Citation Nr: A21016707 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 191030-156678 DATE: October 13, 2021 ORDER Entitlement to payment or reimbursement for the cost of medical services received at M Health Fairview Masonic Cancer Clinic (M Health FMCC) on December 17, 2018 is denied. FINDING OF FACT The non-VA medical care provided on December 17, 2018 was not provided by an emergency facility, it was not for a medical emergency and treatment at a VA medical facility was feasibly. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred at M Health Fairview Masonic Cancer Clinic (M Health FMCC) on December 17, 2018 have not been met. 38 U.S.C. §§ 1703, 1725 (2018); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board will clarify the name of the specific private provider that provided the medical services to the Veteran on December 17, 2018. A collective read of the record shows that provider is M Health Fairview Masonic Cancer Clinic (M Health FMCC), located on 909 Fulton Street in Minneapolis, MN. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2019 letter of determination by a Department of Veterans Affairs (VA) Medical Center. Legal Criteria 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 not in effect for any disability. The Veteran does not have a total disability permanent in nature from a service-connected disability as contemplated by 38 U.S.C. § 1728 (a)(3). As such, 38 U.S.C. § 1728 is not for application. Because the Veteran's private hospitalization was for a nonservice-connected disorder 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 December 17, 2018 M Health Fairview Masonic Cancer Clinic (M Health FMCC) summary note reflects that during the visit the Veteran's neuroendocrine tumor of pancreas was addressed. His vitals were taken. There is no indication that any procedure was performed. In the section titled "Today, you had the following" it reads "no orders found for display." Under instructions it reflects that the Veteran should proceed with genetic counseling as scheduled, and that he will be referred to meet with a medical oncology provider locally to continue follow up. A letter dated December 17, 2018 was written by a doctor from M Health FMCC. The doctor was written to a colleague, thanking the colleague for referring the Veteran to their clinic. This doctor evaluated the Veteran and recommended observation for small PNET. He can follow up closer to home with either GI or Med/Once in Rapid City. If the tumor grows greater than 2cm would consider removal, however given age I discussed that it is likely that he will never need this performed. He was happy to follow up closer to home. I will see him as needed if PNET grows in the future. The diagnosis was stated as 72M with low grade pancreatic neuroendocrine tumor. Analysis The Veteran is seeking payment or reimbursement for the cost of medical services incurred on M Health Fairview Masonic Cancer Clinic (M Health FMCC) on December 17, 2018. The Veteran describes being treated at the University of Minnesota ER on December 3, 2018 and undergoing an endoscopy by University of Minnesota on December 4, 2018. He stated that tissue was taken from a mass in his pancreas and was sent to the lab to determine whether it was malignant. He contends that his medical visit on December 17, 2018 was a follow-up and the purpose was to get the results of the lab tests. The October 2019 denial states that the claim was denied as authorization is required in advance and treatment was non-emergent. 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 the M Health FMCC on December 17, 2018. Under 38 C.F.R. § 17.1002, the Board finds that the first element is not met. The Veteran was treated at M Health Fairview Masonic Cancer Clinic, a clinic that offers labs and radiology, but not emergency care. See https://mhealthfairview.org/locations/m-health-fairview-masonic-cancer-clinic. 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 first element has not been met. However, the Board will briefly discuss how the second and third requirements are also not met. The Board will first analyze whether the Veteran's medical condition constituted an emergency condition and then will analyze whether there was a VA facility feasible 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 element two is not met as the Veteran's condition was not emergent when he presented to M Health FMCC, and treatment 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. On December 17, 2018, when the Veteran arrived at M Health FMCC, his condition was not considered an emergency condition. He did not present with any severe symptoms and was discharged the same day. His discharge notes did not indicate that an emergent condition was treated, stating that he proceed with scheduled genetic counseling and that he would be referred to meet with a medical oncology provider locally to continue follow up. By way of the Veteran's own reporting, the appointment was scheduled, and it was a follow-up. He described an emergency situation that predated the December 17th appointment, but at no time has he made any indication that he was seen for an emergent condition on that day. The Veteran has not alleged and there is nothing in the record to indicate that his condition deteriorated from the time he first presented to the clinic to the time of discharge. The fact that the Veteran presented to the clinic and not to an ER, with the purpose of getting laboratory results supports the conclusion that the treatment was not for an emergency condition. Given the record of evidence, the Board finds that element three is also not met as a VA facility was 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). Looking at the denial letter and the record as a whole it illustrates that the Veteran resided on Cottage Hill Lane, Spearfish, South Dakota on December 17, 2018. The Board recognizes that both the December 17, 2018 summary note and the December 17, 2018 letter use descriptors such as to be referred to an oncology provider "locally" and can follow up "closer to home", illustrating that the Veteran did not reside near the private provider at the time he received the service. Nonetheless, the Board will discuss the distance regarding M Health FMCC, a non-emergency department, and the closest VAMC. The Board notes that the distance from the Veteran's residence on December 17, 2018 to M Health FMCC is approximately 581 miles, while the distance from the Veteran's residence on December 17, 2018 to the Black Hills Fort Meade VAMC in South Dakota is approximately 20.9 miles. The Board finds a VA facility was feasibly available, but the Veteran chose the private facility instead. In the summary notes from the private provider reference is made to the fact that the Veteran's primary care provider is a VA examiner at the Black Hills Fort Meade VAMC. Not only was a VA facility available, but it was significantly closer than M Health FMCC. As a VA facility was feasible, 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. 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 on December 17, 2018 at M Health FMCC, must be denied as the private facility did not treat emergency conditions, his treatment was non-emergent, and VA facilities were feasibly available. 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). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, Counsel 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.