Citation Nr: 1334139	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-17 039	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs North Florida/South Georgia Veterans Health System in Gainesville, Florida


THE ISSUE

Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross.


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from January 1959 to March 1962.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2013 determination by the Department of Veterans Affairs (VA) North Florida/South Georgia Veterans Health System (VHS) in Gainesville, Florida, which denied the Veteran's claim for reimbursement or payment for unauthorized medical services rendered on October 10 and 11, 2012.  


FINDINGS OF FACT

1.  The Veteran received medical care on October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross for a nonservice-connected right inguinal hernia.  

2.  On October 10 and 11, 2012, the Veteran's right inguinal hernia 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 life or health and the medical treatment was not for a continued medical emergency. 

3.  The Veteran has coverage under Medicare Part A.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized medical expenses incurred at October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross have not been met.  38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.100-17.1002 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 representative of any information, and any 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 a letter dated in April 2013, the Veteran was notified of the claimant was advised of the information necessary to substantiate the claim at issue.  He was informed of his and VA's respective obligations for obtaining specified different types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  He was informed of the prudent layperson emergency care standard and the revisions in the law affecting 38 U.S.C.A. §§ 1725.  This notice was provided to the Veteran prior to the initial adjudication of the claim.  

Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  All records pertaining to the treatment at issue have been obtained.  VA treatment records dated immediately before the treatment at issue have been obtained as well.  A VA clinician reviewed the claim in April 2013 and the clinician provided an opinion as to whether the care provided by the private medical facility in October 2012 was emergent. 

Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim.  

Legal Criteria

Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1553 (1999).  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 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 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.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 v. Derwinski, 1 Vet. App. 334 (June 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 notes that 38 U.S.C.A. § 1725 was amended in February 2010.  See Pub. L. No. 111-137, § 1(a), (b), 123 Stat 3495 (2010).  However, the change in law is not applicable to the current appeal and addresses certain circumstances where a veteran had third-party insurance that would pay a portion of the costs associated with emergency treatment in a private facility but the Veteran would be responsible for the remainder of the costs.  




Analysis

The criteria for payment or reimbursement of unauthorized medical expenses incurred at October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross have not been met.  38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002.  Review of the record shows that at the time of the Veteran's medical treatment on October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross, service connection was not in effect for any disabilities.  At the time of the treatment, the Veteran was enrolled in the VA healthcare system and had received care within 24 months of October 2012.  See the September 24, 2012 VA general surgery consultation. 

However, the Board finds that the weight of the evidence demonstrates that the treatment provided on October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross was not on an emergent basis, the Veteran's condition was not of such a nature that any delay in seeking immediate medical attention would have been hazardous to life or health, and was not for a continued medical emergency.  

VA primary care treatment records dated September 24, 2012 indicate that the Veteran sought medical treatment for a right sided direct hernia.  It was noted that the hernia did not reduce but the Veteran could not walk or sit because of the hernia.  The Veteran was seen in general surgery.  He reported having the symptomatic right inguinal hernia for over a month.  Examination revealed a right inguinal hernia defect, reducible.  The diagnosis was right inguinal hernia.  He was scheduled for a herniorraphy at VA on November 1, 2012.  

VA general surgery records dated September 25, 2012 indicate that the Veteran was seen again in general surgery and he was upset with the surgical department due to the delay in time for the treatment and his pain level had been increasing in the last two weeks.  Due to the 30 day wait period, the Veteran made a request for fee based surgery.  VA records indicate that the request was sent for medical review.  It was noted that the Veteran was ambulatory and the provisional diagnosis was inguinal hernia, without obstruction or gangrene.  

On October 5, 2012, VA medical review denied the request for the fee-based care services.  Medical review stated that the Veteran should either be seen within VA or he should use other means for payment.   

Review of the record reveals that the Veteran sought treatment at the emergency department at the Mayo Clinic Health System in Waycross on October 10, 2012.  Emergency room records indicate that the chief complaint was groin pain and his stated complaint was pain in the right side.  He reported that he had been diagnosed with a right inguinal hernia and he was awaiting surgery at VA.  He reported that he developed severe unremitting lower abdominal pain with nausea.  The history of the present illness indicated that the Veteran had right inguinal pain and he was seen at VA recently and they could not treat him until November and he was having a lot of pain.  It was noted that the duration of the symptoms was 24 hours, the severity was moderate, and the quality was dull.  Physical examination revealed that the Veteran was in mild distress.  The Veteran reported having minimal pain in the right scrotom.  CT scan of the abdomen and pelvis confirmed the diagnosis and showed no evidence of incarceration.  The Veteran was admitted to the hospital for surgical repair; he was in stable condition.  The preoperative diagnosis was right inguinal hernia. 

The Veteran underwent a right inguinal herniorrhaphy with mesh on October 11, 2012.  The discharge summary indicates that the Veteran had presented with significant right inguinal pain and herniation.  He had been seen previously at VA and he continued to have increasing pain not controlled by oral analgesics.  The Veteran was discharged that same day in stable and improved condition.  

An April 2013 review of the claim for reimbursement by VHS indicates that the Veteran was scheduled for the hernia repair on November 1, 2012 and the Veteran called VA on October 3, 2012 and canceled the surgery at VA citing transportation problems.  The Veteran went to an emergency room and was admitted and had the elective surgery.  The hernia was not obstructed or incarcerated.  The appeal was denied.  VHS indicates that the Veteran was covered by Medicare Part A.   

The Board concludes that the weight of the evidence establishes that the Veteran's condition was not of such a nature that any delay in seeking immediate medical attention would have been hazardous to life or health and the medical care on October 10 and 11, 2012 was not for a continued medical emergency.  The Board finds that delay in seeking immediate medical attention would not have been hazardous to the Veteran's life or health.  A prudent layperson who possesses an average knowledge of health and medicine and who was experiencing the symptoms complained of by the Veteran may not have reasonably expected the absence of immediate medical attention to result in placing his health in serious jeopardy, or experiencing serious impairment to bodily functions, or having serious dysfunction of any bodily organ or part.  

The evidence shows that the Veteran sought treatment for hernia repair.  He had initially consulted with VA and the surgery was scheduled for approximately 5 weeks from the day of the consultation.  He was not hospitalized at that time and the surgery was not scheduled for an earlier date.  There is no medical evidence that the Veteran had any life-threatening or emergent complications due to the right inguinal hernia that would have required emergent care prior to November 1, 2012.  The VA treatment records indicate that there was no evidence of obstruction or incarceration of the hernia.  The Veteran made a request for approval of fee based care to repair the surgery and VHS denied this request on October 5, 2012.  This evidence weighs against the claim and demonstrates that the medical treatment for the right inguinal hernia was not emergent.  

The private medical records show that the Veteran reported having severe pain and/or significant pain due to the hernia when he sought treatment at the private hospital in October 10, 2012.  However, the emergency room records describe the Veteran as being in mild distress.  There was no evidence of incarceration of the hernia or any serious complications.  The hernia repair was not done immediately but was performed the following day.  When the Veteran was admitted to the hospital, it was noted that he was in stable condition.  The Veteran was released from the hospital on the same day as the surgery.  This evidence weighs against the claim and demonstrates that this was not a medical emergency and a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  

The Board notes that the prudent layperson standard requires consideration of whether, under the circumstances present at the time the Veteran sought treatment at the private facility, a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to health or life.  See 38 C.F.R. §§ 17.120, 17.1002(b); Swinney v. Shinseki, 23 Vet. App. at 264.  It is not essential that the later medical work-up confirm the presence of a medical emergency.  Swinney at 264.  

The evidence reported on the day of the hospitalization does not indicate that a prudent person would have thought that a life or health threatening emergency was present, or that the Veteran in fact thought so.  The evidence indicates that the Veteran sought medical treatment at the emergency room because his hernia pain was not responding to oral pain medication and the pain was worsening.  Nothing in any of his statements indicates that he believed that the absence of immediate medical attention would place his health in serious jeopardy, cause serious impairment to bodily functions, or cause serious dysfunction of any bodily organ or part.  Thus, under either 38 U.S.C.A. § 1725, the prudent layperson standard for a medical emergency has not been met.  The claim is denied on this basis.  

The Board accepts that the Veteran was in pain at the time of the hospitalization.  Even if the Board were to conclude that a medical emergency was present, review of the record further shows that the Veteran has coverage under Medicare Part A.  Under 38 C.F.R. § 17.1002(g), reimbursement may not be provided if the veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment.  A "health-plan contract" includes Medicare.  38 C.F.R. § 17.1001(a)(2) (2013) (an insurance program under 42 U.S.C.A. § 1395; this includes Medicare).  As noted above, the criteria for reimbursement of unauthorized medical expenses are conjunctive.  Thus, the claim is denied on this basis.  

In conclusion, the Board finds that the criteria under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002 for payment or reimbursement of unauthorized medical expenses resulting from the medical treatment on October 10 and 11, 2012 have not been met and the Veteran is not entitled to reimbursement of the medical expenses incurred at Mayo Clinic.  The appeal is denied.  The preponderance of the evidence is against the Veteran's claim, so there is no reasonable doubt to resolve in his favor, and the claim must be denied.  38 C.F.R. §§ 3.102, 4.3. 


ORDER

Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on October 10 and 11, 2012 at the Mayo Clinic Health System in Waycross is denied.



____________________________________________
M. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs