Citation Nr: 1342092 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 08-19 728A ) DATE ) ) On appeal from the Department of Veterans Affairs North Florida/South Georgia Veterans Health Care System located in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with dental treatment from September 21, 2007 to October 19, 2007 at Country Village Dental (CVD). 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 November 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision of the Department of Veterans Affairs (VA) North Florida/South Georgia Veterans Health Care System located in Gainesville, Florida. In November 2011, the Board remanded this matter for additional development. 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 September to October 2007 private dental treatment received at CVD, the Veteran had been awarded (retroactively) a total disability evaluation based on individual unemployability due to his service-connected disabilities (TDIU). 2. From September 21, 2007 to October 19, 2007, the Veteran received dental treatment at CVD, a non-VA clinic; the medical treatment was not previously authorized by VA. 3. The dental care the Veteran received from September 21, 2007 to October 19, 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 from September 21, 2007 to October 19, 2007 at CVD have not been met. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2002 & Supp. 2013); 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. 2013). 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 April 2008 decision notified the Veteran of the reasons and bases for denial and provided him notice of procedural and appellate rights. Pursuant to the November 2011 Board Remand, private dental records from September and October 2007 at CVD were obtained and associated with the record. Stegall, 11 Vet. App. at 268. As such, the duties to notify and assist have 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 from September 21, 2007 to October 19, 2007. The record also does not indicate that the Veteran may have contacted VA within 72 hours of the initial care at CVD. The Board notes the Veteran's contention that he was retroactively awarded a TDIU, effective May 31, 2006, in a December 2007 rating decision, and that at the time of the dental treatment, he had not yet been awarded a TDIU. As such, the Veteran argues that had he known he was awarded a TDIU, he would have sought dental treatment at a VA facility. Regardless, while the Board is sympathetic to the Veteran's assertion, the fact is not in dispute that the Veteran did not seek and obtain prior proper authorization for VA payment of the private medical expenses he incurred from September 21, 2007 to October 19, 2007. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides "questions" of law or fact). Accordingly, the Board must find 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). The Veteran's claim for payment or reimbursement of unauthorized, private medical expenses associated with dental treatment provided to the Veteran at CVD from September 21, 2007 to October 19, 2007, was primarily denied because there was no prior authorization for the treatment. As discussed above, the Board finds that the treatment was not authorized and it must be determined whether the Veteran is otherwise entitled to payment or reimbursement for services. Thus, the next question 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. 2013); 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 dental treatment from September 21, 2007 to October 19, 2007 at CVD, 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 CVD from September 21, 2007 to October 19, 2007. At the time of the Veteran's private medical care, service connection was in effect for posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss, and he was receiving (retroactively, in a December 2007 rating decision) a TDIU due to service-connected disabilities. The record reflects that on September 21, 2007 the Veteran sought dental treatment for a broken tooth (tooth number three, first molar of the upper jaw). Significantly, the treating dentist indicated that the Veteran was not having any sensitivity and a posterior-anterior X-ray was taken. The treating dentist recommended a crown for tooth number three and reviewed the treatment plan with the Veteran, which he accepted. At no time during the dental treatment from September 21, 2007 to October 19, 2007 did the Veteran experience or report acute dental symptoms of any severity. 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. While the Veteran asserts that he broke the tooth and could not wait for notification from VA regarding the pending TDIU claim (which allows for VA dental treatment), he does not identify specific symptoms or indications that the condition (a broken tooth) was emergent in nature. In fact, the Veteran has not contended that he was seeking emergency dental treatment; instead he argues that he believed he was not entitled to VA dental benefits at that time and therefore sought private dental treatment. Indeed, the dental report from September 21, 2007 indicated that the Veteran was not experiencing any sensitivity. The Board has weighed the Veteran's assertions on his behalf, but finds the contemporaneous dental treatment records to be more probative because they were more contemporaneous and were made for treatment purposes. On the question of whether the dental treatment from September 21, 2007 to October 19, 2007 appeared emergent, the specific facts at the time of the dental treatment show that, even from the perspective of the Veteran and the treating dentist recording the Veteran's complaints at that time, the prudent layperson standard is not met. The evidence shows that, from September 21, 2007 to October 19, 2007, the Veteran did not have acute symptoms of sufficient severity, including severe pain, such that a prudent layperson such as the Veteran 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. Given the finding that the medical care received from September 21, 2007 to October 19, 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. 2013); see also Melson, 1 Vet. App. at 334. Because the dental treatment rendered at CVD from September 21, 2007 to October 19, 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 CVD, 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 dental treatment from September 21, 2007 to October 19, 2007 at CVD is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs