Citation Nr: 20072846 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 16-53 746A DATE: November 12, 2020 ORDER Entitlement to payment or reimbursement for unauthorized medical expenses incurred at Colorado Springs Cardiology on May 15, 2014 is denied. FINDINGS OF FACT 1. The Veteran did not have prior authorization from VA for treatment at Colorado Springs Cardiology on May 15, 2014. 2. The evidence of record does not demonstrate that on May 15, 2014, the Veteran’s condition 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 or that VA facilities were not feasibly available to treat his condition. CONCLUSION OF LAW The criteria for payment or reimbursement for medical expenses incurred at Colorado Springs Cardiology on May 15, 2014 are not met. 38 U.S.C. §§ 1703, 1725, 1728, 5107; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1002. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board remanded the matter in January 2019 for additional development. The Board finds that the remand directives have been substantially complied with and therefore will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. The Veteran served on active duty in the United States Army from June 1972 to July 1975 and from June 1981 to June 1992. Contentions The Veteran seeks reimbursement for medical expenses incurred at Colorado Springs Cardiology on May 15, 2014. He contends that he suffered a heart attack in late April 2014. He spent several days in the hospital and had a stent inserted. He states that on May 6, 2014 he had a follow up appointment at his local VAMC. He inquired with his VA doctor about the stent and the recommended physical therapy. The VA doctor encouraged him to keep any scheduled follow up appointments. He then inquired as to whether VA would pay for the follow up appointments. The Veteran contends that his question was not answered to his satisfaction, but he kept his follow up appointment. He contends that he should have been informed that his outside treatment may not be paid for by VA. See July 2014 notice of disagreement. Legal Criteria The law provides that, when VA facilities are not capable of furnishing required care or services, VA may contract with non-VA facilities in order to furnish certain care, including hospital care or medical services for the treatment of medical emergencies that pose a serious threat to the life or health of a veteran receiving medical services in a VA facility, until such time following the furnishing of care in the non-VA facility as the veteran can be safely transferred to a VA facility. 38 U.S.C. § 1703(a)(3); 38 C.F.R. § 17.52 (2019). Prior to June 5, 2019, 38 C.F.R. § 17.54 provided that 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 (removed and reserved, effective June 5, 2019); Malone v. Gober, 10 Vet. App. 539 (1997). 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. As the disputed episode of non-VA medical care occurred prior to June 5, 2019, the prior version of 38 C.F.R. § 17.54 is applicable. 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, 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. Service connection is in effect for anxiety disorder rated at 30 percent, left knee total arthroplasty rated at 30 percent, tinnitus rated at 10 percent, and hiatal hernia rated at 10 percent. Because the Veteran’s private treatment was for a nonservice-connected disability and there is not a service-connected disability that is total and permanent in nature, 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. Under this 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. The primary requirements for payment or reimbursement under this statute are that the Veteran is treated in an emergency department or similar facility held out as providing emergency treatment to the public; the treatment received 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; and a VA or other federal facility was not feasibly available to provide the treatment. 38 C.F.R. § 17.1002(a-c). Generally, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the point of stabilization. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: could have been transferred from the non-VA facility to a VA medical center (or other appropriate Federal facility) for continuation of treatment, or could have reported to a VA medical center (or other appropriate Federal facility) for continuation of treatment. 38 C.F.R. § 17.1005(b). Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergent treatment (that is, treatment after the veteran’s condition has stabilized), only if: the non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other appropriate Federal facility), but the transfer of the veteran was not accepted, and the non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility or other appropriate Federal facility. This means the non-VA facility contacted the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients to VA (or other appropriate Federal facility) and documented such contact in the veteran’s progress/physicians’ notes, discharge summary, or other applicable medical record. 38 C.F.R. § 17.1005(c). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available VA or government facilities. 38 C.F.R. § 17.130. Evidence A clinical tracking record shows treatment at Colorado Springs Cardiology commenced and ended on May 15, 2014. Evaluation notes dated May 15, 2014 from Colorado Springs Cardiology reflect the Veteran presented for a follow-up after his stent placement to the CX artery. He had not had any further chest pain and was participating in rehab and exercise on his own through VA. He was encouraged to continue his current medication and exercising on his own. The clinician noted that they would see him back in six months or sooner for follow up if he had problems in the interim. Analysis The Veteran has argued that he had prior authorization to go to the non-VA medical facility. See September 2020 Brief. However, there is no written evidence in the claims file from VA of any prior authorization for medical expenses; specifically, there is no documentation that the Veteran called VA on May 15, 2014, nor is there evidence authorizing him to seek treatment at Colorado Springs Cardiology at VA’s expense on or before that date. Of note, although the Veteran’s representative provided argument that the Veteran did get prior authorization there is nothing in the record to illustrate any specific allegations regarding actually getting prior authorization. When looking at the Veteran’s own words he states that he did not get a satisfactory answer when he inquired as to whether VA would pay for his private treatment. In the Brief, his words from the Form VA-9 is specifically referenced, stating, “I was not informed that the appointment may not be covered for payment by VA, only that the local VA clinic did not provide that service.” As there is no probative evidence of record, even when considering the Veteran’s lay statements, to show prior authorization was obtained for the May 15, 2014 medical services, the Board finds that payment or reimbursement is not warranted. 38 C.F.R. § 17.54. As stated above, the Veteran has only contended that his services as were pre-authorized by VA and therefore he is entitled to payment or reimbursement. Again, there is no probative evidence to illustrate that VA gave pre-authorization. As such, the Board will assess whether the criteria under § 1725 are met. Upon review of the record, the Board finds that the Veteran is not entitled to payment of or reimbursement for the cost of medical services incurred at Colorado Springs Cardiology on May 15, 2014. According to the Statement of the Case the claim was denied because the services rendered were not pre-authorized. According to the April 2020 Supplemental Statement of the Case, the claim was denied because the medical treatment was not for a service-connected disability and was not to treat an emergency. Under 38 C.F.R. § 17.1002, the Board finds that the first element is met. The Veteran was treated at Colorado Springs Cardiology, located at Penrose St. Francis Health Services. Penrose St. Francis is a hospital that has a 24-hour emergency department. See https://www.centura.org/locations/penrose-st-francis-health-services?utm_source=yext&utm_medium=organic_google&utm_term=PENROSE_HOSPTIAL&utm_content=facilities_landing_page. As such, Penrose St. Francis is an emergency department or similar facility held out as providing emergency treatment to the public. The ultimate disposition of this case, therefore, rests upon whether the Veteran was treated for an emergency condition, and whether federal facilities were feasibly available. 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). Given the record of evidence, the Board finds that the treatment the Veteran received was not 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. The Veteran does not contend that the services he received on May 15, 2014 were to treat an emergency condition. He stated, and the record shows, that the services received on May 15, 2014 were solely related to a follow-up with no indication of an urgent condition, let alone an emergent one. As such, the treatment was not for an emergency condition. The above-stated provisions are conjunctive, not disjunctive. Malone v. Gober, 10 Vet. App. 539 (1997) (finding that all three eligibility requirements under 38 U.S.C. § 1728 must be met). As such, the Board is not required to continue its analysis as the second element has not been met. The Board is sympathetic to the Veteran’s claim and acknowledges his representative’s September 2020 written argument. However, the Board is bound by all applicable law and regulation. After carefully reviewing the Veteran’s statements and the medical evidence of record, the Board finds that the claim for payment or reimbursement of unauthorized medical expenses incurred at Colorado Springs Cardiology on May 15, 2014, must be denied as his treatment was non-emergent. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.