Citation Nr: 1425751	
Decision Date: 06/06/14    Archive Date: 06/16/14

DOCKET NO.  11-17 224	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Charleston, South Carolina


THE ISSUE

Entitlement to payment or reimbursement for the cost of private medical expenses incurred on June 5, 2010, at Candler Hospital.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel






INTRODUCTION

The Veteran had active military service from May 1986 to May 1989 and February 2003 to April 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 administrative decision of the U.S. Department of Veterans Affairs Medical Center (VAMC) in Charleston, South Carolina, which denied the benefit sought on appeal.  The Veteran has perfected a timely appeal of this determination.

The Veteran's paperless claims files were also reviewed and considered in preparing this decision, along with her paper claims file. 


FINDINGS OF FACT

1.  The Veteran incurred private medical expenses at the Candler Hospital on June 5, 2010, for treatment of dental pain, described as jaw pain and swelling of the jaw and face.  

2.  VA payment or reimbursement of the private medical care was not authorized in advance.

3.  At the time of the June 2010 treatment, the Veteran was in receipt of VA compensation for total service-connected disability permanent in nature.

4.  The Veteran's symptoms on June 5, 2010 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 his life or health; a VA or other Federal medical facility was feasibly available.




CONCLUSION OF LAW

Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred at the Candler Hospital on June 5, 2010 is denied.  38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2013); 38 C.F.R. §§ 17.120, 17.121, 17.1000-1003, 17.1000-1008 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

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 (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159 (2013).

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 Manning v. Principi, 16 Vet. App. 534, 542-43 (2002), that the provisions of the VCAA are not applicable where the law, not the factual evidence, is dispositive.  In Barger v. Principi, 16 Vet. App. 132, 138 (2002), the Court held 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. (West 2002) and 38 C.F.R (2013) 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 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, her or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38 (2012).  38 C.F.R. § 17.132 (2013).

At any rate, the Veteran was provided with the notice required by the VCAA in April 2011 in a letter provided to him after he initiated his appeal.  VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining the emergency department records from the Candler Hospital and obtaining a medical review of the records by the Charleston, South Carolina, VAMC.  All of this evidence is associated with the claims file.  Simply put, the record is complete regarding the claim for reimbursement or payment of the cost of private medical care and this matter is ready for appellate review.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).  




Analysis

In claims involving payment or reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA.  38 U.S.C.A. § 1703(a) (West 2002); 38 C.F.R. § 17.54 (2013); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997).  If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services.  There are essentially two avenues for obtaining payment or reimbursement of the expenses of private medical care - 38 U.S.C.A. §§ 1725 and 1728.  

Analysis under 38 U.S.C.A. § 1728

Under 38 U.S.C.A. § 1728, payment or reimbursement of the expenses of care not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation, may be paid on the basis of a claim timely filed, under the following circumstances:

	(a) Care or services not previously authorized were rendered to a Veteran in 	need of such care or services:  
		(1) For an adjudicated service-connected disability; 
		(2) For nonservice-connected disorders associated with and held to 			be aggravating an adjudicated service-connected disability; 
		(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 illness, injury or dental condition in the case of a Veteran 		who is participating in a rehabilitation program under 38 U.S.C.A. 
		§ Chapter 31 (West 2002) and who is medically determined to be in 			need of hospital care or medical services for reasons set forth in 38 			C.F.R. § 17.48(j) (2013); 

	(b) Care and services not previously authorized were rendered in a medical 	emergency of such nature that delay would have been hazardous to life or 	health; and,

	(c) VA or other Federal facilities were not 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.

38 C.F.R. § 17.120. 

All three of these statutory requirements must be met before payment may be authorized.  See Zimick v. West, 11 Vet. App. 45, 49 (1998); Hayes v. Brown, 6 Vet. App. 66, 68 (1993).

Initially, the Board notes that, in adjudicating a claim for reimbursement of medical expenses, VA must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the Veteran received in a private facility.  See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. §§ 17.53 and 17.54.  This is a factual, not a medical, determination.  Similes v. Brown, 6 Vet. App. 555 (1994). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application, whether formal or informal, by telephone, telegraph, or other communication, made by the veteran or by others on his/her behalf is dispatched to VA for veterans in the 48 contiguous States and Puerto Rico, within 72 hours after the hour of admission, including in the computation of time Saturday, Sunday, and holidays.  38 C.F.R. § 17.54.

Here, the Veteran has stated in a February 2011 statement that he contacted VA to see his primary care doctor.  He stated that he was instructed to go to the nearest medical facility to get medical help.  The Veteran is competent to report that he contacted VA prior to seeking treatment for his dental condition.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit  (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In this case, the Board does not find the statements of the Veteran in regard to contacting the VA prior to seeking treatment for his dental condition to be credible.  A review of the Veteran's VA outpatient treatment notes does not show any indication of contact prior to his June 5, 2010 private doctor visit for a dental condition, nor is there any indication of such within 72 hours of that visit.  Rather, the Veteran's treatment records show that he was seen in January 2010 and August 2010, with no reference to a dental condition.  There are no entries available for June 2010 and it appears that the records from that time period are complete.  Therefore, due to the lack of credibility, the Veteran's statements do not carry any probative value and the Board finds that there is no evidence of any authorization of care or service in accordance with the requirements of 38 U.S.C.A. § 17.54.

The Veteran in this case had not been granted service connection for any dental disabilities.  Furthermore, there is no indication provided in the medical evidence of record that the Veteran's non service-connected dental disability was in any way related to or aggravating a service-connected disability.  Although the Veteran's June 2010 private treatment record indicates that he was also noted to have a diagnosis of hypertension, for which he is service-connected, as well as chronic pain from other injuries, there was no discussion relating those conditions to his present complaint of dental pain for which he was treated.  Additionally, the Veteran was not shown to be participating in a vocational rehabilitation program.  However, the Veteran is currently receiving compensation for a total disability rating due to individual unemployability (TDIU) as well as benefits for Dependent's Education Assistance (DEA) based upon a finding of total service-connected disability permanent in nature.  See Rating Decision, dated December 30, 2009.  As such, the Veteran meets the criteria of 38 U.S.C.A. § 1728(a)(3) for unauthorized necessary care of any disability when there is a total disability permanent in nature, resulting from a service-connected disability and, as such, the Board must turn to whether the Veteran meets the criteria for subsections (b) and (c) of that statute as well. See Zimick, 11 Vet. App. at 49; Hayes, 6 Vet. App. at 68.  

In regard to 38 U.S.C.A. § 1728(b), the Board finds that the Veteran was not administered services in a medical emergency of such nature that delay would have been hazardous to life or health.  On June 5, 2010, the Veteran sought treatment for a complaint of jaw pain, to include a toothache and swelling of the jaw and face.  This condition had onset several days prior and the pain was described as moderate.  The examiner noted moderate localized dental decay with gingival tenderness and induration (upper left second molar and third molar).  The clinical impression was dental pain.  The examiner determined that the Veteran's condition was stable and he was discharged, with pain medication and referral to a dental provider.

There is no indication in the private treatment record for the June 2010 visit that the Veteran's complaints were such that constituted an emergency.  Rather they reflected treatment for a condition that, by the Veteran's own assertions, was moderate.  It is also noted that the Veteran's condition had continued for several days prior, yet it was not until after the passage of a certain amount of time that he felt compelled to actually seek medical treatment.  Had such a condition been truly perceived to be an emergency, it is reasonable to believe that the Veteran would have sought such treatment immediately rather than waiting several days.  Additionally, upon discharge the Veteran's condition was noted as stable, though there is no indication in the treatment record that any treatment other than the examination itself was provided, thereby indicating that the Veteran was never truly in danger of a hazard to life or health, regardless of what he may have thought.  Last, there are no medical opinions of record to suggest that a prudent layperson, in the same situation as the Veteran, would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  

In the alternative, the Board also finds that the Veteran does not meet the requirements of 38 U.S.C.A. § 1728(c).   There is no indication in the record that VA or other Federal facilities were not 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.  Again, the record is absent for any credible showing as to why the Veteran could not feasibly utilize VA or other Federal facilities for his dental condition, as it is shown that the Veteran resides in Pooler, Georgia, outside of the greater Savannah, Georgia area, from where he regularly received treatment at the Savannah Outpatient Treatment Clinic of the VA Medical Center in Charleston, South Carolina.  Although the Veteran claims that he was denied service at his normal VA outpatient facility, there is nothing in the record which corroborates that.  There is also no indication, as discussed above, that the Veteran sought authorization for his private service on June 5, 2010, nor has the Veteran provided any statements or explanations as to why attempting to obtain such would not have been reasonable, sound,  wise, or practicable.  Last, as there is no indication that treatment had been refused, there is also no indication given in the Veteran's medical records that treatment would have been refused if he had gone to a VA clinic.

Therefore, because the Veteran does not meet all three subsections of 38 U.S.C.A. § 1728, because he does not meet subsections (b) and (c), the Veteran is unable to meet the criteria for reimbursement.  The Board will next consider whether the criteria for reimbursement under 38 U.S.C.A. § 1725 are met.  

Analysis under 38 U.S.C.A. § 1725

The Veterans Millennium Health Care and Benefits Act provides that payment or reimbursement for emergency services for nonservice-connected disorders in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. 
§§ 17.1000-1003.  38 U.S.C.A. § 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177, and is referred to as the "Millennium Bill Act."

The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000.  See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556.  A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date.  See 66 Fed. Reg. 36,467 (2001).  In this case, the service rendered occurred after the effective date of the "Millennium Bill Act."  Therefore, it is potentially applicable to the current appeal.

In this regard, the Veterans Millennium Health Care and Benefits Act 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 (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and 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; 38 C.F.R. § 17.1000-1008.  To be eligible for payment or reimbursement for emergency services for non-service connected disorders in non-VA facilities, the Veteran has to 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 disorder 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) (not applicable here); and,

i) The Veteran is not eligible for reimbursement under 38 U.S.C.A. 1728 for emergency treatment provided.

38 C.F.R. § 17.1002. 

Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses.

On October 10, 2008, S. 2162, designated as the Veterans' Mental Health and Other Care Improvements Act of 2008, was signed by the President.  This bill makes various changes to Veteran's mental health care and also addresses other health care related matters.  Relevant to the instant case, the new law amends 38 U.S.C.A. §§ 1725 and 1728 to make mandatory, as opposed to discretionary, the reimbursement of the reasonable value of emergency treatment of an "eligible" Veteran furnished by a non-VA facility, if all of the pertinent criteria outlined above are otherwise satisfied.  See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110, 4123-24 (2008).  Additionally, this amendment added a provision, which essentially expands one of the criteria that defines the meaning of "emergency treatment" to include treatment rendered until such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer, or 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.  Id.; 38 U.S.C.A. §§ 1725.

With the aforementioned criteria in mind, the Board will now review the pertinent facts from the private treatment records located in the Veteran's claims file.  On June 5, 2010, the Veteran sought treatment for a complaint of jaw pain, to include a toothache and swelling of the jaw and face.  This condition had onset several days prior and the pain was described as moderate.  Upon examination it was noted that the Veteran also complained of a headache and chronic joint pain.  However, there was no discussion regarding any kind of relationship between those additional complaints and the Veteran's primary complaint of dental pain.  The examiner noted moderate localized dental decay with gingival tenderness and induration (upper left second molar and third molar).  The clinical impression was dental pain, hypertension, and chronic pain from prior injuries.  The examiner determined that the Veteran's condition was stable and he was discharged.

The Veteran has indicated in his February 2011 notice of disagreement that he initially sought treatment for this condition from the VAMC, but was told to seek out treatment at any nearby medical facility.  The Veteran has further stated in his May 2011 VA Form 9 that he did not go to Candler Hospital on June 5, 2010 for treatment of a dental condition, but rather for a headache condition that was related to his service-connected traumatic brain injury.

The Veteran's claim was denied by the VAMC in February 2011 because the VAMC found that a medical emergency did not exist.  Specifically, the Veteran's care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health.

Applying the above facts to 38 U.S.C.A. § 1725, the Board finds that the criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred June 5, 2010, are not met.  The Board will address each requirement under 38 U.S.C.A. § 1725 individually.  Id.

First, the Board finds that the Veteran incurred private medical expenses at the Candler Hospital on June 5, 2010, for dental pain.  The Veteran has disputed this fact.  However, the Board finds that the Veteran's statements in this regard, while competent, are not credible, as it is evidenced by the private treatment notes of record that the Veteran was seen for dental pain.  Id.  Although the Veteran has indicated that he was not seen for dental treatment, but rather for a headache, there is nothing in the record that supports this assertion.  The Board notes that a complaint of headache was noted at the time of the June 5, 2010 examination, but there was no discussion relating that symptom to the Veteran's complaints of dental pain.  The primary complaint and diagnosis provided by the examiner was for a dental condition.

Second, the Board finds that the VA payment or reimbursement of the private medical expenses incurred on June 5, 2010, at the Candler Hospital was not authorized.  This fact is not in dispute, as evidenced by the current appeal.  Id.

In regards to the third requirement, the Board finds that the private medical expenses were not for emergency treatment, and that the Veteran's symptoms on June 5, 2010, 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.  

There is no indication in the private treatment record for the June 2010 visit that the Veteran's complaints were such that constituted an emergency.  Rather they reflected treatment for a condition that, by the Veteran's own assertions, was moderate.  It is also noted that the Veteran's condition had continued for several days prior, yet it was not until after the passage of a certain amount of time that he felt compelled to actually seek medical treatment.  Had such a condition been truly perceived to be an emergency, it is reasonable to believe that the Veteran would have sought such treatment immediately rather than waiting several days.  Additionally, upon discharge the Veteran's condition was noted as stable, though there is no indication in the treatment record that any treatment other than the examination itself was provided, thereby indicating that the Veteran was never truly in danger of a hazard to life or health, regardless of what he may have thought.  Last, there are no medical opinions of record to suggest that a prudent layperson, in the same situation as the Veteran, would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  

Therefore, the Board finds that the third requirement has not been met.  As the third requirement is not met, the Board does not need to address the remaining requirements, as the Veteran must meet all of the requirements in order for the medical expenses to be reimbursed.  In light of the foregoing, the Board concludes that each of the criteria for entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred at the Candler Hospital on June 5, 2010 are not met.  

The Board has considered the Veteran's arguments, but the Board notes that, in the absence of authorizing statutory or regulatory authority, the Board may not award payment or reimbursement of the private medical expenses at issue.  Zimick v. West, 11 Vet. App. 45, 50 (1998), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (payment of money from the [Federal] Treasury "must be authorized by a statute").  The benefit sought by the Veteran is not authorized under the circumstances of his claim, and the claim must be denied.


ORDER

Entitlement to payment or reimbursement for the cost of private medical expenses incurred at Candler Hospital on June 5, 2010, is denied.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs