that request.      

The Veteran has been afforded adequate process under 38 U.S.C.A. § 7105 in regard to his appeal, and all relevant medical records - in this case, the records from Bassett Healthcare documenting the medical treatment for the period under contention - have been obtained.  The Veteran has not identified any existing evidence that should be procured before the issue on appeal is adjudicated, and the Board is unaware of any such outstanding evidence.  

For the reasons set forth above, no further notification or assistance is necessary, and the Veteran is not prejudiced by adjudication of his claim at this time.  

Legal Principles

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, or treatment had been or would have been refused.  38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120.

The Court has held that all three of these requirements must be met before payment is authorized.  Zimick v. West, 11 Vet. App. 45, 49 (1998).

Per the implementing regulation to 38 U.S.C.A. § 1728, "in a medical emergency" is defined as emergency treatment not previously  authorized including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for use after the emergency condition is stabilized and the patient is discharged) was rendered in a medical emergency of such 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 is met by an emergency medical situation manifesting itself by acute symptoms of such severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine would 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.  38 C.F.R. § 17.120(b).

Emergency care not covered under the provisions of 38 U.S.C.A. § 1728(a) as described above may qualify for reimbursement under the provisions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1003.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and will be referred to as the "Millennium Bill Act" in this discussion.

To qualify for reimbursement under the Millennium Bill Act as articulated in 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment (including medical services, professional services, ambulance services, ancillary care and medication (including a short course of medication related to and necessary for the treatment of the emergency condition that is provided directly to the patient for  use after the emergency condition is stabilized and the patient is discharged) will be made only if all of the following conditions are met:

(a) The emergency services were provided in a hospital emergency department or 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 that VA has an agreement with to furnish health care services for veterans 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 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)  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; 

(e) The veteran is financially liable to the provider of emergency treatment for that treatment;

(f) The veteran had no coverage under a healthcare 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 failure by the veteran or the 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 of failure to exhaust appeals of the denial of payment);

(g) If the condition for which 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 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,

(h) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment.

The criteria above are conjunctive, not disjunctive; accordingly, all eight criteria must be met.  Melson v. Derwinski, 1 Vet. App. 334 (1991).

The action by the VAMC was based on the clear meaning of 38 U.S.C.A. § 1725 (2002) at the time.  Since that action, Congress has significantly amended 38 U.S.C.A. § 1725 effective from February 1, 2010.  The amendment provides that VA may provide reimbursement for emergency treatment when the veteran has a third-party payer, and also provides that payment may be made for treatment before the date of enactment of the amendment if the circumstances applicable to the veteran make it appropriate to do so.  See Expansion of Veteran Eligibility for Reimbursement by Secretary of Veterans Affairs for Emergency Treatment Furnished in a Non-Department Facility, Pub. L. No. 111-137, Stat. 3495.

Effective May 21, 2012, VA amended its regulations to be consistent with the Statute cited above.  The amended Regulation provides that payment may be considered even if an applicant has a third-party payer, and also provides that a claim may be filed as late as one year after May 21, 2012.  See amended 38 C.F.R. §§ 17.1001(g) and 17.1004(f).  The amended Regulation also specifies that if the claimant has contractual or legal recourse against a third-party payer, then VA becomes the secondary payer, but will not reimburse a claimant for deductible, copayment or similar amount the veteran owes the third party.  See amended 38 C.F.R. § 17.1005(e) and (f).  However, in the present case the Veteran does not have a third-party payer, so the amendments to the regulation are not applicable.   

Evidence and Analysis

The Veteran is service-connected for lumbar strain, rated as 40 percent disabling, and for left leg paresthesias associated with lumbar strain, rated as 20 percent disabling.

Telephone records associated with the file show the Veteran called the VA Upstate New York Health Care System (HCS) at 9:36 p.m. on March 14, 2006, to complain of back and groin pain for several days.  The Veteran stated that he planned to go to the local emergency room and that he understood this was not authorized for payment by VA.

The Veteran was treated at Bassett Urgent Care on February 15, 2006.  Treatment notes from that provider state the Veteran presented complaining of lumbar pain radiating down the left hip and leg for the past 1.5 years.  He was currently on a regimen of morphine, but stated this was not providing relief.  The Veteran was provided two medications and advised to follow up with VA the following day.  The discharge diagnosis was chronic low back pain.

The Veteran was treated again by Bassett Urgent Care on April 10, 2006.  Treatment records show the Veteran presented complaining of lower back pain and left leg pain since the previous morning; this pain had been intermittent since his previous visit on March 15.  The Veteran received a prescription for several medications and was again advised to follow up with VA.  The discharge diagnosis was back pain with sciatica.

The Health Insurance Claims Forms submitted by Bassett Healthcare to VA for payment of treatment provided to the Veteran on March 15 and April 10, 2006, show the treatment provided on both days was for HCPCS code 99213 (office or outpatient visit for management of an established patient).  The billed charge on each day was $72.00.  No insurer was listed other than VA.  

In his claims for reimbursement for both services, dated in December 2006, the Veteran asserted he could not use the VA medical facility at Bainbridge because it was closed, and Bassett Healthcare was the closest medical facility to his house. The Albany VAMC was 1 hour and 45 minutes away and the Veteran was unable to drive that distance.

In January 2007 the VA Fee Basis Unit reviewed the charge from March 15, 2006, and determined that the service was for treatment of a service-connected disability and was provided by an urgent care center.  However, the situation was not an emergency (as determined by a prudent layperson) and VA was available to provide the service.  The Fee Basis Unit also noted the Veteran had been advised the day prior to the treatment that the service would not be covered unless he went to VA.  Accordingly, the claim was denied because the service was not urgent and VA was available. 

Also in January 2007, the VA Fee Basis Unit reviewed the April 10 charge and similarly determined that situation also was not an emergency and that VA was available to provide the service.  The Fee Basis Unit stated it was unclear why the Veteran had not gone to VA for treatment, noting he had gone to the same provider on March 15.  Accordingly, the April 10 claim was also denied because the service was not urgent and VA was available. 

In his Notice of Disagreement, received in February 2007, the Veteran asserted he knew that a VA facility was available in Albany, but he was physically unable to drive that distance and to then sit in an emergency room for more than one hour waiting to be called.

Review of the evidence above shows the services provided to the Veteran by Bassett Urgent Care were for treatment of symptoms related to his service-connected back disability.  However, it does not appear that on either occasion the Veteran was experiencing an emergency as defined in the applicable regulations.  The Veteran asserts that he was in severe pain, but he does not assert that he reasonably believed at the time that the absence of immediate medical attention would result in placing his health in serious jeopardy.  In that regard, the Veteran is shown to have discussed his complaints with VA the day prior to seeking private treatment but he waited until the following day to actually seek treatment, after specifically acknowledging that VA would not cover such expense.  This supports a conclusion by the Board that the Veteran did not believe at the time that a delay in seeking immediate attention would have been hazardous to life or health.  

The Veteran has not asserted that he reasonably believed he needed immediate treatment to preclude serious jeopardy; he has merely asserted that he was in too much pain to go to the nearest available VA facility on those days, so he chose to go to a local non-VA provider instead.  However, the regulation clearly states that no reimbursement of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities; see 38 C.F.R. § 17.130.     

In sum, a prudent layperson would not have felt that the 1.75 hour drive to Albany VAMC would have been hazardous to life or health.  The Board concludes the situation was not a medical emergency as prescribed in the regulations cited above.  Because the Veteran does not meet the foregoing criterion, payment of or reimbursement for his treatment by a non-VA provider is prohibited.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Payment or reimbursement of unauthorized medical services provided at the Bassett Healthcare Sidney Urgent Care Clinic on March 15, 2006 and April 10, 2006, is denied.


____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs