Citation Nr: 1343429 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-27 583A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Vanderbilt University Medical Center (Vanderbilt) from April 22, 2009 to April 24, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the VA Medical Center in Murfreesboro, Tennessee. FINDINGS OF FACT 1. The Veteran received private inpatient medical care at Vanderbilt from April 22, 2009 to April 24, 2009. 2. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728, as there are no service-connected disabilities. 3. The Veteran's treatment was not rendered in a medical emergency of such nature that delay would have been hazardous to life and health. 4. There is no indication during hospitalization that the Veteran's medical condition was unstable. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Vanderbilt University Medical Center from April 22, 2009 to April 24, 2009 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.1000-17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. The Veteran was provided with an undated duty-to-assist letter, which specifically notified him that he needed to show that medical care and services were rendered in a medical emergency of such nature that delay would have been hazardous to life and health. As the facts of the case are not in dispute and the matter involves legal interpretation, no further assistance under the VCAA is necessary. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); see also VAOPGCPREC 5-2004 The Veteran seeks reimbursement or payment of the costs associated with medical services he received at Vanderbilt from April 22, 2009 to April 24, 2009. The Veteran was admitted as an inpatient on April 22, 2009 with complaints of severe post-surgical headaches. The Veteran was examined, afforded a CT scan of the brain, and treated for pain. The medical records indicate that the Veteran was admitted for evaluation and observation until April 24, 2009. According to an April 22, 2009 neurology consultation, the Veteran initially underwent transsphenoidal hypophysectomy for a pituitary macroadenoma in December 2008. Subsequent to persistent progressive headaches and continued right-sided vision loss, the Veteran underwent a right pterional craniotomy for resection of the suprasellar component of his pituitary macroadenoma on March 16, 2009. The Veteran was discharged postoperatively in good condition on March 19, 2009; but, he returned the next day with complaints of continued headaches. He was placed on a new medication regimen and sent home the same day. He presented at the emergency room again on March 29, 2009 with complaints of continued headaches and right-sided numbness over the parietotemporal region of his head. Tests were conducted, including a spinal tap, which produced sterile results. The Veteran was discharged on April 1, 2009. The next emergency room visit was on April 22, 2009, the first day of the period in question. When the Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment - specifically, 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. The Veteran asserts that the treatment he received at Vanderbilt from April 22-24, 2009 was rendered in a medical emergency. VA did not authorize payment or reimbursement for the in-patient treatment because, inter alia, they found that the treatment rendered was not 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; and, because a VA medical facility was feasibly available. 38 U.S.C.A. § 1728(a) provides that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities under certain emergent circumstances when VA or other Federal facilities are not feasibly available, provided that the treatment involves a service-connected disability or a nonservice-connected disability that is caused by or aggravated by a service-connected disability. See also 38 C.F.R. § 17.120. The Veteran does not contend that his April 2009 treatment was for a service-connected disability. The record shows that service connection has not been established for any disabilities; thus, the criteria for payment under 38 U.S.C.A. § 1728 are not met. Consequently, the only possible route to entitlement to reimbursement or payment of unauthorized medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a non-service-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act. See also 38 C.F.R. §§ 17.1000-17.1008 (2013). Pursuant to 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(a)-(h) (2013), eligibility for payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities under the statute and the implementing regulations, is dependent on 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 that VA has an agreement with to furnish health care services for Veterans was not feasibly available and an attempt to use them 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 the nearest available appropriate level of care was at a non-VA medical center); (d) 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. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (e) The Veteran is financially liable to the provider of emergency treatment for that treatment; (f) 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 the 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); (g) 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, the Veteran's liability to the provider; and (h) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002(a)-(h) (2013). All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). The Court also 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 Veteran argues that he was told by his treating doctors at Vanderbilt that he should seek all follow-up treatment at that facility. In a June 2009 memorandum (received at the RO in August 2009), K.W., MD, Assistant Professor of Neurological Surgery from Vanderbilt, stated the following: [The Veteran] has contacted the Vanderbilt Neurosurgery clinic multiple times regarding issues related to his two operations here at Vanderbilt. He has been instructed by my staff, under my direction, to seek care at the Vanderbilt [emergency department] or clinic directly as his records and imaging studies pertaining to these procedures are not available at the VA and are essential for ensuring that he receives proper care. With regard to the issue of feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA medical center or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 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. Id. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient's condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated. Id. With regard to the issue of feasible availability, 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. 38 C.F.R. § 17.130 (2013). Based on Dr. K.W.'s statement, that the nature of the Veteran's treatment necessitated all follow-up treatment at Vanderbilt, it is reasonable to find that VA facilities were not feasibly available for purposes of meeting this requirement under 38 U.S.C.A. § 1725. That notwithstanding, the Board finds that the Veteran's treatment between April 22, 2009 to April 24, 2009 was not 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. The April 22, 2009 Vanderbilt neurology consultation indicates that the Veteran presented on that day with continued complaints of headaches. The headaches were described as similar in characteristic and intensity to the headaches the Veteran has had since his right-sided pterional craniotomy; and, according to the report, the Veteran stated that the headaches have not been increasing in intensity or distribution since that time. Additionally, the Veteran reported some gait/balance disturbance and noted that it had been stable for quite some period of time since before his most recent surgery. Based on these findings, which essentially show that the Veteran's condition was stable at the time of treatment beginning on April 22, 2009, the Veteran's treatment was not of such an emergent nature that delay in seeking immediate medical attention would have been hazardous to life or health. An April 23, 2009 attending physician's statement indicates that the Veteran reported that his headaches were "much more intense" since his last completed resection of his pituitary tumor; however, there is no indication in the record that the headaches became "much more intense" just prior to the April 22-23, 2009 treatment such that the Veteran felt that delay in seeking treatment would be hazardous to life and health. Furthermore, the Veteran has never asserted such. The note also reflects that the Veteran was on prednisone and dexamethasone, but had run out of the dexamethasone one week earlier. Despite not taking one of his medications for one week, the Veteran reported that his symptoms did not necessarily worsen during that time period. Even if the Veteran's headaches had become progressively much more intense, there is no indication that his treatment on April 22, 2009 was emergent as defined in the criteria above. The record clearly shows that the Veteran has had headaches since the surgical procedure, and there is no indication that the Veteran's condition at the time of his treatment beginning on April 22, 2009 was not stable or that it was for anything other than debilitating headaches which had been ongoing since his initial surgery. There is no doubt that the Veteran's headaches are debilitating, as shown by the fact that he was taking steroids at that time, and by his own self-reported history; however, a life-threatening emergency did not occur on April 22, 2009 as shown by the Vanderbilt records. Further, the records also show that the Veteran was admitted as an in-patient for management of his headache; however, those records do not indicate that the Veteran's headaches on the day of admission were more severe than usual such that his treatment could be classified as emergent. In summary, even if the Veteran's treatment was not feasibly available at a VA facility, as suggested by the Veteran's neurosurgeon, the services provided from April 22, 2009 to April 24, 2009 were not 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. A prudent layperson who possesses an average knowledge of health and medicine could not reasonably expect that the absence of immediate medical attention would have resulted in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. Based on the Veteran's own self-reported history, he had severe pain and progressing instability for a significant time period prior to the day of admission on April 22, 2009. Although the Veteran's treatment for his headaches that was received from April 22, 2009 to April 24, 2009 at Vanderbilt may have been necessary, it was not emergent. Regardless of whether any of the other criteria for reimbursement under 38 U.S.C.A. § 1725 are met, payment or reimbursement for the private treatment received from April 22-24, 2009 is not warranted because not all of the criteria are met. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). For these reasons, the preponderance of the evidence is against the claim and reimbursement or payment of private medical expenses for services rendered by Vanderbilt from April 22, 2009 to April 24, 2009 is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at Vanderbilt from April 22, 2009 to April 24, 2009, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs