Citation Nr: 21002959 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-13 535 DATE: January 19, 2021 ORDER Entitlement to payment or reimbursement of medical expenses incurred at Conejos County Hospital on December 5, 2011 and December 8, 2011, excluding resolved emergency room “ER” fees incurred on December 5, 2011, is denied. FINDING OF FACT The evidence weighs against a finding that the non-VA medical care provided on December 5, 2011 and December 8, 2011 at Conejos County Hospital was for a medical emergency. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at Conejos County Hospital in December 2011 have not been met. 38 U.S.C. §§ 1703, 1725; 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121. REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board recognizes that the Veteran has another issue in the appeal status. It is in a different appeal stream and as such the appeal for the entitlement to payment or reimbursement of the medical costs incurred from Conejos “EMS” on June 4, 2011 will be addressed in a separate opinion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 letter of determination by a Department of Veterans Affairs (VA) Medical Center (MC). The Veteran and his spouse testified before the undersigned Veterans Law Judge at a video conference hearing in October 2015. A transcript of that hearing has been associated with the file. This matter was remanded in July 2018 for additional development. As the July 2018 remand directives have been substantially complied with, the Board will adjudicate the matter. Stegall v. West, 11 Vet. App. 268. As clarified in the July 2018 Board remand, the issue of payment or reimbursement for medical expenses incurred at the ER at Conejos Hospital on December 5, 2011 was initially on appeal. However, in a May 2013 letter, the Agency of Original Jurisdiction (AOJ) stated that it was reversing its previous denial of payment for the December 5, 2011 treatment services. Accordingly, this issue is no longer before the Board. The issue before the Board involves the medical expenses incurred as a result of physical therapy (PT) on December 5, 2011 and December 8, 2011 at the Conejos County Hospital. The Veteran served on active duty in the United States Navy from February 1973 to September 1973. Legal Criteria The Veteran is seeking payment or reimbursement for the cost of medical services incurred at Conejos County Hospital in December 2011. Specifically, he seeks payment or reimbursement related to the physical therapy he received on December 5, 2011 and on December 8, 2011 at the Conejos County Hospital. See October 2015 hearing transcript. 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 not in effect for any disability. Since the Veteran is not service connected for any disability his private treatment was for a nonservice-connected disability and there is no 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). VA regulation defines “stabilized” to mean that no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to occur if the veteran is discharged or transferred to a VA or other Federal facility. 38 C.F.R. § 17.1001(d). 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. Contentions The Veteran contends that he went to the ER at Conejos County Hospital on December 5, 2011 with severe sciatic pain. He was discharged from the ER the same day and taken to the PT clinic at the same hospital. The discharge instruction stated that he was to go to PT. The Veteran expressed his frustration stating that the fact that the nurse failed to document that the ER doctor at Conejos ER had ordered PT is not his fault. The Veteran’s wife reminds VA that the Veteran resided in Capulin, CO in which there is no access to a VA hospital within a 50-mile radius. The VA Alamosa Clinic is about 20 miles away and was closed at 4 a.m. and they were snowed in. The Veteran’s wife called Pueblo VA Clinic on December 5, 2011, and left a message that the ER doctor ordered PT and she requested approval for PT. The Veteran’s wife stated that “nobody bother [sic] to call us back.” See August 2012 notice of disagreement (NOD) and March 2014 statement. During the hearing the Veteran’s wife clarified the Veteran’s contentions. She testified that since the Conejos County Hospital ER recommended the PT sessions, it constituted an emergency. They scheduled the follow up visits for December 5th and December 8th. They were told that VA always sends their veterans to Conejos County Hospital so she and the Veteran were pretty sure VA would approve it. The Veteran experienced severe sciatic pain. The PT visits were outpatient. The Veteran’s wife also testified that it snowed in on December 5th causing the La Veta Pass to be closed that whole week, which would have added significant additional commute time to the Pueblos VA Clinic. Lastly, she also stated that she sent a letter sent to VA doctor on December 5th regarding the PT and nobody responded. Evidence A clinical tracking record shows that treatment at Conejos County Hospital commenced and ended on December 5, 2011 and then again commenced and ended on December 8, 2011. The December 5, 2011 Conejos County Emergency Medical Services Report shows that the Veteran’s chief complaint was back pain. The objective physical assessment illustrated pain in the back and lower extremity. The December 5, 2011 CT pelvis scan from the Conejos County Hospital shows that the impression was normal. There was no change indicated from November 2011. The December 5, 2011 Emergency Physician Record describes the disposition as home and condition as fair. The Board recognizes that page one of this note lists the date as November 5, 2011. However, reading this report in full and in conjunction with the record as a whole, finds this to be a clerical error. The December 5, 2011 instructions to the patient after emergency care report shows that he was admitted at 7:00 a.m. and discharged at 9:50 a.m. The diagnosis was listed as new onset back pain. The instructions read that he should call to arrange an appointment with his primary care provider to see his physical therapist today for follow up care. The other instruction read adjust medication to see neurologist. There were also illustrations and directions on how to perform certain stretches. A December 5, 2011 Emergency Admission Form describes the discharge level as routine and referral to PT. A December 5, 2011 evaluation illustrates that the Veteran had sharp, shooting pain in his back, hip and left leg. He had been rear-ended a few years earlier and it had worsened. He went to the ER around 5 a.m. The assessment was stated as chronicity and or severity of condition may limit progress with treatment. The current problems were pain, decreased range of motion (ROM), decreased strength, affected gait, decreased ability to do activities of daily living (ADL)’s and functional work activities without increase in symptoms, neurological symptoms, and decreased balance/proprioception. The plan for the Veteran was stated as home exercise program, ROM/stretching, modalities/manual techniques, strengthening exercises, stabilization exercise, and proprioceptive training. The December 8, 2011 therapy treatment note shows that the Veteran tolerated the exercises fairly. His “ER” and “RI” was improved in the left hip, which showed that the muscles were becoming more relaxed which should help reduce the pain. He reported that he would be going to Denver to see a specialist on December 12th or 13th. The plan was stated as wait to see the results of the patient’s visit with the specialist in Denver. Analysis 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 Conejos County Hospital in December 2011. According to the February 2012 letter of determination by a Department of Veterans Affairs (VA) Medical Center (MC) the claim was denied as there was no pre-authorization for treatment of a non-service-connected disability. As noted in the January 2015 Statement of the Case, the claim was denied because the unauthorized treatment was for a non-emergent condition, it was not related to a service-connected disability and VA facilities were feasibly available. As referenced above, as the Veteran is not service connected for any disability the Board will address the only path to a successful claim which falls under 38 U.S.C. § 1725, the Veterans Millennium Health Care and Benefits Act. Under 38 C.F.R. § 17.1002, the Board finds that the first element has been met. The Veteran was treated at Conejos County Hospital, a hospital that has emergency services. See https://www.sanluisvalleyhealth.org/locations/conejos-county-hospital/. As such, Conejos County Hospital 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 contends he presented to the ER at Conejos County Hospital with lateral back pain to his left upper thigh. As he could not walk, he was taken to the Conejos County Hospital ER via ambulance on December 5, 2011. As stated above, the denial for payments stemming from ER services has been reversed and as such are not before the Board. The question is whether the physical therapy received on December 5, 2011 and December 8, 2011 qualify as emergent. The Board is sympathetic to the severe back pain the Veteran experienced and understands that he felt his condition was urgent. The Board also acknowledges the testimony provided the Veteran’s wife where she described being an ER nurse with 41 years of experience in trauma and “ICU.” Even resolving reasonable doubt in favor of the Veteran, the Board finds that the physical therapy for his back pain was not an emergency. The December 5, 2011 PT note clearly illustrates the Veteran’s own reporting of his back pain, and he stated that he had been experiencing back pain for few years that was getting worse. The note illustrates that he went to the ER at 5 a.m. that day. Some of current problems listed were pain, decreased ROM. There was no indication in the note to illustrate that his condition was an emergency. Any emergent condition that may have existed during his ER visit ended prior to the Veteran being discharged from the ER. Any emergent condition that may have been present had stabilized, as evident by the language describing his condition as “fair” and his discharge level as “routine” and “referral to P.T.” The Veteran testified that after the ER visit, on December 5, 2011 he was wheeled over to PT as it was near the ER hospital. After the visit to the ER the condition was no longer emergent, and the he could have availed himself to seek treatment from VA or another federal agency. The description of treatment as “physical therapy” in and of itself denotes the lack of an existing emergent condition. Physical therapy may be regarded as treatment that when done as prescribed it can assist a patient to become more well and more healthy physically and possibly prevent future emergent conditions, but there is no probative evidence to show that physical therapy is treatment that is administered to those with emergent conditions. There is nothing in the notes to illustrate that his condition was an emergency. The Veteran was not even admitted to the hospital, as both PT visits were outpatient. The December 8, 2011 therapy treatment note assessed the Veteran’s condition as being able to fairly tolerate the exercises. There was improvement in the left hip which would help in a reduction of the pain. There is nothing in this note to demonstrate that he presented with an emergent condition or that he was treated for an emergent condition. By his own reporting, he stated that it was his plan to see a specialist in a few days, indicting planned, ongoing treatment, not unplanned, emergent treatment. The Board acknowledges the Veteran’s contentions that his PT should be considered emergent treatment because it was recommended by the ER doctor. However, the mere recommendation by a medical professional to seek treatment of any kind does not equate to an emergency condition. Additionally, the probative evidence of record does not illustrate that the physical therapy administered on December 5, 2011 or December 8, 2011 was treatment for an emergent condition. The Board also acknowledges the Veteran’s statements that after being instructed by the private ER to go to PT, his wife called Pueblo Clinic VA and left a message requesting approval for PT. As stated above, prior authorization needs to be given by VA, not by a private hospital and although the Veteran contends that he or his wife called to get authorization neither of them have contended that they actually received authorization at any point. In fact, in the August 2012 NOD the Veteran’s wife provided a statement clearly stating that “nobody bother [sic] to call us back” and during the hearing she testified that nobody responded the letter she sent. 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. However, the Board recognizes that the third requirement is met and will provide brief discussion. Given the record of evidence, the Board finds that element three has been met, as a VA facility was not feasibly available. The determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Cotton v. Brown, 7 Vet. App. 325, 328 (1995). Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). A review of the record shows that the address the Veteran used in December 2011, to include as recently as in October 2020, is a PO Box address and not a physical address. The address is in Capulin, Colorado. Also, there is an SSA inquiry Profile record that lists a physical address along with the same PO Box in Capulin, Colorado. However, when attempting to use this physical address in Google maps it is not recognized. As such the Board is forced to simply use the city and state when assessing the mileage between the Veteran’s address in December 2011 and the hospitals. Also, of note, by the Veteran’s own wife’s reporting he did reside in Capulin, Colorado, in December 2011. The Board notes that the Conejos County Hospital is the location most near to the Veteran’s residence in Capulin, Colorado, at approximately a distance of 10.0 miles. The distance from the Veteran’s address in December 2011 to the nearest VA hospital with an emergency room is in Aurora, Colorado (Rocky Mountain Regional) and is approximately 248 miles. The Veteran mentioned his proximity to the Alamosa VA Clinic and to the Pueblo VA Clinic. Neither of these facilities have an emergency department, but the Board notes the distance from the Veteran’s address in December 2011 to the Alamosa VA Clinic is approximately 23.9 miles and to the Pueblo VA Clinic (PFC James Dunn VA Clinic) approximately 149 miles. While Conejos County Hospital was clearly significantly closer to the Veteran’s residence than the VAMC in Aurora, Colorado, the Board finds that medical payment or reimbursement is not warranted. As analyzed above, the Veteran’s physical therapy received on December 5, 2011 and on December 8, 2011 were not for an emergency condition. Despite, the nearest VAMC with an emergency room not being feasibly available as it was located nearly 250 miles from the Veteran’s residence, medical payment or reimbursement is not warranted. Furthermore, by the Veteran’s own reporting he experienced back pain for years prior to going to the ER at Conejos County Hospital. As he is familiar with the Alamosa VA Clinic and the Pueblo VA Clinic, it would have been reasonable for him to attempt to avail himself of the VA facilities for his non emergent treatment and it would not have been hazardous to his life or health as the treatment was for physical therapy only. Additionally, of note, in December 2011 he reported that he would be going to Denver to see a specialist for PT, traveling approximately 241 miles. The Veteran was advised by the medical personnel at Conejos County Hospital to seek PT. However, upon closer reading of the December 5, 2011 instructions to the patient after emergency care, it states that he should “call to “arrange appointment with your primary care provider to see physical therapist in today for follow up care.” Additionally, even if the private examiner suggested he go to PT that day at their facility, the Veteran chose to engage in PT, a non-emergent service. Since the unauthorized treatment in December 2011 for PT was not for an emergent condition payment or reimbursement of medical expenses pursuant to 38 U.S.C. § 1725 must be denied. The Board is sympathetic to the Veteran’s claim and acknowledges how painful and impactful his sciatic pain has been and how severe it presented in December 2011. 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 from PT in December 2011 at Conejos County Hospital, must be denied as his treatment was non-emergent. (Continued on the next page)   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). Eric S. Leboff 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.