Citation Nr: 1507983	
Decision Date: 02/24/15    Archive Date: 02/26/15

DOCKET NO.  12-23 233	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs North Florida/South Georgia Veterans Health System in Gainesville, Florida.


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses, incurred on January 9, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel

INTRODUCTION

The Veteran served on active duty from November 2004 to November 2009.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 administrative decision issued by the North Florida/South Georgia Veterans Health System in Gainesville, Florida.

To ensure a total review of the evidence, the Board has reviewed the paper claims file for this case and the electronic files for this case on the Virtual VA system and the Veterans Benefits Management System (VBMS).

FINDING OF FACT

The medical care the Veteran received on January 9, 2012 was not for a condition that a prudent layperson would have reasonably expected that a delay in treatment would have been hazardous to life or health.

CONCLUSION OF LAW

The criteria for payment or reimbursement for medical services, incurred on January 9, 2012, have not been met.  38 U.S.C.A. §§ 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 17.52(a), 17.120, 17.121, 17.1000-17.1008 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

                                                      VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VCAA notice was sent to the Veteran in June 2012.  The Veteran has received all essential notice, and has had a meaningful opportunity to participate in the development of the claim.  In sum, the Board concludes that the requirements for the fair development of the appeal have been met in this case.

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are the private medical records which are the subject of this claim.  The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Analysis

A review of the record reveals that the Veteran sought medical treatment for his back from a private chiropractor on January 9, 2012.  The Veteran seeks reimbursement of these medical expenses.  The Veteran is service-connected for lumbar spine disability.

When the Veteran receives treatment at a non-VA facility without prior authorization, as in this case, there are two statutes that allow for him to be paid or reimbursed for the medical expenses incurred for that treatment if required criteria are met.  38 U.S.C.A. §§ 1725 and 1728.

In general, under 38 U.S.C.A. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, 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, (2) for a nonservice-connected disability 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 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); and

(b) the treatment was for a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention 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 authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.

All three statutory requirements found in 38 U.S.C.A. § 1728 must be met before the reimbursement may be authorized.  38 C.F.R. § 17.120; Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Veterans Millennium Health Care and Benefits Act also 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 (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 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 under this Act, 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 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) The Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for or in part, the Veteran's liability to the provider;

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

Failure to satisfy any of the criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility.  38 U.S.C.A. § 1725(b); 38 C.F.R. § 17.1002.

In the present case, the evidence does not show, and the Veteran does not contend, that he sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred on January 9, 2012.

The Veteran's claim for payment or reimbursement of unauthorized, private medical expenses associated with treatment provided to the Veteran on January 9, 2012 was denied because it was found that the Veteran's condition for which he received treatment was not emergent.

The Court has held that both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a "medical emergency." That is, VA should weigh "the totality of the circumstances" to determine whether a prudent layperson would consider the situation emergent.  Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009).  The Court has noted that when weighing the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent, the Board may consider objective evidence.  Similarly, the Board may consider evidence regarding whether the treatment ultimately rendered was for an emergent condition.  Id at 265-66.

The record reflects that on January 9, 2012 the Veteran sought treatment from a private chiropractor for sore shin splints that resulted in the chiropractor making "adjustments" to the Veteran's back.  While complaints of pain in the shins were noted, there is nothing in the January 9, 2012 private chiropractor's medical record indicating that the Veteran's treatment received involved a hazard to the Veteran's health or life.

After a review of the evidence, lay and medical, the Board finds that a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health.  In this regard, the Veteran indicated in a statement received in January 26, 2012 that no emergency had existed at the time he sought treatment on January 9, 2012 and that he had sought treatment for shin splints.  In fact, the Board notes that the Veteran's notice of disagreement received in March 2012 does not assert that his January 9, 2012 treatment was emergent.

The Veteran is competent to report symptoms such as pain.  The available evidence, however, including the Veteran's own statements, do not reflect that the treatment in question was for a sudden, generally unexpected occurrence or set of circumstances demanding immediate action or that a delay would have been hazardous to the Veteran's life or health.

In sum, the totality of the evidence shows that, on January 9, 2012, the Veteran did not have acute symptoms of sufficient severity, including severe pain, such that a prudent layperson who possesses an average knowledge of health and medicine, such as the Veteran, 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 is aware that the Veteran expressed frustration in that VA had not, according to the Veteran, provided him chiropractic care in a timely or sufficient manner.  While sympathetic with the Veteran's frustration over any delay in treatment, even assuming that that a VA facility was not feasibly available, such a fact is not relevant in this case because the Veteran's situation was not emergent.

Given the finding that the medical care received on January 9, 2012 does not meet the prudent layperson standard and that all statutory requirements must be met before any payment may be authorized, discussion of the other requirements for payment or reimbursement are rendered moot.  38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728.

ORDER

Payment or reimbursement of unauthorized medical expenses incurred in connection with treatment on January 9, 2012 is denied.


____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs