Citation Nr: 1548138	
Decision Date: 11/16/15    Archive Date: 11/25/15

DOCKET NO.  10-01 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Tacoma, Washington


THE ISSUE

Entitlement to payment or reimbursement of unauthorized, non-VA medical expenses incurred at the University of Washington Medical Center (UWMC) on August 23, 2008.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Lindio, Counsel



INTRODUCTION

The Veteran served on active duty from February 2002 to February 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision issued by the Department of Veterans Affairs (VA) Fee Services at the VA Medical Center (VAMC) in Tacoma, Washington, which denied the Veteran's claim for reimbursement of unauthorized non-VA medical expenses incurred at University of Washington Medical Center (UWMC) on August 23, 2008.

In May 2014, the Board denied the claim.  The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court).  In September 2015, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding it to the Board for further proceedings consistent with the joint motion.


FINDINGS OF FACT

1. VA did not provide authorization for the medical services at the UWMC on August 23, 2008.

2.  At the time the Veteran received treatment on August 23, 2008, service connection was in effect for posttraumatic stress disorder, rated as 30 percent disabling; lumbar strain, rated as 10 percent disabling; and traumatic brain injury, rated as 10 percent disabling.  He was not participating in a VA vocational rehabilitation program.

3.  On August 23, 2008, the Veteran received treated at the UWMC for complaints of mild dizziness, sweating, and thirst, which he described as dehydration.  The private medical provider diagnosed him with dehydration and abnormal creatinine.

4.  The Veteran was not treated on August 23, 2008 for a service-connected disability or a disability associated with and held to be aggravating a service-connected disability.

5.  The Veteran was not treated on August 23, 2008 for a condition that was 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 - that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.


CONCLUSION OF LAW

The criteria for payment or reimbursement of unauthorized non-VA medical expenses incurred at the UWMC on August 23, 2008 have not been met.  38 U.S.C.A. §§ 1703, 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.54, 17.120-21, 17.1000-08 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist
 
The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014).  In the instant case, after receipt of the administrative decision denying medical reimbursement in September 2009, the Veteran was provided with a letter explaining VA's duties to notify and assist in November 2009.  He was informed of his and VA's respective responsibilities in obtaining evidence and information in support of his claim.  Furthermore, the AOJ's issuance of a December 2009 Statement of the Case (SOC) cured any timing error, as the AOJ readjudicated the matter therein.  The United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter.  Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006).  The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  The SOC also included information to the Veteran of the elements necessary to substantiate his claim and the reasons why his claim had been denied. Additionally, there is no indication that there is any outstanding evidence necessary to decide the claim. 

Furthermore, it is very clear from the Veteran's communications that he is cognizant as to what is required of him and of VA.  Indeed, in his November 2009 VA Form 9, the Veteran specifically reported that his claim had been denied because "VA said that they are not able to pay the bill because the care was not prior authorized, it was not a service connected condition, and delay in treatment would not have been hazardous to my life or health."  Moreover, the Veteran has now been (though no longer is) represented by an attorney in this matter.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error").   The Veteran, his former attorney, and his current representative have not indicated there is any outstanding evidence relevant to this claim.

VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate.  

Relevant to the duty to assist, the AOJ obtained and considered the Veteran's service treatment records as well as post-service VA and private treatment records, to specifically include evidence of treatment at the UWMC on August 23, 2008.  Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II. Background and Analysis

On August 23, 2008, the Veteran received emergency treatment at the UWMC.  The Veteran contends that VA should pay for such treatment.

In his August 2009 notice of disagreement, the Veteran reported that on that Saturday, following a full day of playing volleyball, he felt his legs start to cramp, followed by his back and chest.  He further indicated that his lungs tightened and that it was hard for him to breathe.  He subsequently collapsed in the parking lot of a grocery store, and his fiancée contacted emergency services.  He also reported that he had informed the ambulance that he received care at the VA hospital, but that due to traffic the ambulance made the decision to get him to the closest hospital possible - the UWMC.  The Veteran then indicated that he received a diagnosis of severe dehydration and heat exhaustion, and a discovery of non-normal kidney function.  He additionally reported that he had collapsed from heat exhaustion two times in service.  

Overall, the Veteran argued that the responding paramedics made a determination, based upon their own judgment and expertise, to take him to the closest medical facility for treatment.  Hence, he appears to assert that the incident presented an emergency medical situation.  Also, the Veteran alleged further that he was treated for heat exhaustion on two occasions during his active duty service; hence, he alleges, he is prone to heat exhaustion, dehydration, and heat stroke as a result of these in-service occurrences.  Through this argument, the Veteran also appears to be asserting that the heat-related condition that precipitated the August 23, 2008 treatment in question was in some way service-related.

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.  In this case, the Veteran does not dispute that the August 23, 2008 private hospital treatment at issue was rendered without prior VA authorization.  Under the circumstances, payment is not warranted for expenses incurred in conjunction with that treatment based on prior authorization.  38 U.S.C.A. § 1703.

The provisions under 38 U.S.C.A. § 1728 and the implementing regulations (38 C.F.R. §§ 17.120-21) provide for payment or reimbursement of unauthorized medical expenses for the emergency treatment of adjudicated service-connected disabilities; non-service-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; any disability of a Veteran who has a total disability permanent in nature from a service-connected disability; or for any illness, injury or dental condition of a veteran is a participant in a VA vocational rehabilitation program.

Although the Veteran alleges that he had a previous episode of dehydration and heat exhaustion during his active duty service, the record reflects that service connection is not presently in effect for the Veteran for residuals of in-service dehydration, heat exhaustion, or other heat-related disability.  In that vein, the Board observes that service connection was in effect at that time for posttraumatic stress disorder, rated as 30 percent disabling; lumbar strain, rated as 10 percent disabling; and traumatic brain injury, rated as 10 percent disabling.  Similarly, the record shows that the Veteran had not been rendered permanently, totally disabled by any of his service-connected disabilities, or, that the private treatment rendered on August 23, 2008 was for any conditions related to any of his service-connected disabilities.  Finally, there is no evidence in the record that the Veteran qualifies for reimbursement under 38 U.S.C.A. § 1728 on the basis that he is participating in a VA vocational rehabilitation program.  Under the circumstances, there is simply no legal basis for awarding reimbursement under 38 U.S.C.A. § 1728 for the unauthorized non-VA treatment in question.

Alternatively, reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be granted under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-100 8), where all of the following conditions are satisfied: 

(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 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. 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; and 

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

As emphasized above, the above-noted criteria are conjunctive, not disjunctive.  As such, all of the foregoing criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). 

The payment or reimbursement by VA of treatment is non-discretionary if the requirements for such payment have been met.  The conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. 

The definition of the term "emergency treatment" is defined as medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (3) until such time as the Veteran can be transferred safely to a Department facility.  38 U.S.C.A. § 1725(f)(1)(B).

"Emergency treatment" is continued until such time as a veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if--(I) at the time a 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. 

The regulations do not require that a veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement.  Rather, the evidence must only show that the initial evaluation and treatment was 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 - that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.  38 C.F.R. § 17.1002(b); see also Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009).

The Board is of the opinion that the evidence in this case does not demonstrate that the August 23, 2008 treatment provided at the UWMC meets the definition of "emergency treatment" as contemplated under 38 U.S.C.A. § 1725.  In that regard, the evidence does not show that the situation necessitating the private treatment at issue was such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to his life or health.

The Veteran has reported, in conjunction with the current claim, that he had cramping in his legs, chest, and back, as well as tightness in his lungs and difficulty breathing, which caused him to collapse and obtain emergency treatment.  (August 2009 notice of disagreement).  The Board, however, finds that the August 23, 2008 UWMC emergency department note shows a very different symptomatology story.  

Per the August 23, 2008 UWMC emergency department note, the Veteran complained of dehydration and weakness, after playing sports for over six hours and not drinking enough liquid.  He indicated "I know what this feels like."  The examiner specifically noted that the Veteran denied any pain or dyspnea - which is in complete contrast to the Veteran's more recent report of severe cramping and difficulty.  The physician further noted that the Veteran complained of "mild dizziness, sweating and thirst."  The Board notes that the examiner did not report the Veteran's more recent complaints of inability to breathe and severe cramping, which he claims caused him to collapse.  

Furthermore, during the physician's review of systems the examiner again noted that the Veteran reported mild weakness, mild dizziness, and diaphoresis (sweating).  The Veteran again specifically denied having dyspnea, as well as, chest pain, nausea, vomiting, fever, chills, rigors or cough - again in contrast to his August 2009 notice of disagreement report of difficulty breathing.  The examiner found that a review of the Veteran's systems was negative.

Furthermore, the UWMC doctor specifically found that the Veteran "appears in no respiratory distress.  He is awake and alert speaking in full sentences."  The doctor further noted that the lungs were clear.  Such findings are again in contrast to the Veteran's reports of difficulty breathing.  Additionally, on examination of the extremities, the doctor found no clubbing, cyanosis, or edema; the doctor further found that the Veteran was "moving all extremities without difficulty."  The Veteran has also more recently claimed to have had chest cramping, but the private medical provider specifically noted that the Veteran denied chest pain.

Furthermore, while the Veteran in the August 2009 notice of disagreement reported that he was diagnosed with severe dehydration and heat exhaustion, the UWMC provider only noted diagnoses of "1. Dehydration. 2. Abnormal creatinine. 3. Hyperglycemia (to be confirmed)."  Therefore, the Veteran's current statements as to the severity of his diagnosis on August 23, 2008 are inconsistent with the contemporaneous evidence.  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498 (1995).  As noted above, the Veteran's more recent reports of difficulty breathing is in direct contrast to repeated reports he made to and findings of the August 28, 2008 private medical provider.  The Federal Rules of Evidence are not binding on the Board but may be persuasive authority.  The Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment "exceptionally trustworthy." See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care").  Given the multiple inconsistencies between the medical evidence associated with the August 23, 2008 event and the Veteran's statements in conjunction with the current claim, the Board finds that the Veteran's allegations are not credible.

The Board further notes that on August 23, 2008, the Veteran was fully cognizant of the fact that he was dehydrated, and had not drunk enough fluids, after six hours of playing sports.  He reported such information to the UWMC private medical provider.  

Although the record shows that the Veteran's pulse was "slightly tachycardic," that he had an elevated blood pressure reading of 135/93 mmHg, and had an elevated creatinine level of 2.1 mg/dL during the examination, the remaining physical examination was apparently within normal limits.  Moreover, to the extent that the examination showed the aforementioned abnormalities, there is no indication in the record that those abnormalities presented an emergent situation.  Perhaps more importantly, from the perspective of determining whether the evidence shows that the Veteran (or a prudent layperson) would have believed that he was faced with an emergent situation, there is no indication that the Veteran was cognizant of those abnormalities when he sought treatment.  Rather, at the time of his August 23, 2008 admission the Veteran specifically denied pain and dyspnea, and only admitted to some mild dizziness, mild weakness, sweating, and thirst.  Furthermore, the Veteran already knew that he was dehydrated from failure to drink enough liquids that day.

The Board also notes that though the Veteran claims that the responding paramedics made a determination, based upon their own judgment and expertise, to take him to the closest medical facility for treatment due to the severity of his condition, there is no way to absolutely know the motivations of the paramedics.  Convenience of dropping off a patient at the nearest hospital and avoiding traffic could have just as easily been their motivation.  However, what the record does clearly show was that during his August 23, 2008 admission the Veteran specifically denied pain and dyspnea, and only admitted to some mild dizziness, mild weakness, sweating, and thirst, and that the physician performed a review of systems, which was negative.  Presumably, the paramedics would have made a similar (if less detailed) evaluation and findings.  Regardless of such speculation, the record is clear that the Veteran's report of his symptoms on August 23, 2008 and the physician's findings at that time are inconsistent with the Veteran's current claim of a medical emergency.  Thus, the allegation that the paramedics took the Veteran to the closet medical facility due to the severity of his condition is not credible. 

In consideration of all of the facts and evidence in the record, the Board finds that the evidence does not show that the Veteran (or a prudent layperson) would have reasonably expected that delay in seeking immediate medical attention - for documented symptoms of mild dizziness, mild weakness, sweating, and thirst  - would have been hazardous to life or health, or, that a prudent layperson who possesses an average knowledge of health and medicine would have reasonably expected that the absence of immediate medical attention would have resulted in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.  

As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991).  The Veteran's entitlement to payment or reimbursement of unauthorized non-VA medical expenses incurred at University of Washington Medical Center on August 23, 2008 is denied.


ORDER

Entitlement to payment or reimbursement of unauthorized non-VA medical expenses incurred at University of Washington Medical Center on August 23, 2008 is denied.



____________________________________________
TANYA SMITH  
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs