Citation Nr: 1633317 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 11-21 162A ) DATE ) ) On appeal from the Department of Veterans Affairs William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred in connection with medical treatment on June 25, 2009 at [redacted] (SCH). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1989 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin, by which reimbursement of unauthorized medical expenses for medical treatment provided to the Veteran by SCH on June 25, 2009 was denied. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. At the time of the June 25, 2009 private medical treatment received at SCH, the Veteran had been awarded a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU). 2. On June 25, 2009, the Veteran received medical treatment at SCH, a non-VA clinic; the medical treatment was not previously authorized by VA. 3. The medical treatment the Veteran received on June 25, 2009 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 of the unauthorized medical expenses incurred on June 25, 2009 at SCH have not been met. 38 U.S.C.A. §§ 1703(a), 1728, 5107 (West 2014); 38 C.F.R. §§ 3.102, 17.52(a), 17.120, 17.1000-1008 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board is satisfied that all relevant facts regarding the claim on appeal being addressed herein have been properly developed and no further assistance to the Veteran is required in order to comply with the duty to notify or assist. This case concerns a legal determination of whether the appellant is entitled to reimbursement for unauthorized private medical expenses under 38 U.S.C.A. §§ 1725 or 1728 (West 2014). For this reason, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) 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 (2015) discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the appellant 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 (2015). VA complied with these provisions in this case. The April 2010 decision notified the Veteran of the reasons and bases for denial and provided him notice of procedural and appellate rights. As such, the duties to notify and assist have been met. Payment or Reimbursement of the Unauthorized Medical Expenses In claims involving payment/reimbursement by VA for medical expenses incurred as a result of treatment at a private facility, it must first be determined whether the services for which payment is sought were authorized in advance by VA. 38 U.S.C.A. § 1703(a) (West 2014); 38 C.F.R. § 17.54 (2015); see also Malone v. Gober, 10 Vet. App. 539, 541 (1997). This is a factual, not a medical, determination. Similes v. Brown, 6 Vet. App. 555, 557 (1994). If not authorized, it must be determined whether the claimant is otherwise entitled to payment or reimbursement for services. The law provides that, in connection with its statutory obligation to provide medical services to appellant, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a) (West 2014), "When [VA] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710], may contract with non-Department facilities in order to furnish" certain care, including: "[h]ospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the veteran can be safely transferred to a Department facility." 38 U.S.C.A. § 1703(a)(3) (West 2014); 38 C.F.R. § 17.52 (2015). The admission of an appellant to a non-VA hospital at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54 (2015); see Malone, 10 Vet. App. at 541; see also General Counsel Opinion, VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care."). In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission. 38 C.F.R. § 17.54 (2015). In the present case, the evidence does not show that the Veteran sought and obtained prior proper authorization for VA payment of the private medical expenses he incurred on June 25, 2009. The record also does not indicate that the Veteran may have contacted VA within 72 hours of the initial care at SCH. Accordingly, the Board must conclude that prior authorization for the private medical treatment received was not obtained pursuant to 38 C.F.R. § 17.54 (2015), and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703(a). When the veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, specifically, 38 U.S.C.A. §§ 1725 and 1728. Application of either statute is generally dependent on whether the veteran has an adjudicated service-connected disability. Initially, the Board notes that under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008. However, in this case, section 1725 relating to treatment of nonservice-connected disorders does not apply because the Veteran has been granted a TDIU, as explained further below. See 38 U.S.C.A. § 1728(a); see also 38 C.F.R. §§ 17.1000, 17.1002(i). Failure to further consider section 1725 is of no consequence here, as the definition of what constitutes "emergency treatment" under either 38 U.S.C.A. § 1725 or § 1728 is now identical. In light of the fact that a TDIU (a total disability rating) has been awarded to the Veteran, the applicable law in this case is 38 U.S.C. § 1728. Prior to October 10, 2008, Section 1728(a), Title 38, United States Code, provided that VA may pay or reimburse veterans for medical expenses incurred in non-VA facilities where: (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service- connected disability, (C) for any disability of a veteran who has a total disability permanent in nature from a service-connected disability; and (3) Department or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical. See 38 C.F.R. § 17.120 (2007). Under the new version of 38 U.S.C.A. § 1728, the statute remains the same as to the initial eligibility requirement for treatment of a service-connected disability, etcetera; however, the new law amends 38 U.S.C.A. § 1725 and § 1728 to make the payment or reimbursement by VA of private treatment mandatory as opposed to discretionary, if all of the pertinent criteria outlined above are otherwise satisfied. Specifically, the word "may" in both statutes was changed to the word "shall." In addition, and most importantly, the new law expands the meaning of "emergency treatment" under section 1725(f)(1) and section 1728(c) by stating: (1) The term "emergency treatment" means medical care or services furnished, in the judgment of the Secretary- (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or 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 (C) until-- (i) such time as the 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 the 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. See 38 U.S.C.A. § 1725 and § 1728 (West 2002 & Supp. 2014). All three of these statutory requirements must be met before any payment may be authorized. See Fritz v. Nicholson, 20 Vet. App. 507 (2006); see also Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone at 544. That is, these criteria under 38 U.S.C.A. § 1728 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As discussed above, the Board finds that the treatment was not authorized and it must be determined whether the Veteran is otherwise entitled to payment or reimbursement for services. Thus, the next question is whether the treatment (or the need for said treatment) 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, and whether 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. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2014); 38 C.F.R. § 17.120(b), (c) (2015). Important in this case, the prudent layperson standard is met if an emergency medical condition manifests 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. 38 C.F.R. § 17.1002(b). 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 Board has considered, under the totality of circumstances present at the time the Veteran received medical treatment on June 25, 2009 at SCH, whether a prudent layperson would reasonably expect that his condition was such that delay in seeking treatment would be hazardous to his health or life. See Swinney, 23 Vet. App. at 264. For the reasons set forth below, the Board finds that payment or reimbursement is not warranted for the care provided by SCH on June 25, 2009. At the time of the Veteran's private medical care, service connection was in effect for residuals of a fractured coccyx with low back pain, left knee chondromalacia, claustrophobia, dysthymia with chronic anxiety, and somatoform disorder, limitation of motion of the left knee associated with left knee chondromalacia, and lax sphincter tone associated with residuals of a fractured coccyx with low back pain, and he was receiving a TDIU due to service-connected disabilities. The record reflects that, on June 25, 2009, the Veteran presented at the emergency department of SCH with abdominal pain, dysuria, and dizziness. The history of the present illness included that the Veteran again complained of another episode of dark urine, which had occurred off and on since starting Tramadol after a reduction of the pannus in 2005. Since then, the Veteran has had ongoing difficulty with urinating and has seen a urologist, who told the Veteran that he has urethral scarring. Upon physical examination of the abdomen, the Veteran had normal bowel sounds, no tenderness, and no rebound. Upon genitourinary examination, the Veteran had normal testes, scrotum, and penis, and no discharge was found. The final impressions were that there was no unusual urine color established, and the Veteran was referred to his urologist. While the Veteran generally complained of abdominal pain, at no time during the medical treatment on June 25, 2009 did the Veteran experience or report acute medical symptoms. The Veteran was discharged from the SCH's emergency department within two hours of arrival at the emergency department. 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. While the Veteran, through the representative, generally asserts that the condition for which private medical treatment was sought was an emergency (see May 2016 Written Brief Presentation located in VBMS), he does not identify specific symptoms (including abdominal pain, dysuria, dizziness, or dark urine) or indications that the condition was emergent in nature. The Board has weighed the Veteran's assertions on his behalf, but finds the contemporaneous medical treatment records to be more probative because they were more contemporaneous and were made for treatment purposes. On the question of whether the medical treatment on June 25, 2009 appeared emergent, the specific facts at the time of the medical treatment show that, even from the perspective of the Veteran and the treating physician recording the Veteran's complaints at that time, the prudent layperson standard is not met. The evidence shows that, on June 25, 2009, the Veteran did not have acute symptoms of sufficient severity, including severe pain, such that a prudent layperson, such as the Veteran 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. Given the finding that the medical care received on June 25, 2009 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 under 38 U.S.C.A. § 1728 are rendered moot. See 38 U.S.C.A. § 1728 (West 2002 & Supp. 2014); see also Melson, 1 Vet. App. at 334. Because the medical treatment rendered at SCH on June 25, 2009 was not for an emergent condition, the Board finds that a preponderance of the evidence is against the Veteran's appeal for payment or reimbursement of unauthorized medical expenses at SCH, and the appeal must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Payment or reimbursement of unauthorized medical expenses incurred in connection with medical treatment on June 25, 2009 at SCH is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs