Citation Nr: 1514289 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 13-03 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of private medical expenses incurred at the Shands Jacksonville Medical Center on December 23, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active from December 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 decision of the Department of Veterans Affairs (VA) North Florida/ South Georgia Veterans Healthcare System in Gainesville, Florida. The Board notes, that in addition to the paper claims file, there are also Virtual VA and VBMS paperless files associated with the Veteran's claim. A review of the documents in such file reveals that an Informal Hearing Presentation has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative in the paper claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is service-connected for one disability: lumbosacral strain, currently evaluated at 10 percent disabling. 2. The Veteran incurred private medical care at the Shands Jacksonville Medical Center in Jacksonville, Florida, on December 23, 2011, for treatment of headaches. 3. VA payment or reimbursement of private medical care was not authorized in advance. 4. The private medical treatment administered on December 23, 2011, was not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. 5. The Veteran's symptoms on December 23, 2011, were not of a nature that a prudent person would have reasonably expected that delay in seeking immediate medical care would have been hazardous to life or health. 6. On December 23, 2011, a VA facility was available for the treatment of the Veteran's symptoms. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for unauthorized medical expenses incurred at the Shands Jacksonville Medical Center on December 23, 2011, have not been met. 38 U.S.C.A. §§ 1703, 1712, 1725, 1728 (West 2014); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.93, 17.120, 17.121, 17.161, 17.1000 - 17.1008 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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 further determined 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 payment or reimbursement for the cost of private 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. and 38 C.F.R. contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 (2014) discuss the adjudication of claims for 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 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. VA complied with these provisions in this case. In January 2012, the Veteran was notified as to why his claim was denied. Although brief, the Veteran's subsequent comments have been responsive and he can reasonably be expected to understand what is needed. Medrano v. Nicholson, 21 Vet. App. 165 (2007). He has been afforded a meaningful opportunity to participate effectively in the processing of his claim. All records pertaining to the treatment at issue have been obtained. Consequently, the duties to notify and assist have been met. Factual Background and Analysis The Veteran was admitted to the Shands Jacksonville Medical Center on December 23, 2011, for severe headaches. The record reflects that the Veteran arrived by private vehicle and was ambulatory, and that he reported he had been experiencing headaches for the past two days while riding in his car. The Veteran also associated left eye pain and photophobia to his headaches. He denied any trauma and described his headaches as a pressure. The clinician noted that the Veteran had been putting ice on the left side of his head and that he felt much better now. The clinician further noted that the condition was "not sudden onset, not maximal at onset, not worst headaches (HA) of [his] life." Upon physical examination, the Veteran was alert and oriented in three spheres. An examination of the Veteran's head revealed that his temples were non-tender; that there was no swelling or crepitus; that his neck was supple; and that a full range of motion was present. The Veteran was discharge from the emergency room on the same day and recommended a follow-up with an ophthalmologist in one week. The Veteran is seeking reimbursement or payment for the cost of private medical expenses incurred in December 2011. The Veteran contends, in essence, that the treatment for his private medical care was authorized by VA through VA Tele-care. Also, the Veteran maintains that he is unemployed due to prostate cancer, and is unable to pay the cost of such private medical expenses due to financial hardship. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2014). In Smith v. Derwinski, 2 Vet. App. 378 (1992), the Court noted that emergency medical care received from a non-VA hospital requires specific authorization pursuant to 38 C.F.R. § 17.54. The veteran in Smith argued that his non-VA care was authorized because his VA treating physician had informed him that arrangements were made for him to be treated at a non-VA medical facility. The Court, in rejecting that contention, observed that the advice of a doctor to go to a non-VA hospital is not the specific type of authorization of payment contemplated in the VA regulation. Here, the information of record reveals that the Veteran called the VA Tele-care hotline on December 22, 2011, and complained of severe headaches. The Veteran was advised to seek medical treatment right away. He verbalized understanding and compliance and stated he was too sick to drive to Gainesville, informing that he would go to the local emergency room. The VA Tele-care operator also noted that she read the following financial disclaimer to the Veteran: "This is not an authorization for VA payment and 'To have hospital contact the nearest VA facility for transfer upon stabilization.'" In doing so, this financial disclaimer placed the Veteran on notice that he had no prior authorization for VA payment of private medical services. On December 23, 2011, the Veteran was admitted to the Shands Jacksonville Medical Center for complaints of severe headaches. Accordingly, given these particular facts, the Board finds that VA payment or reimbursement of the cost the private medical expenses incurred on December 23, 2011, at the Shands Jacksonville Medical Center were not authorized in advance by VA. 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) For veterans with service connected disabilities. 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 disabilities 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 (does not apply outside of the States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico); (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. Ch. 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and, (b) In a medical emergency. 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) When Federal facilities are unavailable. 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 statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45, 49 (1998); see Hayes v. Brown, 6 Vet. App. 66, 68 (1993). The above evidence demonstrates that the Veteran did not seek treatment for a condition associated with a service-connected disability. Regarding the first element, the Veteran is service-connected for lumbosacral strain, but the record evidence demonstrates that the Veteran sought treatment for severe headaches and associated left eye pain and photophobia. Thus, the Veteran did not seek treatment for a condition associated with a service-connected disability. Regarding the second element, in a January 2012 medical opinion, the VA physician determined that the Veteran's care was non-emergent. There are no contrary medical opinions of record, nor does the Veteran argue that he was seeking treatment for an emergency. There are no medical opinions of record to suggest that the Veteran's symptoms were an emergency of such nature that a delay would have been hazardous to life or death. When the Veteran was admitted to the emergency room, he described his headaches symptoms for the past two days without sudden onset or trauma, which does not support the belief that his symptoms were in an emergency of such nature that delay would have been hazardous to life or health. The symptoms did not appear quickly; instead, they had been present for two days and the Veteran could have sought treatment from the VAMC prior to the emergency treatment. Thus, the second requirement has not been satisfied. Regarding the third element, a VA or other Federal facility/provider was feasibly available on December 23, 2011, for the Veteran to seek treatment. In a January 2012 medical opinion, a VA physician determined that the Gainesville, Florida VAMC and Lake City, Florida VAMC facilities are open 24 hours per day and seven days per week to provide urgent and emergent care. There are no contrary opinions of record to indicate that treatment from a VA or other Federal facility/provider was not feasibly available on December 23, 2011. There is also no evidence that an attempt to use the available VA facilities beforehand, or obtain prior VA authorization for services required would not have been reasonable, sound, wise or practicable, or treatment had been or would have been refused. At the private emergency room, the Veteran reported symptoms for the past two days, he arrived by private vehicle and was ambulatory, which means that the Veteran could have gone to an available VA facility during that time for treatment. Thus, the third requirement has also not been satisfied. Therefore, the Veteran is unable to meet the criteria for reimbursement under 38 U.S.C.A. § 1728, as the Veteran has not satisfied all of the three requirements. The Board will next consider whether the criteria for reimbursement under 38 U.S.C.A. § 1725 are met. Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. The provisions of the Act became effective as of May 29, 2000. To be eligible for reimbursement under this authority, 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 condition 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 transferred to a VA or other Federal facility; (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) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran's liability to the provider; (i) The Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided (38 U.S.C. § 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). 38 C.F.R. § 17.1002. The criteria are conjunctive, not disjunctive; thus all criteria must be met. Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). 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 December 23, 2011, 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 Shands Jacksonville Medical Center on December 23, 2011, for his emergency room treatment. This fact is not in dispute, as it is evidenced by the private treatment notes of record. Second, the Board finds that the private medical expenses incurred on December 23, 2011, at the Shands Jacksonville Medical Center were not authorized in advance. The Veteran has alleged that he received authorization from the VA Tele-care, however, the record from this telephone conversation clearly stated that there was no authorization for VA payments and that he must have the hospital contact the nearest VA facility to transfer him upon stabilization. In this regard, the fact that the Veteran was told to seek immediate medical attention did not relieve the Veteran of his obligation, under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002(c), to seek feasibly available VA treatment, given that he had experienced headache symptoms for one day prior. Hence, the second requirement has not been met. In regards to the third requirement, the Board finds that the private medical expenses were not for emergency treatment, and the Veteran's symptoms on December 23, 2011, were not 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. Specifically, in a January 2012 medical opinion, the VA reviewing physician determined that the Veteran's care was non-emergent. There are no other contrary medical opinions of record. 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 for the past two day when he appeared at the emergency room, 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. The symptoms did not appear quickly and the Veteran denied experiencing any trauma; instead, they had been present for two days, and the Veteran could have sought treatment from the VAMC prior to the emergency treatment. The third requirement has not been met. Regarding the fourth element, a VA or other Federal facility/provider was feasibly available and an attempt to use such provider beforehand would have been considered reasonable by a prudent layperson. In a January 2012 medical opinion, the VA reviewing physician determined that the Gainesville VAMC and Lake City VAMC are open 24 hours per day and seven days per week to provide urgent or emergent care. There is no contrary opinion of record. There is no documentation or assertions that the Veteran tried to seek treatment from the VAMC first for these symptoms, even though the Veteran had been experiencing the symptoms for two days. The private emergency room record revealed that the Veteran arrived by private vehicle and was ambulatory, thus, it would have been considered reasonable by a prudent layperson to seek treatment at the VAMC before heading to an emergency room. Thus, the fourth requirement has not been met. Therefore, the Board finds that the third and fourth requirements have not been met. As these requirements are 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 Shands Jacksonville Medical Center on December 23, 2011, are not met. The Veteran has also argued that repayment will cause financial hardship because he is unemployed and going through prostate cancer treatment. Although the Board is sympathetic to the Veteran's financial situation, the law does not provide for equitable relief in this situation. Reimbursements for unauthorized medical expenses cover only specific factual scenarios, which are restricted to emergency services where VA treatment is not feasibly available. The Board has no authority to disregard these requirements. As such, the Board is compelled to conclude that, in light of the circumstances discussed above, alternative VA treatment was feasibly available and an attempt to seek VA treatment beforehand would have been considered reasonable by a prudent layperson. Consequently, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to reimbursement of unauthorized medical expenses incurred at the Shands Jacksonville Medical Center on December 23, 2011, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs