Citation Nr: 1337508 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-18 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Malcom Randall VA Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization on September 4, 2009 at Halifax Health Medical Center (HHMC). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs Medical Center (VAMC) in Gainesville, Florida, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by HHMC on September 4, 2009 was denied. In the March 2010 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge to be held at the local VA office. In a subsequent letter sent to the Veteran in April 2011, the RO informed the Veteran of a Board hearing scheduled in June 2011. The Veteran failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2012). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. At the time of the September 2009 private medical treatment received at HHMC, the Veteran had been awarded a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU). 2. On September 4, 2009, the Veteran received medical treatment at HHMC, a non-VA hospital, that was not previously authorized by VA. 3. The medical care the Veteran received on September 4, 2009 was for a condition that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health. 4. For the medical care the Veteran received on September 4, 2009, there were no VA medical facilities feasibly available and an attempt to use them beforehand would not be reasonable. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for payment or reimbursement of the unauthorized medical expenses incurred on September 4, 2009 at HHMC. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.52(a), 17.120, 17.1000-17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the claim on appeal being addressed herein have been properly developed and no further assistance to the Veteran is required in order to comply with the duty to notify or assist. This case concerns a legal determination of whether the appellant is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§ 1725 or 1728. For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits do not apply. 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 Barger v. Principi, 16 Vet. App. 132, 138 (2002) (involving waiver of recovery of overpayment claims), the U.S. Court of Appeals for Veterans Claims (Court) held that the provisions of the VCAA are not applicable to statutes and regulations which concern special provisions relating to VA benefits, and those statutes and regulations contain their own notice provisions. The provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the appellant has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132. As the Board is granting the benefit sought on appeal, a discussion of VA's duties to notify and assist is not necessary. Regardless, a December 2009 notification letter complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim for payment and reimbursement of unauthorized medical expenses, and the relative duties of VA and the claimant to obtain evidence. Payment or Reimbursement of the Unauthorized Medical Expenses In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54 (2013); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52. The admission of an appellant to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see Malone, 10 Vet. App. at 541; see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54. In the present case, the evidence does not show that the Veteran sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred on September 4, 2009. The record also does not indicate that the Veteran may have contacted VA within 72 hours of the initial care at HHMC. Accordingly, the Board must conclude that prior authorization for the private medical treatment received 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). When the veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728 (West 2002 & Supp. 2012). Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. Initially, the Board notes that under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. However, in this case, section 1725 relating to treatment of nonservice-connected disorders does not apply because the Veteran has been granted TDIU, as explained further below. See 38 U.S.C.A. § 1728(a); see also 38 C.F.R. §§ 17.1000, 17.1002(i). Failure to further consider section 1725 is of no consequence here, as the definition of what constitutes "emergency treatment" under either 38 U.S.C.A. § 1725 or § 1728 is now identical. In light of the fact that a TDIU (a total disability rating) has been awarded to the Veteran, the applicable law in this case is 38 U.S.C. § 1728. Prior to October 10, 2008, Section 1728(a), Title 38, United States Code, provided that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such 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 non service-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; and (3) Department 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 C.F.R. § 17.120. Under the new version of 38 U.S.C.A. § 1728, the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability, etcetera; however, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to the word "shall." In addition, and most importantly, the new law expands the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or 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 (C) until-- (i) 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. See 38 U.S.C.A. § 1725 and § 1728. All three of these statutory requirements must be met before any payment may be authorized. See Fritz v. Nicholson, 20 Vet. App. 507 (2006); see also Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone at 544. That is, these criteria under 38 U.S.C.A. § 1728 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); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As previously reported, the Veteran's claim for payment or reimbursement of unauthorized, private medical expenses associated with treatment provided to the Veteran at HHMC on September 4, 2009, was primarily denied because it was found that the Veteran's condition for which he received treatment was not emergent, and that he could have sought treatment at a VA facility. Thus, the crux is whether the treatment (or the need for said treatment) was 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 whether 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. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120(b), (c) (2013). The Court has held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009). The Court has noted that when weighing the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent, the Board may consider objective evidence. Similarly, the Board may consider evidence regarding whether the treatment ultimately rendered was for an emergent condition. Id. at 265-66. The Board has considered, under the totality of circumstances present at the time the Veteran received treatment on September 4, 2009 at HHMC, whether a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to his health or life. See Swinney, 23 Vet. App. at 264. For the reasons set forth below, the Board finds that payment or reimbursement is warranted for the care provided by HHMC on September 4, 2009. Preliminarily, the Board notes that the Veteran resided in Port Orange, Florida, at the time of his emergency treatment. He sought treatment in the emergency room of HHMC on September 4, 2009. HHMC is located in Daytona Beach, Florida, approximately 8 miles from the Veteran's residence. The nearest VA medical treatment facility capable of emergency treatment is in Gainesville, Florida, approximately 114 miles away from the Veteran's residence. At the time of the Veteran's private medical care, service connection was in effect for posttraumatic stress disorder (PTSD) and hypertension, and he was receiving a TDIU due to his service-connected disabilities. The record reflects that, six months prior to the private medical treatment at HHMC, the Veteran was diagnosed with left inguinal hernia at a VA clinic. A VA treatment record from August 2009 indicated the Veteran's complaint of a painful left groin bulge. He was assessed with symptomatic left inguinal hernia, reducible, which was planned to be repaired in four weeks. In the October 2009 notice of disagreement, the Veteran stated that he was told to seek treatment again if the pain persisted. Approximately one week later on September 4, 2009, the Veteran sought emergency treatment at HHMC. The admission report documented the Veteran's complaint of intermittent pain since he was diagnosed. At the time of admission, the Veteran reported severe pain of 10 on a scale of one to 10, which was more severe than the pain he experienced a week prior, and complained of blood in the urine that morning. After a comprehensive examination, the Veteran was diagnosed with reducible left inguinal hernia and was given medication for the pain. He was advised to follow up with a surgeon and to return if the pain increased. The Veteran was then discharged. Less than a week later, on September 10, 2009, the Veteran was admitted to the Malcom Randall VA Medical Center in Gainesville, Florida for complaints of severe pain and underwent a left inguinal hernia repair the following day. After a review of the evidence, lay and medical, the Board finds that in this case a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. As described above, the nature and severity of the Veteran's symptoms are indicative of an emergent condition from the perception of the lay person (the Veteran) experiencing them. While the Veteran was discharged from HHMC the same day he received the emergency treatment on September 4, 2009, the Veteran's report that he was told a week prior to again seek emergency treatment if the pain persists coupled with the fact that the Veteran indeed underwent surgery for the condition for which he sought treatment at HHMC less than one week after the private medical treatment, reflect the Veteran's belief that he was experiencing an emergency medical condition which comports with what a prudent layperson would reasonably describe as being emergent. While the diagnosis ultimately rendered was not for an emergency condition and the Veteran was discharged the same day, the Board finds that, from the perspective of the Veteran, a prudent layperson at the time the event was happening would have reasonably believed that a medical emergency was taking place. Indeed, on September 4, 2009, the Veteran was experiencing severe pain and reported blood in his urine that morning. The fact that the treatment provided by HHMC was rendered within one day does not diminish the distress felt by the Veteran to treat the underlying left inguinal hernia condition that resulted in pain, which was significant enough to require a surgical procedure less than one week later at a VAMC. With respect to the issue of whether VA facilities were feasibly available, in light of the inaccessibility of a VA facility for over 100 miles from the Veteran's residence in contrast to the 8 miles to HHMC, is probative evidence that a VA medical facility was not feasibly available for the emergency needs of the Veteran at that time and an attempt to use it beforehand would not have been reasonable. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the requirements for payment or reimbursement for unauthorized medical treatment furnished by HHMC on September 4, 2009, under the amended version of 38 U.S.C.A. § 1728, have been met. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with hospitalization on September 4, 2009 at HHMC is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs