Citation Nr: 1827136 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 15-23 046A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in St. Cloud, Minnesota THE ISSUE Entitlement to reimbursement of a non-VA pharmacy prescription. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1966 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 determination of the Department of Veterans Affairs (VA) Medical Center in St. Cloud, Minnesota. FINDING OF FACT The Veteran, as a layperson, would not have expected that a delay in the filling of his prescription would have been hazardous to his life or health or that he could reasonably expect the absence of immediate medical attention to result in placing his health in serious jeopardy. CONCLUSION OF LAW The criteria for reimbursement of a non-VA pharmacy prescription are not met. 38 U.S.C. §§ 1725, 1728 (2012); 38 C.F.R. §§ 17.1002, 17.1004, 17.1005 (2017); M-1, Part I, Chapter 18, ¶¶ 18.53, 18.64b, 18.71. REASONS AND BASES FOR FINDING AND CONCLUSION The provisions of Chapter 17 of 38 U.S.C., and 38 C.F.R. Part 17, contain separate notice requirements. A 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." 38 C.F.R. § 17.124 (2017). When a claim for payment/reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the Veteran of its reasons and basis for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 17. 38 C.F.R. § 17.132. In January 2015, the Veteran was provided with notice regarding VA's duties to notify and assist. Additionally, the Board notes that the claims file contains the necessary documentation regarding the prescription and receipt of filling of the prescription, as well as the Veteran's explanation of the circumstances requiring non-VA pharmacy prescriptions are of record. The claims file also contains the VAMC's rating action letter and a statement of the case with the reasons and basis for the denial. Generally, the treatment of a Veteran at a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54. VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances. 38 U.S.C. § 1703(a)(1)-(8) (2012); 38 C.F.R. §17.52 (2017). There is no assertion, nor does the evidence show, that VA contracted with the CVS Pharmacy used by the Veteran to fill his prescriptions. The Veteran is in receipt of total disability permanent in nature; therefore, the Veteran may be eligible for reimbursement under the provisions of 38 U.S.C. § 1728. Under this statute, the Secretary shall reimburse Veterans eligible for hospital care or medical services for the customary and usual charges of emergency treatment for which such Veterans have made payment. 38 U.S.C. § 1728(a). The term "emergency treatment" is defined as having the same meaning as in section 1725(f)(1). To be eligible for reimbursement under 38 U.S.C. § 1725, a Veteran has to satisfy all of nine of the following conditions: (1) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (2) 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); (3) 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 (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); (4) The claim for payment if reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility; (5) 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; (6) The veteran is financially liable to the provider of emergency treatment for that treatment; (7) 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); (8) 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; and (9) The Veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment. 38 C.F.R. § 17.1002. Payment for pharmaceutical services will, generally, only be authorized for a 10-day supply of medication, with no refills. M-1, Part I, Chapter 18, ¶ 18.64b. Fees paid for pharmaceutical services will be based on the cost of generic drugs. M-1, Part I, Chapter 18, ¶ 18.53a. Fee-basis prescriptions will only be filled with VA formulary medication, unless a request for deviation from this policy has been approved. M-1, Part I, Chapter 18, ¶ 18.53b. Beneficiaries in an approved fee-basis status will be reimbursed when they have paid with their own funds for prescriptions needed for prompt treatment of service-connected or other approved disabilities when such medication was not immediately available from a VA pharmacy or participating pharmacy. A receipted statement itemized by the pharmacy as to the kind, quantity and cost of all medicines furnished is required. Amounts to be paid will be governed by the provisions of paragraph 18.53. M-1, Part I, Chapter 18, ¶ 18.71. In addition, the Veteran will be advised as to how to procure medicines in the future. Id. On September 18, 2014, the Veteran was admitted to the Minneapolis VA Hospital for total left knee replacement surgery. After the surgery, the Veteran was able to urinate but only in very small amounts. A catheter was placed on the Veteran two to three different times during his hospital visit, but he continued to have difficulties urinating after each catheter placement. On September 21, 2014, the Veteran was discharged with a Foley catheter in place. He was given an antibiotic and instructed to follow-up with the Brainerd Community Based Outpatient Clinic (CBOC) (60 miles from the Veteran's residence) to have the catheter removed. The Veteran called to schedule a follow-up appointment with the Brainerd CBOC and was told that he would need to see the Urologist at the St. Cloud VAMC (120 miles from the Veteran's residence). On September 26, 2014, the Veteran followed-up with the Urologist at the St. Cloud VAMC. On October 3, 2014, he returned to the St. Cloud VAMC to have his catheter removed, along with the staples from his surgery. On October 9, 2014, the Veteran presented to the St. Cloud VAMC with complaints of pain during urination. He indicated that he was "doing well and getting back to normal until last night" when he got up to urinate 12 times. The Urologist indicated that the Veteran was experiencing severe frequency and dysuria. Urinalysis showed moderate leukoesterase with a few bacteria. A urine culture was conducted and the Urologist prescribed antibiotics (Ciprofloxacin and Pyridium) for seven days with instructions to the Veteran to contact the Urgent Care on October 12, 2014 and confirm whether the antibiotics are working. On October 12, 2014, the Veteran contacted the Urgent Care at the St. Cloud VAMC and was informed that the antibiotics he was taking were not effective. A new prescription for Nitrofurantoin Mono-MCR (100 mg) was called into the Walgreens in St. Cloud, Minnesota. The Veteran indicated that he was unable to drive 120 miles to pick up the prescription and that he would like the prescription to be called in at the CVS Pharmacy in Aitkin, Minnesota, only 35 miles from his house. He was informed by the nurse that the CVS Pharmacy did not currently have a contract with the VA and that reimbursement was unknown and that he would likely have to pay out of pocket for the prescription. The Veteran verbalized his understanding of this information. Thereafter, the prescription was called into the CVS Pharmacy in Aitkin, Minnesota. The Veteran purchased the 14-day prescription for $38.29 at the CVS Pharmacy in Aitkin, Minnesota. On January 27, 2015, the St. Cloud VAMC reviewed the prescription and determined that it was not pre-authorized for reimbursement by the VA. Likewise, the VAMC noted that the prescribed medication was for non-emergent urinary pain relief. The VAMC indicated that the CVS Pharmacy in Aitkin, Minnesota, did not have a contractual relationship with the VA. Accordingly, reimbursement of the Veteran's prescription expense was denied. The Veteran timely appealed that decision. Based on a comprehensive review of the record, the Board finds that entitlement to reimbursement for non-VA pharmacy prescriptions is not warranted. In situations where an eligible episode of non-VA medical care meets the clinical and administrative criteria for payment, a 10-day supply of the prescribed medication (with no refills) may be authorized, but only if there is medical documentation that supports the emergent need to promptly begin the medication and if it is not practical for the veteran to obtain medication from VA or a VA-contracted facility. Although the Veteran reported experiencing pain while urinating following his total left knee replacement surgery, the records do not reveal that the medications were obtained in an emergency. There is no indication that the condition for which the medication was obtained 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. As previously discussed, the Veteran told the nurse at the St. Cloud VAMC Urology Department that he lives 120 miles from the Walgreens Pharmacy and that he would like the prescription to be called in at the CVS Pharmacy in Aitkin, Minnesota, only 35 miles from his house. While the Board certainly understands the inconvenience caused by having to pick up the prescription 120 miles from the Veteran's home (as opposed to only 35 miles from his home), the fact remains that the Veteran was informed by the nurse that the CVS Pharmacy did not currently have a contract with the VA and that reimbursement was unknown and that he would likely have to pay out of pocket for the prescription. The Veteran verbalized his understanding of this information. Given that the prescription was for a medication relating to non-emergent care, reimbursement for non-VA pharmacy prescriptions is denied. ORDER Reimbursement of non-VA pharmacy prescriptions is denied. A.J. Spector Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs