Citation Nr: 1606001 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 13-34 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses for private medical treatment received on April 27, 2013, at Florida Hospital Flagler. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 administrative decision of a Medical Center (MC) of the Department of Veterans Affairs (VA). In March 2014, the appeal was remanded to schedule the Veteran for a Board hearing. In April 2015, the Veteran withdrew his request for a Board hearing. Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered. FINDINGS OF FACT 1. The Veteran has been granted a TDIU. 2. The Veteran was treated at Florida Hospital Flagler on April 27, 2013, for a nonservice-connected disability. 3. The Veteran's treatment was not rendered in 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 a VA facility was feasibly available. CONCLUSION OF LAW The criteria for reimbursement for the cost of medical treatment provided at Florida Hospital Flagler on April 27, 2013, are not met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2014); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1002 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist This case concerns a legal determination of whether the Veteran is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§ 1725 or 1728. For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), which describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits, do not apply. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In Barger v. Principi, 16 Vet. App. 132, 138 (2002) (involving waiver of recovery of overpayment claims), the U.S. Court of Appeals for Veterans Claims (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. The provisions of Chapter 17 of the 38 U.S.C.A. and 38 C.F.R contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the 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." 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. In this case, VA provided a notice letter accompanying the July 2013 decision letter. Legal Criteria for Reimbursement by VA The Veteran is claiming reimbursement for treatment received at Florida Hospital Flagler on April 27, 2013. The Veteran was seen at the emergency room with complaints of sinus congestion. The nasal congestion began four weeks prior to the Veteran's visit to the emergency room. The Veteran indicated that the nasal congestion had worsened over the four week period and that he was unable to breath through his nose. There was no fever, chills, rash, sore throat, sinus pain, shortness of breath, cough, or chest pain. The Veteran was diagnosed with sinusitis and rhinitis. The Veteran was prescribed Nasonex, Septra, and Zyrtec, and discharged. In the September 2013 Notice of Disagreement, the Veteran asserted that he was entitled to reimbursement because: he was financially liable to the provider of the emergency treatment; he was enrolled in the VA health care system and had received treatment within the 24-months preceding the emergency care provided on April 27, 2013; he had no other health coverage under any plan that would pay for the services; VA facilities were not feasibly available and any attempt to use them beforehand would have been hazardous to his health; and, emergency services were provided in a public hospital emergency department. The Board points out that the Veteran is in receipt of TDIU. The Veteran was initially granted a TDIU effective April 29, 2003. Therefore, he meets the first criteria to be considered for payment of unauthorized medical expenses under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120. However, in order for unauthorized medical expenses to be paid under this code, the services must have been provided in a medical emergency of such nature that delay would have been hazardous to life or health and 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. The Board finds that, based upon the evidence of record, the Veteran does not meet the criteria necessary for reimbursement under 38 C.F.R. § 17.120. The Board finds that the services rendered were not in an emergency, such that delay would have been hazardous to the Veteran's life or health under the prudent layman standard. The Veteran was able to walk into the emergency room, admit himself, and report his own history to the treating physician. The hospital records dated on April 27, 2013, reveal that the Veteran was not suffering from an emergency that was hazardous to his health and that he had been suffering from the same symptoms on that day that he had experienced for four weeks prior to his visit. Although the Veteran asserts that his nasal congestion was too severe to seek care elsewhere, the medical records from his admission reflect that his emergency room was not emergent. The Agency of Original Jurisdiction (AOJ) sent the Veteran's private medical records to a VA physician. In June 0213, following a review of the Veteran's records, the VA physician determined that the Veteran had symptoms of an upper respiratory infection for a month. In September 2013, the Veteran's medical records were again reviewed by a VA physician. The physician determined that the Veteran's history of nasal congestion was relieved by nasal decongestant. There were no symptoms to suggest septicemia. The VA physician concluded that there were other VA facilities that were available during the month preceding the Veteran's visit to the emergency room. The Veteran's treatment at the emergency was not emergent. The evidence reveals that the Veteran was not suffering from an emergency that was hazardous to his life or health and that he had been suffering from the same symptoms on that day that he had experienced for days prior. As such, the Veteran does not meet the criteria for reimbursement of medical expenses under the criteria of 38 C.F.R. § 17.120. As the Veteran does not meet the criterion for benefits under 38 U.S.C.A. § 1728, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725. For the same reasons, the Veteran is not eligible for reimbursement for emergency services for non-service-connected disorders in non-VA facilities, under 38 U.S.C.A. § 1725 (West 2014) and 38 C.F.R. §§ 17.1000-1008 (2015), as the Veteran would have 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 that VA has an agreement with to furnish health care services for veterans 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 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 that 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) 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. (h) 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 (effective January 20, 2012). Regarding payment limitations, the following pertinent provisions apply under 38 C.F.R. § 17.1005: (b) Except as provided in paragraph (c) of this section, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) Could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) Could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. (c) Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or request transfer of the veteran to VA (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contracted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. (d) If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. 38 C.F.R. § 17.1005 (effective January 20, 2012). The term stabilized means that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility that VA has an agreement with to furnish health care services for veterans. 38 C.F.R. § 17.1001(d) (effective January 20, 2012). While the Board has considered and weighed the assertions above regarding the Veteran's course of medical treatment in the hospital, it does not find it persuasive as to why such treatment constituted a medical emergency of such a nature that the Veteran could not have sought treatment at the VA Medical Center. 38 U.S.C.A. §§ 1725, 1728; 38 C.F.R. §§ 17.120, 17.1002. A medical emergency is defined as being of such a nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. 38 U.S.C.A.§ 1725(f)(1)(B). However, the Board finds that a reasonably prudent person would not have believed this was a medical emergency pursuant to this definition, since the credible evidence of record shows that the Veteran was able to speak and had been experiencing his symptoms for one month. The Board, therefore, accords more probative weight to the admission and examination reports dated on the day the Veteran went to the Florida Hospital Flagler than his recent statements to the contrary. Thus, approval of payment or reimbursement under the provisions of 38 C.F.R. §§ 17.120, 17.1002 is not warranted. For the foregoing reasons, the Board finds that, for the treatment provided on April 27, 2013, the weight of evidence shows that the Veteran was not treated for an emergency, the delay of which would have been hazardous to his life and health and is thus precluded from reimbursement of medical expenses at a private hospital under 38 U.S.C.A. §§ 1725, 1728. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to payment or reimbursement of unauthorized medical expenses for private medical treatment received on April 27, 2013, at Florida Hospital Flagler is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs