Citation Nr: 1803672 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-31 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Clarksburg, West Virginia THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during private treatment at Conemaugh Memorial Medical Center from December 19, 2015 to December 21, 2015. ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Army from March 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. On December 19, 2015, the Veteran received private treatment at Conemaugh Memorial Medical Center for abdominal pain, and at that time he underwent acute gallbladder surgery. 2. The totality of the evidence reveals that during the Veteran's private care from December 19, 2015 to December 21, 2015, VA facilities were feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during treatment at Conemaugh Memorial Medical Center from December 19, 2015 to December 21, 2015. 38 U.S.C. §§ 1725, 1728, 5107 (2012); 38 C.F.R. §§ 17.53, 17.120, 17.130, 17.1002(b), (c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist To the extent VA's duty to notify and assist could be applicable to the instant medical expenses reimbursement claim, the Board has considered its provisions. However, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this case the Veteran has been notified of the steps taken to review his claim and he has been informed of the evidence he must present to participate in his case. There is nothing in the record to suggest that the Board's duty to notify and assist has not been met in this instance. Analysis The Veteran is seeking medical reimbursement for an inpatient hospitalization at Conemaugh Memorial Medical Center from December 19, 2015, to December 21, 2015. On December 19, 2015, the Veteran presented at Miner's Hospital Emergency Room via ambulance, after having 12 or more hours of abdominal pain. He was initially diagnosed with cholelithiasis with elevated liver function tests and leukocytosis. It was determined that the Veteran should be transferred from Miner's Hospital, a Class B hospital, to Conemaugh Memorial Medical Center, a Class A hospital, because specialized treatment, namely a surgical consult and probable surgery were necessary. It is noteworthy that the Veteran was deemed stable when he was transferred from Miner's Hospital to Conemaugh Memorial Medical Center, and that a treatment provider at Miner's Hospital determined that within a reasonable medical probability, there was no deterioration of condition that was likely to result from the transfer. The risks of a transfer were explained to the Veteran, and he signed a statement acknowledging that he understood the risks and benefits of the transfer and therefore consented to the transfer on December 19, 2015. This statement was also signed by a witness. Initially, under 38 U.S.C. § 1703 (2012), when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a); 38 C.F.R. § 17.52(a) (2017). However, the Veteran has never contended, and the evidence does not demonstrate, that he received prior VA written authorization for his private hospitalization. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private hospitalization is unwarranted. The issue of prior authorization is thus not applicable here. Regardless, when a Veteran receives treatment at a non-VA facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, specifically 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. In this case, the Veteran is currently service connected for chronic cystitis, rated as 10 percent disabling, and a prostate gland condition, rated as noncompensable. The Veteran sought treatment for abdominal pain, and he was diagnosed with calculus of the gallbladder with acute cholecystitis without obstruction. It was determined that the Veteran needed acute gallbladder surgery. The Board finds that the hospital diagnosis and corresponding surgery appear to be due to a urinary problem. Given that the Veteran has two service-connected disabilities that are related to the urinary tract, in giving him the benefit of the doubt the Board finds that this hospital treatment was related to an adjudicated service-connected disability. Therefore, the Board finds that 38 U.S.C. § 1728, which governs medical expense reimbursement for service-connected disabilities is the applicable statute in this case. It is noteworthy that 38 U.S.C. § 1728 of the statute is more favorable to the claim, as there are less requirements for establishing eligibility for reimbursement under this section than under 38 U.S.C. § 1725, which concerns treatment for nonservice-connected disabilities or for veterans who do not have a service-connected disability rated as permanent and total. 38 U.S.C. § 1725 does not afford a basis for eligibility independent from § 1728, but is simply more restrictive in its eligibility requirements. While the Board finds that there is sufficient evidence to determine that the Veteran's hospitalization and treatment were due to his service-connected disabilities, even assuming arguendo this is incorrect and his treatment was not for a service-connected disability, the Board is still applying the statute more favorable to the Veteran. Accordingly, the Board will only discuss the criteria under 38 U.S.C. § 1728 and its implementing regulation, 38 C.F.R. § 17.120. Under 38 U.S.C. § 1728, VA may reimburse veterans for unauthorized medical expenses incurred in non-VA facilities when: (a) Care or services not previously authorized were rendered to a veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service-connected disability; (3) For any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury, or dental condition in the case of a veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) Care and services not previously authorized were rendered in a medical emergency of such nature that a prudent layperson would reasonably expect that delay would have been hazardous to life or health; and (c) 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. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. All three statutory requirements must be met before the reimbursement may be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Hayes v. Brown, 6 Vet. App. 66 (1993). In this case, the Board has determined that the Veteran's hospitalization and corresponding surgery were related to his service-connected chronic cystitis and prostate condition, and therefore, the requirements of 38 U.S.C. § 1728 (a) have been met. Therefore, at issue is whether: b) there was a medical emergency of such nature that a prudent layperson would reasonably expect that delay would have been hazardous to life or health and c) VA or other federal facilities were not feasibly available. The Board notes that the Veteran was brought in an ambulance to Miner's Hospital emergency room. It appears he was stabilized there but it was determined that he needed surgery. He was transferred to Conemaugh Memorial Medical Center via ambulance. The fact that the Veteran had surgery within 24 hours of arriving to the first emergency room on doctor recommendation suggests that there may have been a medical emergency. The treatment records show that the surgery was promptly scheduled, and while there was nothing to suggest that the surgery was immediately necessary there was nothing to suggest that the Veteran could have delayed having surgery. Again, in viewing the evidence in the light most favorable to the Veteran, the Board finds that there was a medical emergency in this instance, and therefore, the requirements of 38 U.S.C. § 1728(b) have been met. However, the fact remains that a VA facility was available to the Veteran in this instance. The Pittsburgh VA Medical Center had the facilities necessary for the surgery, and from Miner's Hospital it would have been approximately 85 miles and fewer than two hours driving to get the Veteran there. Given that his surgery was not until the following day after leaving Miner's Hospital, it is feasible that he could have been transferred to the Pittsburgh VA Medical Center. Conemaugh Memorial Medical Center is located 36 miles away from Miner's Hospital and is approximately a 45-minute drive. While admittedly Conemaugh Memorial Medical Center is the closer hospital from Miner's Hospital, the distance between Conemaugh Memorial Medical Center and Pittsburg VA Medical Center is relatively negligible given that the Veteran had at least eight hours between the decision to have surgery and the performance of that surgery. Moreover, there is no evidence that anyone contacted the Pittsburgh VA Medical Center or any other VA facility to determine whether the surgery could be performed or whether authorization could be obtained prior to the surgical treatment. It is notable that the Veteran had received treatment through VA for a spinal disability prior to his abdominal hospitalization. The Veteran has contended in written statements that he was "knocked out" during the conversations about where to transfer him, and that he had no ability to make any decisions about where he sought care. These statements are undermined by the fact that he was deemed stable at discharge from Miner's Hospital and that he signed and agreed to the transfer. Moreover, there is an indication that the Veteran consulted with a physician at Miner's Hospital prior to transfer, and he was able to tell the doctor where he had pain in the abdomen and agree to the surgery and surgical risks. The fact that he was able to communicate where his pain was and that he was able to understand the risks of transfer and sign a (witnessed) written statement acknowledging those risks suggests that he was capable of at least advising that he was in the VA healthcare system and that treatment should have been considered there. At a minimum, he might have advised a treatment provider to contact VA on his behalf. Unfortunately, these steps were not taken and there was a VA facility available for his treatment. The Board sympathizes that the Veteran was having an emergency related to his service-connected disabilities, but he had sought treatment at VA just prior to his hospitalization at Miner's Hospital for a spinal issue. Therefore it would have been prudent to at least contact VA prior to the transfer. Given the sum of the evidence, the Board finds that since a VA medical facility was feasibly available to the Veteran, the requirements of 38 U.S.C. § 1728(c) have not been met and therefore the claim cannot succeed. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However as the preponderance of the evidence is against the claim, that doctrine is not for application and medical expense reimbursement must be denied. ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during private treatment at Conemaugh Memorial Medical Center from December 19, 2015 to December 21, 2015 is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs