Citation Nr: 1414326 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 11-11 753A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Huntington, West Virginia THE ISSUE Entitlement to payment or reimbursement for the costs of private medical expenses incurred for unauthorized service provided at King's Daughters Medical Center, after emergency care, from November 19, 2009 to November 22, 2009, following emergency department care. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from September 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 administrative decision of the Department of Veterans' Affairs (VA) Medical Center (VAMC) in Huntington, West Virginia. In that decision, the VA Medical Center denied entitlement to reimbursement for medical expenses incurred at King's Daughters Medical Center from November 19, 2009 to November 22, 2009, following emergency care. In February 2012, the Veteran failed to appear, without explanation, for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2013). FINDINGS OF FACT 1. Prior authorization from VA for the private medical treatment rendered from November 19, 2009 to November 22, 2009 at King's Daughters Medical Center, was not obtained. 2. The medical services provided at King's Daughters Medical Center from November 19, 2009 to November 22, 2009, following emergency department care, were not for a service-connected disability, nor did the Veteran have a total disability permanent in nature resulting from a service-connected disability at that time. 3. The evidence does not show that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention, following the Veteran's emergency room treatment, from November 19, 2009 to November 22, 2009, would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses incurred at King's Daughters Medical Center, from November 19, 2009 to November 22, 2009, following emergency department care, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the provisions of the Veterans Claims Assistance Act of 2000, VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, as the statute at issue in such cases is not found in Title 38, United States Code, Chapter 51 (i.e., the laws changed by VCAA). Barger v. Principi, 16 Vet. App. 132 (2002). Similarly, the statute at issue in this matter is not found in Chapter 51, but rather, in Chapter 17. However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the United States Court of Appeals for Veterans Claims (Court) appeared to assume that the VCAA was applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R Part 17, 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 (2013), 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 payment/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). The appellant was informed of the bases of the denial of the claim and he has been provided with a statement of the case which outlines the laws and regulations used in evaluating his claim. There is no indication that any additional notice or development would aid the appellant in substantiating the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). In a letter of August 2010, VA informed him that he should inform the agency of original jurisdiction of any additional information or evidence that he wanted VA to attempt to obtain on his behalf and that a signed release was necessary. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In the circumstances of this case, additional efforts to assist or notify the appellant would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Analysis On November 19, 2009, the Veteran was treated in the emergency room of the King's Daughters Medical Center for complaints of shortness of breath. He was stabilized, and then admitted for further evaluation. He was discharged on November 22, 2009, with a diagnosis of acute bronchitis with chronic obstructive pulmonary disease (COPD) exacerbation. VA has approved payment or reimbursement for medical expenses incurred during the Veteran's emergency department treatment. It is the subsequently incurred medical expenses that are at issue herein. Initially, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care provided by King's Daughters Medical Center from November 19, 2009 to November 22, 2009. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. See Similes v. Brown, 5 Vet. App. 555 (1994). The law provides that, in connection with its statutory obligation to provide medical services to veterans, VA may contract for private care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) , "When Department [of Veterans Affairs] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 or 1712], may contract with non-Department facilities in order to furnish" certain care, including: "Hospital 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) ; 38 C.F.R. § 17.52. The admission of a veteran to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also 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 this case, there is no evidence that the Veteran obtained prior authorization for payment of the private medical services provided by King's Daughters Medical Center from November 19, 2009 to November 22, 2009. Likewise, although an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission, no such application was made in this case. Accordingly, the Board must conclude that prior authorization for the private medical services provided by King's Daughters Medical Center from November 19, 2009 to November 22, 2009, 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. Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728. That matter was denied by the VAMC on the basis that VA facilities were available and the medical treatment was no longer provided for a medical emergency. Pursuant to the provisions of 38 U.S.C.A. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that three criteria are met: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)) (2000); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). The Veteran was not service connected for any disability when he was treated and he was not participating in a rehabilitation program. Accordingly, there is no basis to establish entitlement to reimbursement under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. The claim must therefore be denied on that basis. Under 38 U.S.C.A. § 1725 (West 2002), payment or reimbursement for emergency services for non-service-connected conditions in non-VA facilities may also be authorized. 38 C.F.R. §§ 17.1000-03 (2013). To be eligible for reimbursement under this authority, all of the following conditions must be satisfied: (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 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 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. 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; and (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 . The above-listed criteria are conjunctive, not disjunctive; all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). As noted above, on November 19, 2009, the Veteran sought treatment at the emergency room of King's Daughters Medical Center for shortness of breath. In approving payment/reimbursement for the costs of medical care received in the emergency department, the VAMC concluded that these are symptoms 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. As to the inpatient care received after the emergency department treatment, the Board finds that as the Veteran was stabilized in the emergency room on November 19, 2009, any further treatment required for his non-service-connected disability (COPD) should have been sought at a VA facility. In this regard, the medical evidence does not show that the Veteran had any symptoms following his emergency room stabilization that a prudent layperson would have reasonably expected would have been hazardous to life or health had he delayed in seeking immediate medical attention. King's Daughters Medical Center records, dated November 19, 2009, indicate that at the time of hospital admission, the Veteran's condition was "[s]table." The Veteran argues that it was the responsibility of King's Daughters Medical Center to arrange for his transfer to a VA facility since he informed them that he received all his medical treatment at the VA and that he had no other insurance. However, the Board finds that there is no legal authority to support this argument by the Veteran. As the criteria under the Millenium Act are conjunctive, this failure to satisfy 38 C.F.R. § 15.1002(c) precludes a grant of the requested payment/reimbursement, and an analysis of the remaining factors is thus unnecessary. In conclusion, the Board finds that the preponderance of the evidence is against reimbursement or payment for the unauthorized private medical care that the Veteran received from a private medical facility from November 19, 2009 to November 22, 2009, under the provisions of both 38 U.S.C.A. §§ 1725 and 1728. Accordingly, the appeal must be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a private medical facility from November 19, 2009 to November 22, 2009, following emergency department care, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs