Citation Nr: 1336347 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-11 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at a private facility on August 7 and August 11, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from February 1958 to May 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued by the Department of Veterans Affairs (VA) Medical Center (VAMC) in Bay Pines, Florida, which denied payment for eye surgery received at a private facility on August 7 and August 11, 2008. The Veteran provided testimony during a hearing before the undersigned at the St. Petersburg, Florida, Regional Office (RO) in December 2009. A transcript of the hearing is of record. The Board remanded the claim in May 2010 for additional development. The Board again notes that the Veteran contends that he was not told, prior to his surgery, that a prior authorization was required for treatment at non-VA facilities, at VA expense. He further contends that VA doctors erroneously told him that nothing could be done for the cataract in his right eye. These are essentially claims predicated on negligence or a wrongful act or omission of a VA employee. The regulations provide that each person who makes such a claim shall be furnished a copy of Standard Form 95, Claim for Damage, Injury, or Death, and advised to submit the completed form directly to the VA Regional Counsel having jurisdiction of the area. 38 C.F.R. § 14.604 (2013). The Board does not have jurisdiction over such claim and it is, therefore, referred to the Bay Pines VAMC for appropriate action. 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. The Veteran is in receipt of a 100 percent disability rating for bilateral hearing loss; he has been found to be permanently and totally disabled due to a service-connected disability. 2. The Veteran incurred medical expenses at St. Luke's Cataract and Laser Institute, following right eye cataract surgery; this treatment was not authorized by VA. 3. The services provided by St. Luke's Cataract and Laser Institute on August 7 and August 11, 2008, were not rendered due to an emergency. CONCLUSION OF LAW The criteria for payment of or reimbursement for medical expenses the Veteran incurred at St. Luke's Cataract and Laser Institute on August 7 and August 11, 2008, are not met. 38 U.S.C.A. §§ 1703, 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.52 , 17.54, 17.120-132, 17.1000-1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided all required notice in an August 2010 letter. Although this letter was sent after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of the letter. In this regard, the Board notes that following the provision of the required notice, the Veteran did not submit any additional evidence to the VAMC or identify any additional evidence that could be obtained to substantiate the claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that VA's duty to assist the Veteran has also been satisfied. The relevant VA and private medical records have been obtained. An examination is not required here because the medical evidence currently of record is sufficient to decide the claim. There is no indication in the record that additional evidence relevant to the issue decided herein is available. During the December 2009 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The issue on appeal was previously before the Board in May 2010, when it was remanded for additional development. In accordance with the remand instructions, the Veteran was provided with the August 2010 notice letter, the outstanding VA treatment records were obtained and associated with the claims file, and a supplemental statement of the case was issued in August 2010. Since the record reflects compliance with the May 2010 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Analysis The Veteran is seeking payment of or reimbursement for expenses associated with right eye cataract surgery and treatment he incurred on August 7 and August 11, 2008, at a private facility. The Bay Pines VAMC denied the claim based on determinations that there was no VA prior authorization for the Veteran's treatment, the treatment was not rendered for an emergent condition, and that a VA facility was available. The Veteran is in receipt of a 100 percent disability rating for bilateral hearing loss and is considered to be permanently and totally disabled due to a service-connected disability. Hence, he is eligible, in certain circumstances, for the authorization of non-VA medical care, pursuant to 38 C.F.R. § 17.52(a)(1)(i). Entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility, under 38 U.S.C.A. § 1728, requires 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; and (b) The services were 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; 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. 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120 (2013); see also Zimick v. West, 11 Vet. App. 45, 49 (1998). 38 U.S.C.A. § 1728. All three statutory requirements (a, b, and c) must be met before the reimbursement or payment may be authorized. See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993). Also, no reimbursement for or payment 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. As a preliminary matter the Board notes that the Veteran does not contend that authorization was requested prior to receiving the private services, and there is no evidence of record suggesting that any such authorization was given. In addition, an application was not made to VA within 72 hours after the hour of admission or treatment. Therefore, the Board finds that the medical services received on August 7 and August 11, 2008, were not authorized. See Smith v. Derwinski, 2 Vet. App. 378 (1992); 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. In this case, the Veteran sought VA treatment for blurry vision as the result of a cataract in his right eye in March 2008. Following an examination, the Veteran was informed that his cataract was inoperable at that time. The optometrist documented that he explained the symptoms and progression of cataracts, and that the was advised to return to the clinic if his symptoms increased. Without obtaining prior authorization or informing VA of his intentions, the Veteran then sought a second opinion at St. Luke's Cataract and Laser Eye Institute. In an August 2008 letter, the private treating physician stated that on August 7, 2008, the Veteran presented with complaints of decreased vision in the right eye and difficulty with driving and glare. His best-corrected vision was 20/40 in the right eye and 20/20 in the left eye. The slit lamp examination revealed a clear anterior segment of the eye with the exception of a maturing cataract in the right eye. As the Veteran was complaining of difficulty driving and with glare, the physician felt it was medically necessary to perform the cataract extraction on August 11, 2008. The surgery was performed without complication. During the Board hearing, the Veteran stated that he did not know that he needed to obtain prior authorization for his right eye cataract treatment and surgery and that he felt it was necessary because he was having difficulty driving at night. He also stated that he was told by the VA optometrist that his cataract was inoperable at that time and may never reach a level where it would be considered operable. A VA Chief Medical Officer reviewed the relevant VA and private treatment records as well as the Veteran's contentions and concluded that the Veteran's right eye surgery was elective and non-emergent. Moreover, the opinion stated that VA facilities were available to provide the care needed and to perform the surgery, once it was warranted according to the VA optometrist. The Board finds no indication that the private treatment provided in this case was rendered in a medical emergency. The regulations hold that this standard is met by 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. The Board finds that it cannot be reasonably argued that a prudent layperson would expect that a delay in seeking the right eye cataract extraction and treatment would have been hazardous to life or health. In this case, the Veteran's vision at the time of the private treatment was best corrected to 20/40. There is no indication that he was in physical distress and the private treatment records do not indicate that the Veteran's situation was emergent. VA determined his cataract to not be severe enough to warrant extraction at that time. While he complained of difficulty driving with glare, especially at night, this does not mean that his condition was emergent at the time he obtained the surgery. Moreover, the VA optometrist did not indefinitely refuse extraction of the cataract, but rather stated that it was not yet to the severity considered to be operable. This is noted in the treatment records and the Veteran acknowledged this during his testimony before the Board. The purpose of these statutes is to provide payment of or reimbursement for medical expenses incurred in emergency situations (or reasonably perceived emergency situations) where VA or government facilities are not feasibly available- not to provide payment for ongoing non-emergent care or when a patient would prefer to have care given sooner than VA considers medically necessary. Under the circumstances of this case, the Board finds that the claim for payment of or reimbursement for unauthorized medical expenses at St. Luke's Cataract and Laser Institute on August 7 and August 11, 2008, must be denied. In reaching this conclusion, the Board has considered 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). ORDER Payment or reimbursement of unauthorized medical expenses incurred for right eye cataract surgery and treatment at St. Luke's Cataract and Laser Institute on August 7 and August 11, 2008, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs