Citation Nr: 1418908 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 12-03 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of $2,355.00 for medical care provided by private providers on April 13, 2011. REPRESENTATION The Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to October 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of an administrative decision issued by letter in October 2011 of a Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida. In July 2012, the Veteran did not appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran is not currently service connected for any disability. 2. On April 13, 2011, a week after initially injuring his right foot, the Veteran sought treatment at Capital Regional Medical Center, a private, non-VA facility. 3. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Veteran at Capital Regional Medical Center on April 13, 2011, was rendered in a medical emergency of such nature that delay would have been hazardous to life or health. 4. The preponderance of the competent and credible evidence of record does not show that the medical care provided the Capital Regional Medical Center on April 13, 2011, was for treatment of 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. CONCLUSION OF LAW The criteria for payment or reimbursement for medical care provided by private medical providers on April 13, 2011, have not been met. 38 U.S.C.A. §§ 1703, 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 17.52, 17.53, 17.54, 17.120, 17.121, 17.130, 17.1000, 17.1001, 17.1002 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), VA has certain notice and assistance requirements. See 38 U.S.C.A. §§, 5103, 5103A, 38 C.F.R. §§ 3.156(a), 3.159. The VCAA, with its expanded duties, is not applicable to cases involving unauthorized medical expenses 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, 138 (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), the United States Court of Appeals for Veterans Claims 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. According to 38 C.F.R. § 17.124, the claimant 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. In this case, the VA medical facility in question has explained the bases for denial of the claim, and afforded an opportunity to present information and evidence in support of the claim. There is no indication that notice or development would aid the appellant in substantiating the claim for reimbursement. 38 U.S.C.A. §§ 5103, 5103A. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103, 118 (2005). In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that 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 claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (discussing how remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The Veteran seeks reimbursement for the cost of emergency medical care he received at Capital Regional Medical Center on April 13, 2011. The cost includes a bill from the hospital for $1,904.00, for $380.00 from Jacksonville Emergency Consult, which provided the physician's care, and $71.00 from Radiology Associates Tallahassee PA. The total amount sought by the Veteran is $2,355.00. The evidence establishes that the Veteran called VA on April 13, 2011 and a VA nurse advised the Veteran that he should seek care at a local ER and there was no clinic availability for his primary care provider. A few hours later, the Veteran sought treatment at Capital Regional Medical Center. He complained of an injury to his right foot over a week earlier. He complained of pain upon weight bearing. The emergency room physician described the pain as mild, but also noted the Veteran described the pain as 6/10. Swelling was noted. There was no weakness, numbness, tingling, suspected foreign body, or skin laceration. The vascular system was intact and there were no neurological abnormalities elicited during examination. X-rays of the right foot and ankle were interpreted by the radiologist as normal but the ER physician diagnosed a fracture of the right talus. He was treated with ice and a wrap, instructed to elevate it, and not to play sports or work that day. No other treatment appears of record. In his annual physical examination at VA in December 2011, there are no complaints, symptoms, findings, diagnoses, or treatment of the right foot. The Veteran states that he sought treatment because the foot had increased in swelling and level of pain. In addition, it was misshapen and deformed, numb, turning different colors, and the Veteran had problems moving the foot making it difficult to walk. He delayed treatment because his condition had not improved. Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions. 38 U.S.C.A. § 1728 and 38 U.S.C.A. § 1725. Under 38 U.S.C.A. § 1728, VA may provide payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA for emergency treatment of service connected or related disabilities. 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120-17 .132. Review of the file, however, demonstrates that the Veteran is not currently service connected for any disability and therefore § 1728 and the corresponding regulations do not apply. Turning to § 1725, the Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those Veterans who are active Department health-care participants who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. To be eligible for reimbursement, the Veteran has to meet all nine requirements set forth in 38 C.F.R. § 17.1002. Section 1725 requires that the initial evaluation and treatment is for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking 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). 38 U.S.C.A 1725 (d). An emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994). The evidence of record does not support that the Veteran's care was rendered in a medical emergency. The Veteran stated that he sought treatment for his foot because it was swollen, discolored, and misshapen. As a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Thus, the Veteran is competent to report symptoms such as pain, discoloration, swelling, and weakness; however, such symptoms are not sufficient to render a situation an emergency. The Board finds the Veteran competent and credible about the symptoms and their level of severity that caused him to seek medical treatment on April 13, 2011. Nevertheless, he had waited at least a week before first seeking treatment. Furthermore, he sought treatment only because his symptoms had not improved, not worsened since the injury. This suggests that the symptoms were stable. The lengthy delay, a week or more, demonstrates that the Veteran did not believe he was experiencing an immediate health emergency or event that was a sudden, generally unexpected occurrence demanding immediate action. Further, if the symptoms and their level of severity were severe to require emergency care, the Board finds that a prudent layperson would not expect that he could wait or delay seeking treatment a week or week and a half without it being hazardous or causing serious jeopardy, serious impairment, or serious dysfunction to his right foot and ankle. There were no acute symptoms of such severity 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. The Board gives considerable weight to the actual physical findings of the Veteran. This evidence is against a finding that his situation was emergent or that a prudent layperson would think it was an emergent condition that involved a sudden, unexpected occurrence or set of circumstances demanding immediate action, of such nature that delay would have been hazardous to life or health. The injury did not involve vascular or neurological damage. Further, the injury, whether there was a fracture or not, required nothing more than ice and a wrap and did not involve any surgical intervention, hospitalization, or any other treatment demonstrating an injury serious to the Veteran's health or function of his right foot and ankle. Thus, the hospital treatment records do not reflect that the treatment providers viewed the Veteran's condition as requiring emergent treatment. There is nothing in the record to suggest that the delay associated with waiting until his VA provider was open would have placed the Veteran at risk for imminent danger to his life, serious jeopardy to his health, or permanent or increased loss of function to the injured area - especially in light of the fact that the injury had occurred a week or week and a half earlier. Although it is clear that the Veteran's foot symptoms were significant and warranted medical attention, nothing in the descriptions of his presenting condition in records from Capitol Regional Medical Center indicates that there was an immediately time-sensitive medical emergency at that moment. The Board finds that these medical records, which do not show that a prudent layperson would have reasonably expected that a delay in seeking medical attention would be hazardous, are of greater probative value than any later statements from the Veteran that it was. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (the Board has been charged with the duty to assess the credibility and weight given to evidence). In sum, the Board finds that it cannot be reasonably argued that a prudent layperson would expect that further delay after waiting a week to a week and a half in seeking care for a right foot injury that included a fracture of the talus would have been hazardous to life or health. Accordingly, because the preponderance of the evidence is against the conclusion that the treatment the Veteran received 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, VA is precluded from paying or reimbursing these private medical expenses under the Veterans Millennium Health Care and Benefits Act regardless of whether or not a VA facility was feasibly available, regardless of whether or not the Veteran is service connected for the disability that required treatment, and regardless of whether or not space was available at a nearby VA Medical Center. 38 C.F.R. § 17.1002. The Veteran's service representative argues that the nurse's instructions raised a reasonable belief in the Veteran that he was authorized to seek private care for his symptoms. Under 38 U.S.C.A. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.52(a). There is no evidence that VA had a contract with Capitol Regional Medical Center for the Veteran's medical treatment. Furthermore, for the reasons discussed above, the phone call with the nurse cannot constitute prior authorization for the Veteran's care under § 1703 because she had no authority to do so when, as here, the Veteran did not have an emergency situation. While the Board is sympathetic to the Veteran's arguments, it is bound by the criteria set forth above, and a review of all the potentially applicable laws and regulations does not reveal a provision under which payment or reimbursement of the medical expenses in question may be made by VA. 38 U.S.C.A. §§ 1703, 1710, 1725, 1728. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104 Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing, Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990).) ORDER Entitlement to payment or reimbursement of $2,355.00 for medical care provided by private providers on April 13, 2011 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs