Citation Nr: 1338149 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-34 726A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with treatment on May 10, 2007 at BryanLGH Heart Institute (BHI). 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 July 1958 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision of the Department of Veterans Affairs (VA) Nebraska-Western Iowa Health Care System in Omaha, Nebraska, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by BHI on May 10, 2007 was denied. In July 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC to obtain treatment records from BHI from May 2007. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 May 2007 private medical treatment received at BHI, the Veteran had been awarded a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU). 2. On May 10, 2007, the Veteran received medical treatment at BHI, a non-VA hospital; the medical treatment was not previously authorized by VA. 3. The medical care the Veteran received on May 10, 2007 was not for a condition that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of the unauthorized medical expenses incurred on May 10, 2007 at BHI have not been met. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 17.52(a), 17.120, 17.1000-1008 (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 (West 2002 & Supp. 2012). 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 (2013) 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 (2013). VA complied with these provisions in this case. The October 2007 decision notified the Veteran of the reasons and bases for denial and provided him notice of procedural and appellate rights. As such, the duty to notify and assist has been met. 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) (West 2002); 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) (West 2002), "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 (2013). 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 (2013); 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 (2013). 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 May 10, 2007. The record also does not indicate that the Veteran may have contacted VA within 72 hours of the initial care at BHI. 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 (2013), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703(a). 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. 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 (2007). 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 (West 2002 & Supp. 2012). 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 BHI on May 10, 2007, 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 (West 2002 & Supp. 2012); 38 C.F.R. § 17.120(b), (c) (2013). Important in this case, the prudent layperson standard is met if an emergency medical condition manifests 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. 38 C.F.R. § 17.1002(b). 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 May 10, 2007 at BHI, 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 not warranted for the care provided by BHI on May 10, 2007. At the time of the Veteran's private medical care, service connection was in effect for diabetes mellitus, bilateral lower extremity diabetic peripheral neuropathy, tinnitus, status post medial meniscectomy of the right knee, fracture of the right third metatarsal, left ear hearing loss, erectile dysfunction, and nephropathy, and he was receiving a TDIU due to his service-connected disabilities. The record reflects that in March 2007, the Veteran underwent a catheterization for treatment of ischemic cardiomyopathy. The treatment rendered on May 10, 2007 was for a follow-up of the catheterization performed approximately two months prior. The May 10, 2007 record indicated that the Veteran had done quite well since the catheterization in late March. At the time of follow-up treatment on May 10, 2007, the Veteran had mild dyspnea on exertion; however, he had no interval defibrillator discharges since dismissal from the hospital in March. He also denied paroxysmal nocturnal dyspnea, orthopnea, chest pain, and palpation symptoms. He had minimal ankle edema. Upon physical examination, the Veteran's vital signs, head/neck, cardiac, chest, abdomen, and extremities were normal with the exception of minimal edema of the extremities. The recommendation was to see the Veteran again in three months at which time thyroid function testing, liver function testing, and an echocardiogram would be performed. After a review of the evidence, lay and medical, the Board finds that a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. In fact, the Veteran admitted that the May 10, 2007 treatment was for follow-up of previous surgery rather than any contemporaneous emergent circumstances. See December 2007 Substantive Appeal. In May 2007 he contended that he was told that he was allowed one follow-up with the attending cardiologist at BHI, post surgery. It was only years later, in an October 2013 Post-Remand Brief, that the Veteran's representative first contended that the Veteran was "unable to discern his true medical condition or its severity" and asserted on the Veteran's behalf that the Veteran "thought to be and believed to be of an emergent nature at the time." The Board has weighed this assertion on the Veteran's behalf, but finds the more contemporaneous follow-up report from May 10, 2007, which is more probative because it was made for treatment purposes, and the Veteran's more contemporaneous statement in the December 2007 substantive appeal to be more probative than the more recent assertion years later that the Veteran believed he had a medical emergency on May 10, 2007. On the question of whether the treatment in May 2007 appeared emergent, the inherent nature of follow-up treatment is not emergent as it is made in advance, by appointment, and the specific facts, at the time of the follow-up treatment, show that, even from the perspective of the Veteran at that time, the prudent layperson standard is not met. On the question of whether the treatment in May 2007 appeared emergent, the evidence shows that, on May 10, 2007 the Veteran did not have acute symptoms of sufficient severity, including severe pain, such that a prudent layperson who possesses an average knowledge of health and medicine, such as the Veteran, 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 findings of dyspnea and edema were no more than mild and minimal, respectively. Given the finding that the medical care received on May 10, 2007 does not meet the prudent layperson standard and that all statutory requirements must be met before any payment may be authorized, discussion of the other requirements for payment or reimbursement under 38 U.S.C.A. § 1728 are rendered moot. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012); see also Melson, 1 Vet. App. at 334. Because the treatment rendered at BHI on May 10, 2007 was not for an emergent condition, the Board finds that a preponderance of the evidence is against the Veteran's appeal for payment or reimbursement of unauthorized medical expenses at BHI, and the appeal must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with treatment on May 10, 2007 at BHI is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs