Citation Nr: 1342227 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-29 054 ) DATE ) ) On appeal from the South Central Department of Veterans Affairs Health Care Network in Flowood, Mississippi THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Hot Spring Medical Center on February 1, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to October 1969, and from September 1986 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 determination by the South Central Department of Veterans Affairs Health Care Network in Flowood, Mississippi. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. On February 1, 2010, the Veteran received private medical treatment. 2. The Veteran does not have a total disability; and his treatment on February 1, 2010, was not for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability or for the purpose of ensuring entrance or continued participation in a vocational rehabilitation program. 3. The Veteran was not eligible for reimbursement under 38 U.S.C.A. § 1728. 4. The Veteran's treatment at Hot Spring Medical Center on February 1, 2010 was not emergent. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred at Hot Spring Medical Center on February 1, 2010, pursuant to the Veterans Millennium Health Care and Benefits Act, are not met. 38 U.S.C.A. §§1725, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.121, 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 issue decided below have been properly developed and no further assistance to the Veteran is required in order to comply with the duty to notify or assist. The Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat. 2096 (2000) introduced several fundamental changes into the VA adjudication process. These changes were codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. Under the VCAA, VA's duty to notify and assist has been significantly expanded. However, the United States Court of Appeals for Veterans Claims (Court) ruled in Barger v. Principi, 16 Vet. App. 132, 138 (2002), 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. As this case concerns a legal determination of whether the Veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. §1725, the provisions of the VCAA are not applicable. The provisions of Chapter 17 of the 38 U.S.C. 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 Veteran 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). At any rate, the Veteran was provided with the notice required by the VCAA in a March 2010 letter. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. Consequently, the duties to notify and assist have been met. Analysis In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, in order to be entitled to payment or reimbursement of private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. As there is no indication from the record, nor has the Veteran alleged, that he has a total disability or that his treatment at the private facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability or for the purpose of ensuring entrance or continued participation in a vocational rehabilitation program under 38 U.S.C.A. Chapter 31, he is not eligible for benefits under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1728 and 38 C.F.R. §§ 17.120, 17.47(i). To be eligible for payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), a veteran must satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. (b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition 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 (this standard would be met if there were 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); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use such provider beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); (d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the veteran becomes stabilized); (e) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C.A. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (h) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran's liability to the provider; (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board notes that the provisions of 38 U.S.C.A. § 1725 reflect a legislative change in that statute, effective October 10, 2008. Specifically, the change of interest is that the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary, if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such 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 (3) until such time as the Veteran can be transferred safely to a Department facility. 38 U.S.C.A. § 1725(f)(1)(B). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, "emergency treatment" is continued until 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. The regulations do not require that a Veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment was for a condition 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, that is, 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); see also, Swinney v. Shinseki, No. 08-0531 (U.S. Vet. App. Oct. 7, 2009). On Monday February 1, 2010, the Veteran presented to the Hot Spring Medical Center complaining of a rash on his back and into his left/thigh with an onset of Thursday. He walked into the facility by himself. He had been started on Acyclovir, 800 mg two days before, and the Veteran indicated that his condition was not improving and was spreading. A diagnosis of shingles was noted, he was ambulatory upon discharge to his home, and given prescriptions of Zovirax cream, Vicodin, and Medrol. In May 2010, the claim was medically reviewed and the reviewer observed that the Veteran presented to a non-VA medical facility on February 1, 2010, with a rash on his back, and left hip and thigh, for four days. The reviewer noted that emergency room records showed that the Veteran was started on Acyclovir 800 mg two days before but did not get any better. The reviewer noted the Veteran's assertion that inclement weather prevented him from going to a VA facility, that the Veteran had been prescribed additional medication when he went to the emergency room, that the Veteran had been started on appropriate medication and the condition was no-emergent, and that the Veteran could have been treated at a VA facility in adequate time. On review, the Board finds that the criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred on February 1, 2010, have not been met. The Veteran contends that VA services at the North Little Rock, Arkansas facility were not available on February 1, 2010, due to inclement weather protocol. He asserts that his appointment on February 1, 2010, had been cancelled by the facility due to weather and that it was impossible for him to be seen at a VA facility. Although records as to inclement weather protocol on February 1, 2010, are not of record, affording the Veteran all benefit of the doubt, the Board will concede that such weather restrictions were in effect that day. However, even assuming this scenario, there is still no indication that the Veteran's condition was emergent. The Board finds that the probative value of the Veteran's statements are greatly outweighed by the objective evidence of record which fails to show that delay in seeking immediate medical attention would have been hazardous to life or health. Specifically, as noted above, Veteran was ambulatory upon admission to Hot Spring Medical Center. At that time, he had his condition for four days and had been started on treatment two days before. He was also discharged that same day, and was ambulatory. There is simply no evidence that the Veteran's rash was of such a nature that a prudent layperson could have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his health or life. Moreover, the VA opinion on this matter is more probative than the Veteran's assertions. It addressed the nature of the Veteran's condition and considered the weather conditions, and concluded that the Veteran's condition was not emergent. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that an opinion is considered probative if it is definitive and supported by detailed rationale). There is no medical opinion of record to the contrary. The Veteran has been accorded ample opportunity to present competent evidence in support of the claim. He has failed to do so. See 38 U.S.C.A. § 5107(a). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 92 (1991). In the absence of authorizing statutory or regulatory authority, the Board may not award payment or reimbursement of the private medical expenses at issue. See Zimick v. West, 11 Vet. App. 45, 50 (1998) citing Office of Personal Management v. Richmond, 496 U.S. 414, 424 (1990) (payment of money from the [Federal] Treasury "must be authorized by a statute"). Based on the foregoing, the Board finds that a preponderance of the evidence is against the claim of entitlement to payment of the medical expenses as a result of treatment at Hot Spring Medical Center on February 1, 2010. Thus, the Veteran's claim must be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred as a result of treatment at Hot Spring Medical Center on February 1, 2010, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs