Citation Nr: 18143315 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-11 755 DATE: October 18, 2018 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Bryan LGH Medical Center from May 30, 2012 through June 3, 2012, is denied. FINDINGS OF FACT 1. From May 30, 2012 to June 3, 2012, the Veteran was hospitalized at Bryan LGH Medical Center in Lincoln, Nebraska. This is a private facility. He was hospitalized for an “elective” colonoscopy takedown procedure scheduled for ruptured diverticulitis. This is a nonservice-connected disability. 2. Under the prudent layperson standard, the totality of the evidence reveals that the Veteran’s private hospitalization from May 30, 2012 to June 3, 2012, was not rendered in a medical emergency 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.   CONCLUSION OF LAW The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Bryan LGH Medical Center from May 30, 2012 to June 3, 2012. 38 U.S.C. §§ 1725, 5107 (2012); 38 C.F.R. § 17.1002(b), (c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the U.S. Army from July 1979 to July 1982. The appellant, Surgical Associates, PC, is the entity that furnished the treatment in question. 38 C.F.R. § 17.1004(a). It is the claimant for payment or reimbursement in the present case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans Affairs (VA) Nebraska-Western Iowa Health Care System (HCS) in Lincoln, Nebraska. This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. To the extent the VCAA is applicable to the instant medical expenses reimbursement claim, the Board has considered its provisions. In any event, the appellant 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). Medical Expense Reimbursement From February 22, 2012 through February 25, 2012, the Veteran received emergency treatment at Bryan LGH Medical Center in Lincoln, Nebraska. The Veteran had ruptured diverticulitis requiring an immediate Hartmann procedure. VA approved payment for the private emergency room and inpatient charges for this time period between February 22, 2012 through February 25, 2012. From February 26, 2012 through March 1, 2012, post-operatively, the Veteran remained at Bryan LGH Medical Center to recover. However, VA did not cover the costs of this private recovery because the Veteran had stabilized during that time period. The Veteran did not dispute that finding. On April 13, 2012, the Veteran presented himself to the VA Medical Center (VAMC) in Omaha, Nebraska for a colonoscopy. He was discharged from the VAMC the same day. Thus, it is documented the Veteran underwent VAMC surgery for his lower stomach disability. Finally, from May 30, 2012 through June 3, 2012, the Veteran was hospitalized at Bryan LGH Medical Center for an “elective” colonoscopy takedown procedure. He successfully underwent the procedure and recovered at Bryan LGH Medical Center. He was discharged home on June 3, 2012. VA did not cover the costs of his private colonoscopy takedown procedure and his post-operative recovery from May 30, 2012 through June 3, 2012 at Bryan LGH Medical Center. This was for a period of five days. This is the timeframe in dispute here. The Veteran has no health insurance. The Veteran is not service-connected for any disability. Thus, there is no dispute that his private hospitalization was for a nonservice-connected disability. The appellant in the present case - Surgical Associates, PC (the entity that furnished the treatment in question), has submitted outstanding invoices from the private hospital in the amount of $4,080. It has requested reimbursement for the Veteran’s unauthorized medical expenses for the five-day period from May 30, 2012 through June 3, 2012 at Bryan LGH Medical Center. The surgeon at Surgical Associates, PC, Dr. R.J.T., MD., who performed the Veteran’s private surgery at Bryan LGH Medical Center on May 30, 2012, contends that he was the most appropriate surgeon to perform the colonoscopy takedown procedure. This would maintain the “continuity of care,” as the primary surgeon is most familiar with the Veteran’s particular anatomy, the proper surgical technique to use, and anticipated problem areas. See September 2012 Notice of Disagreement (NOD). In the September 2012 VA administrative decision on appeal and in the April 2013 Statement of the Case (SOC), the VA denied the appellant’s medical reimbursement claim. In particular, the VA determined that the Veteran’s private hospitalization at Bryan LGH Medical Center from May 30, 2012 through June 3, 2012, was not for a “medical emergency” and that VA facilities were feasibly available at the VAMC in Omaha, Nebraska during that time period. The Veteran could have undergone the colonoscopy takedown procedure at the VAMC in Omaha, Nebraska, as it was only 58 minutes from the Veteran’s home. In addition, this VAMC had already performed a recent colonoscopy for the Veteran, and there was no “medical emergency” as defined under 38 U.S.C. § 1725(f)(1)(B) on May 30, 2012. In short, the VA concluded the appellant did not meet the criteria for payment or reimbursement of non-VA medical treatment because the Veteran did not undergo “emergency treatment” in this case. The appellant appealed this denial to the Board. Initially, under 38 U.S.C. § 1703, 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) (2012); 38 C.F.R. § 17.52(a) (2017). However, in this case, VA did not authorize or contract for Bryan LGH Medical Center to provide the Veteran with no cost private care from May 30, 2012 through June 3, 2012. Neither the appellant nor the Veteran has contended as such. Also, no clinical evidence of record documents any prior authorization. The colonoscopy takedown procedure performed on May 30, 2012 at Bryan LGH Medical Center was documented in the record as an “elective” procedure that had been scheduled by the Veteran on his own accord. Thus, the issue of prior authorization, as delineated by VA statute and regulation, is not applicable here. Regardless, when a veteran receives treatment at a private 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 the instant case, because the treatment in question from May 30, 2012 through June 3, 2012, was rendered for a nonservice-connected disability, the Veteran is not eligible for payment or reimbursement of unauthorized medical expenses incurred at a non-VA facility for a service-connected disability under 38 U.S.C. § 1728(a). In fact, the Veteran does not have any service-connected disabilities adjudicated by VA. There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, or that he had a total disability permanent in nature (P&T) resulting from service-connected disabilities, or that his nonservice-connected problems were associated with and aggravating service-connected disabilities, which in certain instances might have qualified him under 38 U.S.C. § 1728. See also 38 C.F.R. § 17.120(a). Consequently, the only possible route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C. § 1725 – the Veterans Millennium Health Care and Benefits Act. Pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for veterans without insurance is available if certain conditions are met. 38 U.S.C. § 1725; 38 C.F.R. §§ 17.1000-17.1008. Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. The Board will apply the more liberal amended law in this case because the Veteran’s private hospitalization occurred in May and June of 2012, subsequent to the October 2008 effective date of the amendments. Specifically, the amended statutes expand the meaning of “emergency treatment” under section 1725(f)(1) and section 1728(c) by defining emergency treatment as medical care or services furnished, in the judgment of VA: (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 such time (i) 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) as a Department facility or other Federal facility accepts such transfer if 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 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. §§ 1725, 1728 (2012). All the above elements must be satisfied for a claimant to qualify for payment or reimbursement. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C. § 1725 and 38 C.F.R. § 17.1002(a)-(h) are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that 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) (providing that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). In addition, effective January 20, 2012, VA regulations implementing these statutes were amended to conform to the statutory changes. See 76 Fed. Reg. 79,067-79,072 (December 21, 2011). The amendments affected the following Title 38 regulations: 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008. 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) (emphasis added). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has already met many of the substantive and administrative prerequisites for payment or reimbursement of nonservice-connected medical care listed under 38 C.F.R. § 17.1002(a)-(h). That is, the VAMC already determined the services in question from May 30, 2012 through June 3, 2012 were provided in a hospital emergency department; the claim for reimbursement was timely filed by the private provider in June 2012; the Veteran is financially liable to the private provider for treatment; the Veteran is without health insurance; 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 the alleged emergency treatment; the lower stomach disability was not caused by an accident or work-related injury for purposes of third-party liability; the Veteran is not eligible for reimbursement under 38 U.S.C. § 1728 for a service-connected disability for the alleged emergency treatment provided; and stabilization is not at issue here. See 38 C.F.R. §§ 17.1002(a)-(h), 17.1005. It follows that the central issues in the present case are the following: (1) whether the private hospitalization at Bryan LGH Medical Center from May 30, 2012 through June 3, 2012, 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 - i.e., was it a “medical emergency”; and (2) whether a VA or other Federal facility / provider was feasibly available from May 30, 2012 through June 3, 2012, and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. See 38 U.S.C. §§ 1725(f)(1); 38 C.F.R. § 17.1002(b), (c). Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized emergency medical treatment from May 30, 2012 through June 3, 2012, at Bryan LGH Medical Center, under the amended version of 38 U.S.C. § 1725, are not met. The claim is therefore denied. In this regard, the totality of the circumstances demonstrates that the Veteran’s private hospitalization from May 30, 2012 through June 3, 2012 did not constitute “emergency treatment” under the amended version of 38 U.S.C. § 1725(f)(1). That is, the evidence of record establishes that no “medical emergency” existed at that time under the prudent layperson standard. Under the applicable VA regulation, a “medical emergency” exists when 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. 38 C.F.R. § 17.1002(b). To determine whether a medical emergency existed, the Board must consider the claimant’s state of mind at the time he or she sought private treatment and evaluate the claimant’s actions in light of what a prudent layperson would do under the same circumstances. Swinney, 23 Vet. App. at 266. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In particular, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). With regard to lay evidence, the Veteran himself has never contended that his private hospitalization at Bryan LGH Medical Center from May 30, 2012 through June 3, 2012, was rendered in a medical emergency 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. He has proffered no lay assertions in support of the claim. With regard to medical evidence on the issue of whether a medical emergency existed, the Board has reviewed private clinical reports and an operation report from Bryan LGH Medical Center dated from May 30, 2012 through June 3, 2012. Notably, the admission priority was documented as a “routine elective admission.” His history and physical report indicated that his earlier colonoscopy performed on April 13, 2012, at the VAMC in in Omaha, Nebraska, “failed to demonstrate any acute pathology.” There was no notation for the need for any immediate surgery on May 30, 2012. There was no mention of an urgent condition. The principal diagnosis was status post Hartmann procedure for ruptured diverticulitis. He presented on May 30, 2012, for an “elective” colostomy takedown procedure. He had “no specific complaints” prior to the surgery. He was in “no acute distress.” He was “alert and oriented x 3.” His “colostomy is functioning well.” Informed consent was obtained. He underwent the procedure on May 30, 2012, and “tolerated it well.” He was treated for “mild” incisional pain but otherwise had few post-surgical problems. By postoperative day two he had “significantly improved.” There was no mention in the clinical reports from Bryan LGH Medical Center that he was “advised” to seek ER treatment on May 30, 2012, for his lower stomach disability. No ambulance was used to take the Veteran to the private hospital for this surgery. These private clinical reports from the private hospital provide strong evidence against the existence of a medical emergency for the Veteran on Wednesday, May 30, 2012. The Court has recognized the significant probative value of contemporaneous medical evidence. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The above facts documented in the private hospital records provide probative evidence against the claim, as they support a situation that was non-emergent and not severe. With regard to medical evidence on the issue of whether a medical emergency existed, the Board has reviewed the typed September 2012 NOD statement submitted by Dr. R.J.T., the surgeon at Surgical Associates, PC, who performed the Veteran’s private surgery at Bryan LGH Medical Center on May 30, 2012. Dr. R.J.T. contends that he was the most appropriate surgeon to perform the colonoscopy takedown procedure on May 30, 2012. (Dr. R.J.T. had originally performed the emergency Hartmann procedure for the Veteran’s ruptured diverticulitis on February 22, 2012 at Bryan LGH Medical Center). This would maintain the “continuity of care,” as the primary surgeon is most familiar with the Veteran’s particular anatomy, the proper surgical technique to use, and anticipated problem areas. Dr. R.J.T. stated his belief that the VAMC in Omaha, Nebraska could have provided “adequate” care. But the VAMC still had “limitations.” Dr. R.J.T. added that the Veteran “may have had an acceptable outcome” at the VAMC in Omaha, Nebraska, but this is “purely speculative.” He said VA was placing precedence on cost savings by using “unfamiliar, inexperienced surgeons.” In any event, what is most significant about Dr. R.J.T.’s typed September 2012 NOD statement, is that he never describes the existence of a “medical emergency” for the Veteran on May 30, 2012. Dr. R.J.T.’s statement has been considered by the Board, but is not of any import in supporting the existence of a “medical emergency” for the Veteran on May 30, 2012. With regard to medical evidence on the issue of whether a medical emergency existed, the Board has also considered September 2012 and April 2013 Veterans Health Administration (VHA) clinical opinions. The VHA clinician opined that denial was appropriate in that the care was non-emergent on May 30, 2012. The Veteran “scheduled” the “elective” surgery for May 30, 2012 at the private facility. He did not call to advise VA of the surgery or obtain prior approval for the surgery. Instead, the Veteran “chose to go” to the private facility for the surgery. In this regard, the Board is cognizant that no reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. See 38 C.F.R. § 17.130. These VHA clinician opinions provide strong evidence against the existence of a medical emergency on Wednesday, May 30, 2012. There is no contrary medical opinion of record. Per the Swinney case, the Board has reviewed and discussed both the medical and lay evidence in a prudent layperson evaluation for determining what constitutes a medical emergency. In short, the totality of the evidence establishes that a medical emergency did not exist for the Veteran from May 30, 2012 through June 3, 2012. A prudent layperson who possesses an average knowledge of health and medicine would not 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, on that evening. 38 C.F.R. § 17.1002(b). The evidence of record does not paint a picture of an injury or symptoms “hazardous” to life or to health. There is no persuasive lay or medical evidence of record that a medical emergency existed on May 30, 2012, due to the Veteran’s lower stomach disability. Because the facts do not meet the “medical emergency” requirement for emergency treatment under 38 U.S.C. § 1725, reimbursement is prohibited. The Board need not address other criteria such as the feasible availability of VA facilities, as the failure to meet any of the criteria precludes payment or reimbursement of unauthorized medical expenses. Zimick, 11 Vet. App. at 49; Malone, 10 Vet. App. at 544. Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during a private hospitalization at Bryan LGH Medical Center from May 30, 2012 to June 3, 2012. 38 U.S.C. §§ 1725, 5107 (2012). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel