Citation Nr: 1537842 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 13-18 474A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in West Palm Beach, Florida THE ISSUE Entitlement to payment or reimbursement for the costs of private medical expenses incurred for unauthorized service provided at a non-VA medical facility on March 1, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 decision of the Department of Veterans' Affairs (VA) Medical Center in West Palm Beach, Florida. The issue on appeal was previously before the Board in May 2015 when it was remanded to cure a procedural defect. FINDINGS OF FACT 1. The Veteran has no service-connected disabilities and is not participating in a rehabilitation program. 2. VA did not provide prior authorization for the medical services provided on March 1, 2011. 3. The treatment received on March 1, 2011 was not for a condition 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. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred on March 1, 2011 have not been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.54, 17.120, 17.1000-1008 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA must assist a claimant at the time he or she files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2014). As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). There is no indication in these provisions, however, that Congress intended to revise the unique, specific claim provisions of 38 U.S.C. Chapter 17. 38 C.F.R. §§ 17.120-17. 132 Barger v. Principi, 16 Vet. App. 132 (2002). In this regard, the provisions of Chapter 17 of 38 U.S.C.A., and 38 C.F.R. Part 17, contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-32 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. A 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." 38 C.F.R. § 17.124. When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and basis for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17 of Chapter 38. 38 C.F.R. § 17.132. A March 2012 letter from the VAMC explained to the Veteran the basis for the denial of the claim for the benefits sought and notified him of his appellate rights. There is no indication that there is any relevant evidence outstanding in this claim. The Board finds the current record sufficient to make a decision on the claim. As the issue involves a prudent lay person's finding of emergency, rather than a medical determination, the Board finds that a medical opinion is not necessary to decide the claim. 38 U.S.C.A. § 1725(f)(1); Swinney v. Shinseki, 23 Vet. App. 257 (2009). Hence, the Board may address the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Criteria and analysis A veteran may be eligible for payment or reimbursement for medical services not previously authorized in accordance with 38 U.S.C.A. §§ 1725 or 1728. See Hennessey v. Brown, 7 Vet. App. 143 (1994). Entitlement to payment or reimbursement of medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728 requires that: (a) the care and services rendered were for an adjudicated service-connected disability, for a non service-connected disability associated with and held to be aggravating an adjudicated service- connected disability, for any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or 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 services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) no VA or other Federal facilities were 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 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). The Veterans Millennium Health Care and Benefits Act (VMHCBA) also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility to those veterans who are active VA health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of a VA 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. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-100 8. Pursuant to 38 C.F.R. § 17.1002, payment or reimbursement under 38 U.S.C.A. § 1725 for emergency treatment for non service-connected disabilities in non-VA facilities is only allowed if all of the following criteria are met: (a) The emergency services were provided in a hospital emergency department or 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 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 was 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 function, 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) 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; (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 the 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 for a denial of payment); (g) 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; and (h) The veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. As a preliminary matter in adjudicating a claim for reimbursement of medical expenses, the Board 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); Smith v. Derwinski, 2 Vet. App. 378 (1992); see also 38 C.F.R. § 17.54. This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555 (1994). The admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. 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. In this case, the Veteran is seeking entitlement to payment or reimbursement from VA concerning medical expenses incurred for services rendered at Indian River Medical Center on March 1, 2011. Treatment records from Indian River dated on March 1, 2011 indicate that the Veteran presented to the emergency department with complaints of flank pain which was described as very severe. The pain had been present for 24 hours. The Veteran thought he had a kidney stone. He had one ten years prior and felt the same way then as he did at presentation. He presented at the emergency room the day before but left because it was too busy. Another annotation in the record reveals the Veteran left the emergency room the day before because children were making too much noise. The Veteran reported in his March 2012 notice of disagreement and June 2013 VA Form 9 that it was the weekend when he visited Indian River on March 1, 2011, that any VA clinic was closed, that the closest VA emergency department was over 65 miles away, and that he did not have anyone who could take him to the VA emergency room. He further wrote that, the second time he went to the emergency room, he was told by an Emergency Medical Technician that he could be having a stroke and to get to an emergency room as soon as possible. Therefore, he went to the Indian River emergency department to be evaluated because it was only 6 miles from his home. In support of his claim, the Veteran submitted a letter from firefighter/paramedic G.A. who stated that he had spoken with the Veteran in January 2011 regarding a problem that he was having with his vision where he would see spots of grey. This problem was of recent onset. G.A. knew that the Veteran had experienced medical problems in the past, he informed the Veteran that some of his symptoms could have been stroke related, and he advised the Veteran to "go immediately to the nearest hospital" to rule out any dangerous outcomes. The statement from G.A. does not address, in any way, the Veteran's seeking treatment on March 1, 2011. There is no evidence that the Veteran contacted VA at any time prior to his treatment at Indian River on March 1, 2011 and he has not indicated that VA provided authorization prior to his non-VA treatment on that date. Documents associated with his file indicate that he did not advise VA of his private treatment until days following such treatment. Hence, the Board finds that VA did not give prior authorization for the Veteran's treatment at Indian River on March 1, 2011. As for whether the Veteran is entitled to payment or reimbursement for the expenses incurred due to his unauthorized treatment, he has no service-connected disabilities and there is no evidence that he is a participant in a rehabilitation program. Therefore, reimbursement for his private medical expenses under 38 U.S.C.A. § 1728 is not warranted. 38 U.S.C.A. § 1728; C.F.R. § 17.120. With regard to whether the Veteran is entitled to payment or reimbursement under the VMHCBA pursuant to 38 U.S.C.A. § 1725, the Board finds that the treatment received on March 1, 2011 was not for a condition 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. The treatment received on that date was for abdominal pain which had been present for 24 hours. The Veteran had actually gone to the emergency room the prior day for the same symptoms but left because it was too busy or noisy. The Board finds that if, in fact, the Veteran believed his situation required emergency treatment, he would have stayed at the emergency room the prior day until he received treatment. The Veteran's leaving the emergency room the prior day due to it being busy or noisy totally undercuts any argument the Veteran may have regarding his perception that the abdominal pain required emergency treatment. The Veteran reported on presentation that he thought he was having a kidney stone and that he had had one in the past. There is no indication that the Veteran thought that the treatment required for a kidney stone was of an emergent nature. The Veteran has not reported that he had to seek emergency treatment for his prior kidney stone. The Board finds the Veteran's statement to be not credible. The Veteran's reference to having been informed by an EMT that his symptoms required emergency treatment in March 1, 2011 was not supported by the statement from the EMT. The EMT's statement was in reference to the Veteran's complaints of sudden vision problems without any indication at all that the Veteran had been advised to seek emergency treatment for abdominal pain. Additionally, the Veteran has argued in his notice of disagreement that he was unable to go to the VA clinic on March 1, 2011 because it was a Saturday. The Board takes judicial notice of the fact that March 1, 2011 was a Tuesday. These contradictions seriously undercut the probative value of the Veteran's self-reported medical history regarding his seeking treatment on March 1, 2011. There is no indication that the Veteran believed he was experiencing a mini-stroke on March 1, 2011. Given the above facts, the Board finds that a reasonably prudent layperson would not have believed that the abdominal pain the Veteran sought treatment for required emergency treatment. In light of the above, the Board finds that the criteria for payment or reimbursement of the unauthorized medical expenses incurred on March 1, 2011 under the VMHCBA have not been met. There is no other avenue for the Veteran to pursue reimbursement. Hence, the appeal is denied. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. ORDER Entitlement to payment or reimbursement for the costs of private medical expenses incurred for unauthorized service provided at a non-VA medical facility on March 1, 2011 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs