Citation Nr: 1803069	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  14-13 547	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines, Florida


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred at the Highlands Regional Medical Center in Sebring, Florida on 
July 5, 2013.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to December 1967.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 letter of the Department of Veterans Affairs (VA) Medical Center (MC) in Bay Pines, Florida.

The Veteran's claims file is a "paperless" claims file.  All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS).


FINDINGS OF FACT

1. The Veteran is not service-connected for any disability.

2. The Veteran is considered permanently and totally disabled for nonservice-connected disabilities and receives nonservice-connected pension benefits.

3. The Veteran received private medical treatment for abdominal pain at the Highlands Regional Medical Center on July 5, 2013.

4. VA payment or reimbursement of the costs of the July 5, 2013, care was not authorized.

5. The medical expenses incurred on July 5, 2013, were not incurred as a result of medical emergency.


CONCLUSION OF LAW

The criteria for reimbursement of unauthorized medical expenses incurred at the Highlands Regional Medical Center in Sebring, Florida on July 5, 2013 have not been met.  38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.1000, 17.1001, 17.1002, 17.1004 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. 

The provisions of Chapter 17 of 38 U.S.C. and 38 C.F.R. contain their own notice and assistance 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. 

VA's duty to notify was satisfied by a letter dated in February 2014.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further action is required to comply with VA's duties to notify and assist. 

B. Legal Criteria 

The Veteran seeks reimbursement for unauthorized medical expenses incurred at the Highlands Regional Medical Center in Sebring, Florida on July 5, 2013 for treatment received for abdominal pain.

The admission of a Veteran to a non-VA hospital at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997).  However, Congress has authorized the reimbursement of costs for unauthorized emergency medical treatment under two statutory provisions, 38 U.S.C. §§ 1725 and 1728. 

Under 38 U.S.C. § 1728, generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions, as follows:

(a) The care and services rendered were either for: (1) an adjudicated service-connected disability, or (2) a nonservice-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) any disability of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) 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 C.F.R. § 17.120.

Under 38 U.S.C. § 1725 and 38 C.F.R. §§ 17.1000-1008, VA may reimburse claimants for unauthorized medical expenses for emergency services provided for nonservice-connected conditions in non-VA facilities.  To be eligible for reimbursement under this authority the claimant 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 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 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 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, 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. 

C. Analysis

Regarding whether the Veteran is entitled to reimbursement under § 1728, he is not service-connected for any disability or participating in a rehabilitation program and he it is not medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i)).  Thus, the Veteran is not entitled to reimbursement under 38 U.S.C. § 1728. 

The Board will next consider whether reimbursement is warranted under 38 U.S.C. § 1725. 

Records of treatment from the Highlands Regional Medical Center's emergency room on July 5, 2013 reflect the Veteran presented with complaints of pain all over at around 6:51 pm.  The symptoms began one week earlier.  He arrived at the emergency room in a private vehicle.  At its worst, the pain was mild in the emergency department and the pain was unchanged.  He was recently seen by VA and the Veteran reported that the endoscopy showed inflammation of esophagus and stomach.  The Veteran reported that he was supposed to have a colonoscopy the week prior but prep did not go well, and it had to rescheduled.  The Veteran reported that he had lost 40 pounds in 2 months.  The emergency room records were positive for weight loss, poor by mouth intake, subjective fever, and negative for chest pain, cough, and shortness of breath.  Records were positive for abdominal pain, diarrhea, and anorexia but negative for nausea vomiting, constipation, abdominal cramps, rectal pain or bleeding.  The Veteran responded to medication given.  The examining physician noted that the Veteran was in no acute distress.  He was diagnosed with bowel obstruction for non-specific pain and recommended for the Veteran to see a gastroenterologist for further evaluation of the symptoms.  He was also referred to see a primary care provider for further evaluation.  

In his October 2013 notice of disagreement, the Veteran reported that the VA hospital was over two hours away.  He explained that he had sought treatment from the West Palm VA Medical Center for the same problem, but they never treated him with medication.  He noted that a colonoscopy was completed before, and it noted he had inflammation in his stomach.  He reported that he was in severe pain and could not tolerate any more pain when he decided to go to Highlands Regional Hospital.  He also reported that he had no money to pay this bill.  

In January 2014, a Chief Medical Officer concluded that there was a lack of emergency and that he had symptoms for one week.  His vitals were all within an acceptable range.  Additionally, a community-based outpatient clinic was open all day in Sebring that day.  

In March 2014, the Veteran reported that he was in severe pain in his stomach.  He reported that he thought he was dying.  The pain was unbearable and he was unable to drive himself to West Plan VA Medical Center at 2 a.m.  The physician told him that he had severe inflammation.  

The Board finds that the condition for which the Veteran sought treatment was not of such a nature that a prudent layperson would have reasonably expected that a delay in seeking emergency medical treatment would have been hazardous to life or health.  Although the Veteran presented to the emergency room with complaints of "pain all over", he reported that the symptoms began a week earlier and were, at the worst, mild in nature.  The attending physician noted that he was not in acute distress. 

Moreover, the fact that the onset of the pain was a week prior to seeking treatment weighs against a finding that it was for a medical emergency.  The Veteran was found to be stable and discharged home the same day.

Furthermore, the only medical opinion of record, that of a VA clinician in January 2014, indicates that the treatment received on July 5, 2013, was not for a medical emergency.  That opinion is contradicted by any other medical profession.  Although the Veteran has stated that he was in severe pain and thought he was dying, none of the medical records support that the treatment he received was rendered in an emergency (i.e., he arrived in a private vehicle, onset of pain was a week prior, he was not in acute distress, pain, at worst, was mild).  As such, a preponderance of the evidence is against a finding that the treatment received on July 5, 2013, was for a medical emergency. 

As one requirement for reimbursement is not met, the Board does not need to address whether the other requirements are met, including whether a VA facility was feasibly available. 

The Board recognizes that there are financial difficulties that arise from unexpected medical expenses.  Although the Board is very sympathetic with the Veteran's situation and the particular circumstances therein, the Board is without authority to grant benefits on an equitable basis.  See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994).  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred during treatment on July 5, 2013, is denied.  38 U.S.C. § 5107. 



ORDER

Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Highlands Regional Medical Center in Sebring, Florida on July 5, 2013 is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs