Citation Nr: 1416212 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 10-27 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUES 1. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 9, 2009. 2. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 11, 2009. 3. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 15, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from August 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision dated September 2009 and two decisions dated October 2009 of the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida, that separately adjudicated claims for reimbursement for treatments dated September 9, 2009, September 11, 2009, and September 15, 2009. FINDINGS OF FACT 1. The Veteran incurred medical expenses for treatment rendered on September 9, 2009; September 11, 2009; and September 15, 2009, in connection with private hospital emergency room treatment at Ocala Regional Medical Center. 2. In September 2009, the Veteran was service connected for coronary artery disease with coronary vasospasms, evaluated as 100 percent disabling; neurogenic bladder with nocturia, evaluated as 40 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; peripheral neuropathy of the left upper extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right upper extremity, evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; erectile dysfunction, evaluated as noncompensable; and renal insufficiency, evaluated as noncompensable. 3. The evidence establishes that the Veteran's treatments at Ocala Regional Medical Center were not for emergency services. CONCLUSIONS OF LAW 1. The criteria for reimbursement or payment for the unauthorized costs of private medical expenses incurred on September 9, 2009 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000-17.1008 (2013). 2. The criteria for reimbursement or payment for the unauthorized costs of private medical expenses incurred on September 11, 2009 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000-17.1008 (2013). 3. The criteria for reimbursement or payment for the unauthorized costs of private medical expenses incurred on September 15, 2009 are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.1000-17.1008 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As this case concerns a legal determination as to whether the Veteran is entitled to reimbursement for medical expenses under 38 U.S.C.A. § 1703, 1725, and 1728, the provisions of 38 U.S.C.A. §§ 5103, 5103A are not applicable. The provisions of 38 U.S.C. Chapter 17 and the relevant regulations 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. 38 C.F.R. § 17.132. The Veteran was notified of the decision and his appellate rights in a decision dated September 2009 and two decisions dated October 2009. He was provided with two Statements of the Case in June 2010 and one Statement of the Case in September 2010 that informed him of the evidence that VA had considered, the pertinent laws and regulations, and the reasons and bases for VA's decisions. All pertinent evidence regarding the reported non-VA medical treatments in September 2009 has been obtained and associated with the claim file. VA has fulfilled its duty to assist the appellant in the development of the current claims. The Veteran requests payment or reimbursement of unauthorized medical expenses for treatment provided on September 9, 2009, September 11, 2009, and September 15, 2009, at Ocala Regional Medical Center. Records from Ocala Regional Medical Center indicate that the Veteran went to the emergency room on September 9, 2009 with complaints of an infected finger that began a few days before. On September 11, 2009, the Veteran returned to the emergency room of Ocala Regional Medical Center for a follow up visit for his finger infection. On September 15, 2009, the Veteran again returned to the emergency room of Ocala Regional Medical Center for a prescription refill. Because the medical expenses incurred on September 9, 2009, September 11, 2009, and September 15, 2009 were not authorized, the next determination that must be made is whether the Veteran is entitled to reimbursement or payment by VA of such unauthorized medical expenses. Unauthorized medical expenses may be paid or reimbursed pursuant to either 38 U.S.C.A. §§ 1725 or 1728. To be eligible for reimbursement under 38 U.S.C.A. § 1725, the treatment must satisfy all of the following conditions: (1) The emergency services were provided in a hospital emergency department or a similar facility providing emergency care; (2) A prudent layperson would have reasonably expected that delay in seeking immediate medical attention for the initial evaluation and treatment would have been hazardous to life or health; (3) A VA or other Federal facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson; (4) The care beyond the initial emergency evaluation and treatment was 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, with the medical emergency lasting only until stabilization of the veteran; (5) The veteran was enrolled in the VA health care system at the time the emergency treatment was furnished and had received medical services under 38 U.S.C. Chapter 17 within two years before the non-VA emergency treatment; (6) The veteran is financially liable to the non-VA provider of the emergency treatment; (7) The veteran has no health insurance coverage for payment or reimbursement for the emergency treatment; (8) The veteran has unsuccessfully exhausted claims reasonably available against a third party in the case of an accident or work-related injury; and (9) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728, which applies primarily to emergency treatment for a service-connected disability. 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. Under 38 U.S.C.A. § 1728, payment or reimbursement is available only 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, or (D) for any illness, injury, or dental condition in the case of a veteran who (i) is a participant in a vocational rehabilitation program and (ii) is medically determined to have been in need of care or treatment; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120. To establish entitlement to payment or reimbursement of the cost of unauthorized medical service, all of the three criteria under 38 U.S.C.A. § 1728 must be satisfied. See Malone v. Gober, 10 Vet. App. 539, 542; see also 38 C.F.R. §§ 17.52, 17.53, 17.54. The statements of the case (SOCs) dated June 2010, September 2010, and June 2010 adjudicating treatments dated September 9, 2009, September 11, 2009, and September 15, 2009, respectively, stated that the Veteran did not meet the criteria for authorization of VA payment because they were not for emergency treatment. Under the statutory provision of 38 U.S.C.A. §§ 1725 and 1728, the term "emergency treatment" is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the veteran can be transferred safely to a VA or other Federal facility. 38 U.S.C.A. §§ 1725(f)(1), 1728(c); 38 C.F.R. § 17.1002. The evidence of record shows that the treatment rendered to the Veteran on September 9, 2009, September 11, 2009, and September 15, 2009, at Ocala Regional Medical Center, were not rendered for "emergency treatment" as defined by applicable law and a VA facility was feasibly available. 38 U.S.C.A. § 1725(f)(1), 1728(c); 38 C.F.R. § 17.1002(c),(d). The treatment records from Ocala Regional Medical Center on September 9, 2009 state that the Veteran was seen in the emergency room at 11:35pm for an infection of his right middle finger. It was indicated that the severity was mild and he had the condition for days prior to that treatment. He was diagnosed as having small paronychia of the right middle finger and was prescribed medication. On September 11, 2009, the Veteran returned to Ocala Regional Medical Center for follow-up treatment of his finger infection at which time it was noted that his pain was mild and the onset was six days before. His progress was improved and he responded well to treatment. On September 15, 2009, the Veteran returned again to Ocala Regional Medical Center for a refill of his medication. The private treatment records clearly indicate that delay in seeking immediate medical attention would not be hazardous to the life or health of the Veteran. The Veteran waited several days before seeking treatment for his finger infection and the treatment records do not indicate why the Veteran could not have gone to the VA Medical Center. In an August 2010 statement, the Veteran stated that he tried to call the VA Medical Center, but the phone system was difficult to navigate and the recording said that if there was a medical emergency to call 911. He stated that he had been reprimanded before for not following procedures and understood that it was necessary to make an appointment to receive treatment. He had received treatment on September 3, 2009 at the VA Medical Center and reported the problem with his finger, but he and the physician dismissed it as being of little concern. After six days, however, the infection and pain increased and the Veteran thought that it had become an emergency because the night he went in for treatment he could not sleep due to the pain. He was worried that because he was diabetic, he was at risk of losing his finger. The Veteran is competent to report what he experienced and his observations regarding his middle finger condition. See Buchanan, 451 F.3d at 1335; Jandreau, 492 F.3d at 1372; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). The medical evidence, however, is more probative to the issue on appeal than the Veteran's statements, because evidence contemporaneous with an event is generally more reliable than statements made much later recalling the details of the event. The evidence shows that he waited several days before seeking initial medical treatment for his middle finger infection and treatment on September 9, 2009 shows that the severity was mild and he was treated with medication. The Veteran's condition was not emergent on September 9, 2009. Certainly, treatment on September 11, 2009 and September 15, 2009 were also not emergent as they were follow-up visits for treatment and a medication refill; there is no evidence showing that he could not have sought such treatment at a VA medical facility. The Veteran has not shown that a delay in seeking immediate medical attention on any of the three occasions would have been hazardous to his life or health. The preponderance of the evidence is against these claims; there is no doubt to be resolved; and entitlement to payment or reimbursement of unauthorized medical expenses on September 9, 2009, September 11, 2009, and September 15, 2009 is not warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 9, 2009, is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 11, 2009, is denied. Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Ocala Regional Medical Center in Ocala, Florida, on September 15, 2009, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs