Citation Nr: 1336701 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 05-32 206A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement for, or payment of, unauthorized medical expenses for treatment for complaints of dizziness, abdominal pain, nausea, and vomiting incurred on June 16, 2004, at Seven Rivers Regional Medical Center. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 administrative decision by the VA Medical Center (VAMC) located in Gainesville, Florida, which denied a claim for reimbursement for, or payment of, unauthorized medical expenses for treatment incurred on June 16, 2004, at Seven Rivers. This issue was remanded by the Board for further development in April 2009 and in November 2010. Per the November 2010 Board remand instructions, the Veteran was scheduled for a Board hearing at the St. Petersburg, Florida Regional Office (RO) before a Veterans Law Judge (VLJ) in May 2012. However, he failed to report for this hearing. In an October 2013 Appellate Brief Presentation, the Veteran's representative expressed concern as to whether the Veteran received notice of this hearing given the various addresses of record. However, in the most recent March 2012 letter notifying the Veteran of a hearing scheduled on May 15, 2012, the RO used an address in Crystal River, Florida, which is the most recent address provided by the Veteran. In light of the above, the Board finds that the RO substantially complied with the November 2010 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). As the Veteran failed to report for his most recent hearing in May 2012 after being notified of the scheduled hearing at his proper address, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). In both the June 2005 notice of disagreement (NOD) and the October 2005 VA Form 9, the Veteran raised claims of entitlement to reimbursement for medical expenses incurred at Seven Rivers on July 14, 2004, and from January 20, 2005, to January 22, 2005. These claims were referred back to the agency of original jurisdiction (AOJ) in the April 2009 Board remand. To the Board's knowledge, neither claim has yet been adjudicated by the AOJ. Accordingly, the issues of entitlement to reimbursement for medical expenses incurred at Seven Rivers on July 14, 2004, and from January 20, 2005, to January 22, 2005, have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was treated at the Seven Rivers Regional Medical Center on June 16, 2004, for a nonservice-connected disability. 2. The medical evidence of record indicates that the Veteran's treatment was not 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. CONCLUSION OF LAW The criteria for reimbursement for the cost of medical treatment provided at the Seven Rivers Regional Medical Center on June 16, 2004 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1002 (pre and post January 20, 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Board notes at the outset that the United States Court of Appeals for Veterans Claims (Court) has not clarified whether the VCAA is applicable to claims involving payment or reimbursement of unauthorized medical expenses. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the Court held that the VCAA, with its expanded duties to notify and assist claimants, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 and is located in Chapter 17 of Title 38. In Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005), although not stated explicitly, the Court appeared to assume that the VCAA is applicable to a Chapter 17 claim. The Court also held in Beverly that any failure by VA to comply with the VCAA notice requirements in that case constituted non-prejudicial error. See also Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing non-prejudicial error). In any event, to the extent the VCAA is applicable, the Board finds that VA advised the Veteran of his and VA's duties under the VCAA, to include what evidence he should provide and what VA would do to assist him in the development of his claim, in a May 2009 letter. Every possible avenue of assistance has been explored, and the Veteran has had ample notice of what might be required or helpful to his case. For example, the Veteran received notice in a May 2009 letter of the criteria necessary to support his claim. He was provided opportunities to provide pertinent evidence in support of his claim and he has provided pertinent evidence and argument in response to these overtures. Further development and expending of VA's resources is not warranted. Factual Background and Analysis The Veteran is seeking entitlement to reimbursement for, or payment of, unauthorized medical expenses for treatment for complaints of dizziness, abdominal pain, nausea, and vomiting incurred on June 16, 2004, at the Seven Rivers Regional Medical Center. The Veteran asserts his entitlement to reimbursement based on two theories. First, he contends that he received prior VA authorization for the June 16, 2004 treatment. Second, the Veteran contends that regardless of whether prior authorization was granted, he is entitled to reimbursement because he sought the non-VA treatment under emergent circumstances. The Veteran specifically contends that on June 16, 2004, the treatment he received was due to the onslaught of what he perceived was a heart attack. He was experiencing chest pains, vomiting, dizziness and euphoria. He contends that his wife called the VAMC in Gainesville and told that due to the distance between their home and the Gainesville VAMC, that they should go to the nearest emergency facility which was the Seven Rivers Regional Medical Center. At Seven Rivers he received treatment and was informed that his symptoms resulted from a reaction to medication. The record reflects that VA received the Veteran's claim well within the 90 days of the Veteran's discharge from the Seven Rivers Regional Medical Center. In a July 2004 decision, the VAMC in Gainesville denied his claim based on its assessment that the treatment that was rendered was "non-emergent". Pertinent legal authority provides for the furnishing of care by VA hospitals, as well as reimbursement for private medical care when such is authorized by VA. Generally, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing care or services required, VA may contract with non-VA facilities for care. As noted above, the Veteran contends that prior to going to the Seven Rivers Hospital, his wife called the VAMC in Gainesville and was instructed that due to the distance between their home and the Gainesville VAMC, that they should go to the nearest emergency facility which was the Seven Rivers Hospital. The Board however points out that the advice of a doctor to go to a non-VA facility is not the type of authorization contemplated by VA regulation (see 38 C.F.R. § 17.54). Rather, specific formalities must be complied with. See Smith v. Derwinski, 2 Vet. App. 378, 378-379 (1992). There is simply no evidence in the record that the Veteran's treatment received at a non-VA facility (Seven Rivers Regional Medical Center) on June 16, 2004, was authorized in advance as contemplated by the regulations. Thus, the Board must conclude that prior authorization for the private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54 (2013), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002). As the Board has determined that there was no prior approval of treatment at a non-VA facility, it must now consider whether the Veteran is eligible for payment or reimbursement for services not previously authorized. Under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 , VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities where: (a) treatment was for (1) an adjudicated service-connected disability; (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability; (3) any disability of a veteran who is permanently and totally disabled as a result of a service-connected disability; (4) for any illness, injury or dental disability in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31; and (b) such treatment was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.52, 17.120 (2013). Failure to satisfy any one of the four criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private hospital. See 38 C.F.R. § 17.120 (2011); Zimick v. West, 11 Vet. App. 45, 49 (1998). Also, no reimbursement 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 (2013). 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. §§ 17.1000-1008 (2013). Here, however, the Veteran is in receipt of a total disability rating for individual unemployability (TDIU), which has been in effect from December 22, 2003. Thus, the Board finds that the Veteran satisfies the initial criteria of 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 in that he has a total rating that is permanent in nature, and consideration of 38 U.S.C.A. § 1725 is unnecessary. Thus, the Board will focus its analysis on whether treatment administered on June 16, 2004, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and whether VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 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). 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 (2013). Under the provisions of 38 C.F.R. § 17.53 (2013), 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 (2013). As noted above, the Veteran presented to the Seven Rivers Regional Medical Center with complaints of dizziness, abdominal pain, nausea, and vomiting on June 16, 2004. The Veteran was treated for, and was then informed that his symptoms resulted from a reaction to medication. Payment of the medical expenses incurred on this date is not in dispute. The Emergency Room records from the Seven Rivers Regional Medical Center noted that the Veteran had a 3 day history of nausea, vomiting, weakness, and feeling tired and run down. He had no complaints of injury, trauma or pain. He did not offer any history of shortness of breath, chest pains, heart palpitations or productive cough. All laboratory tests conducted were normal. A physical examination was also normal. The diagnosis was nausea and vomiting and the Veteran was advised to take anti-nausea medication and follow-up with his primary care provider (the VAMC in Gainesville). He was considered stable upon his discharge. In a July 2004 correspondence a Fee Clinician review the medical documentation from the Veteran's June 16, 2004 admittance at the Seven Rivers Hospital and determined that the Veteran's episode of care was non-emergent. The Board finds that, although the Veteran is deemed permanently and totally disabled, the evidence does not show that treatment for his disability 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. In this regard, the Board has disregarded the conclusions of the Fee Clinician as the determination of whether treatment was rendered in a medical emergency must be made from the perspective of a prudent layperson, and not a person with medical expertise. However, in light of the evidence of record, the Board finds that a reasonably prudent person would not have believed this was a medical emergency pursuant to this definition. Although the Veteran has asserted that he believed he was having a heart attack, the Board finds the most credible evidence as to the Veteran's state of mind at the time of the treatment are the contemporaneous report of symptoms made to the health care providers on June 16, 2004. At that time, it was noted that the Veteran had a 3 day history of nausea, vomiting, weakness, and feeling tired and run down. No indication was noted that such symptoms had significantly increased in severity in the hours or even day leading up to his admission. The emergency room record reflects that a thorough list of symptoms was elicited from the Veteran, but he did not offer any history of shortness of breath, chest pains, heart palpitations or productive cough, nor did he provide any indication that he believed he was suffering a heart attack. For these reasons, the Board must find the Veteran's subsequent assertions that he believed he was having a heart attack not credible. Furthermore, given that he reported experiencing his symptoms for 3 days without any significant change or increase in symptoms in the hours leading up the his admission, the Board concludes that the situation was not 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. The Board, therefore, finds that the preponderance of the evidence is against a finding that the Veteran's June 16, 2004 treatment at the Seven Rivers Regional Medical Center was of an emergent nature. Absent such a finding, the criteria for payment or reimbursement of the cost of that treatment are not met. Therefore payment or reimbursement is not warranted, and the appeal is denied. The Board has also considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to reimbursement for, or payment of, unauthorized medical expenses for treatment for complaints of dizziness, abdominal pain, nausea, and vomiting incurred on June 16, 2004, at Seven Rivers Regional Medical Center is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs