Citation Nr: 1454530 Decision Date: 12/10/14 Archive Date: 12/16/14 DOCKET NO. 08-06 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred for treatment at a non-VA medical facility on November 3, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to June 1980 and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Canandaigua, New York. The appeal was previously remanded by the Board in September 2009, November 2011, and January 2014. FINDINGS OF FACT 1. The Veteran incurred private medical expenses at the Alice Hyde Medical Center on November 3, 2007 for treatment of left shoulder pain. 2. At the time of the November 2007 treatment, service connection was not in effect for any disabilities, and the Veteran was not participating in a rehabilitation program. 3. VA payment or reimbursement of the private medical care was not authorized in advance. 4. The Veteran's symptoms on November 3, 2007 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. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred at the Alice Hyde Medical Center on November 3, 2007, have not been met. 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 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist 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 (2014). 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 38 U.S.C. (West 2002 & Supp. 2013) and 38 C.F.R (2014) contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 (2014) discuss the adjudication of claims for payment or reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124 (2014), 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 payment or 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 (2014). 38 C.F.R. § 17.132 (2014). The Veteran was provided with the notice required by the VCAA 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 hospital and obtaining a medical review of the records by the Canandaigua, New York 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. The Board is also satisfied as to substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the medical records from the Alice Hyde Medical Center for the date of service, seeking any VA medical records generated around the proximate time period he was treated in November 2007, and giving the Veteran the opportunity to submit any information that is not evidenced by the record to show that his situation was an emergency, which he did not do. The Board finds that the Veteran, through his lay statements submitted throughout the appeal period, demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to VA. The Board finds that there is no prejudicial error. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the Veteran has not alleged any prejudicial error in the content or timing of the notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of showing there is a notice error in timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duties to notify and assist have been satisfied in this case. Finally, the remand included re-adjudicating the claim, which was accomplished in the July 2014 supplemental statement of the case. Thus, for the aforementioned reasons, the Board finds that there has been substantial compliance with its remand directives. Id. 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. Medical Expense Reimbursement 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 (2014); 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) (2014); (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). The Veteran in this case had not been granted service connection for any disability. In the absence of a grant of service connection for any disability, the Veteran was not participating in a vocational rehabilitation program, could not claim that a disorder for which service connection was not in effect was aggravating a service-connected disability, and was not in receipt of a total disability evaluation for service-connected disability. The Veteran does not contend that any grant of service connection awarded since 2007 became effective prior to the date of the treatment at issue. Therefore, the Veteran is unable to meet the criteria for reimbursement under 38 U.S.C.A. § 1728. 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 that VA has an agreement with to furnish health care services for veterans 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) 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; (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 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) (not applicable here); and, h) 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. During the course of the Veteran's appeal, the Board notes that, 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. The Board will consider and apply the amended version of 38 U.S.C.A. § 1725 , which is more favorable to the claimant because it liberalized the law by mandating reimbursement and expanding the definition of emergency treatment. 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 November 3, 2007, the Veteran went to the Alice Hyde Medical Center emergency department with complaints of left shoulder pain. He walked into the hospital and indicated, in pertinent part, that he had been driving the day before (Friday) and had stopped quickly, causing his left shoulder to become jammed. He indicated in a pain assessment of having pain at 9-10/10. He was prescribed Naproxen, Flexeril, and Tramadol. He was discharged and referred to the VA outpatient clinic in Malone. The final diagnosis was shoulder pain, suspect bursitis. He was discharged the same day. The first evidence of medical treatment after his initial treatment in November 2007, was in March 2008. X-rays showed a normal left shoulder examination. An MRI showed findings consistent with tendinopathy. There appeared to be a focal muscle tear and some arthritic changes at the acromioclavicular joint. In his NOD, the Veteran stated that he did not go to the VAMC Albany, because it was 250 miles away and he could not go to the VA outpatient clinic in Malone because it was a Saturday and the clinic was closed. He also stated that he called the VAMC in Albany, and that he was told to go to the nearest hospital if it was an emergency. In his substantive appeal, he stated that the VAMC in Albany was 400 miles away, he had no other insurance, and he was in "real bad" pain. The Veteran's claim was denied by the VAMC in January 2008 because the VAMC found that a medical emergency did not exist. Specifically, it was indicated, in pertinent part, that VA facilities were available to provide the Veteran needed care. 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 on November 3, 2007, 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 Alice Hyde Medical Center on November 3, 2007, for left shoulder pain. This fact is not in dispute, as it is evidenced by the private treatment notes of record. Second, the Board finds that the VA payment or reimbursement of the private medical expenses incurred on November 3, 2007, at the Alice Hyde Medical Center was not authorized. This fact is also not in dispute, as evidenced by the current appeal. 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 November 3, 2007, 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. Specifically, in a January 2008 medical opinion, the VAMC Chief Medical Officer determined that an emergency situation did not exist for the Veteran. The Chief Medical Officer reasoned that VA facilities were available for the care the Veteran received. Of import, the Veteran previously related that he was unable to go to the VA outpatient clinic in Malone because it was Saturday and the clinic was closed. However, the record showed that he actually injured his left shoulder on the day before (Friday), a day wherein the VA outpatient clinic would have been open and he could have gone for treatment for his left shoulder pain. Additionally, there is nothing in the record to show that the Veteran's left shoulder complaints were an emergency. It is reflected in the record that he walked into the emergency department and when he left, he walked out. He was not rushed to the hospital via ambulance or paramedic and nothing indicated that he required any assistance. Moreover, he was referred to the VA outpatient clinic in Malone for care thereafter. The record indicates that he did not come for further treatment to the VA outpatient clinic in Malone until March 2008, 4 months later. Besides the Veteran's lay statements, the medical evidence of record does not document that his symptoms were of an emergent nature. 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. Further, the Veteran reported symptoms occurred the day before when the VA outpatient clinic was open, which does not support the belief 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. Since the injury occurred earlier, the Veteran could have sought outpatient treatment on that Friday, or waited until the Monday, instead of seeking emergency treatment at a private facility. 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 Alice Hyde Medical Center on November 3, 2007, are not met. The Board has considered the Veteran's arguments, but 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 the claim, and the claim must be denied. ORDER Entitlement to payment or reimbursement for the cost of private medical expenses incurred at the Alice Hyde Medical Center on November 3, 2007, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs