Citation Nr: 21008052 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-18 615 DATE: February 11, 2021 ORDER A timely Notice of Disagreement was received appealing the August 2014 denial of reimbursement of costs for non-VA medical care received on May 28, 2014; the appeal is granted to this extent only. Entitlement to reimbursement of treatment and transportation costs for non-VA medical care received on November 29, 2015, is denied. Entitlement to reimbursement of treatment and transportation costs for non-VA medical care received on December 2, 2015, is denied. REMANDED Entitlement to reimbursement for non-VA medical care received on May 28, 2014, is remanded. FINDINGS OF FACT 1. In an August 2014 decision letter, a VA Medical Center denied the Veteran’s claim for reimbursement of costs for non-VA medical care received on May 28, 2014; the Veteran’s representative was not copied (“cc’d”) on the decision letter. 2. The Veteran has not been granted service connection for a knee disability. 3. The evidence of record does not reflect that the Veteran received prior written authorization from VA for her treatment as St. Luke’s Hospital on November 29, 2015, or December 2, 2015. 4. The Veteran’s knee pain, for which she sought treatment at St. Luke’s Hospital on November 29, 2015, was not of such a nature that delay would have been hazardous to the Veteran’s life or health, and VA facilities were feasibly available to provide the non-emergent treatment. 5. The Veteran’s knee pain, for which she sought treatment at St. Luke’s Hospital on December 2, 2015, was not of such a nature that delay would have been hazardous to the Veteran’s life or health, and VA facilities were feasibly available to provide the non-emergent treatment. CONCLUSIONS OF LAW 1. A timely Notice of Disagreement was received in response to the August 2014 VA Medical Center’s denial of the issue of entitlement to reimbursement for non-VA medical care received on May 28, 2014. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.1(q), 3.103(b)(1), 3.160, 20.200, 20.201, 20.302, 20.1103. 2. The criteria for payment or reimbursement for unauthorized medical and transportation expenses incurred at St. Luke’s Hospital on November 29, 2015 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. 3. The criteria for payment or reimbursement for unauthorized medical and transportation expenses incurred at St. Luke’s Hospital on December 2, 2015 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 CONCLUSIONS The Veteran had active service in the United States Army from October 1989 to December 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and February 2016 decisions issued by a Department of Veterans Affairs (VA) Medical Center (VAMC). The Veteran presented testimony at a virtual hearing held before the undersigned Veterans Law Judge in January 2021. A copy of the hearing transcript is of record. 1. A timely notice of disagreement was received appealing the August 2014 denial of reimbursement of costs for non-VA medical care received on May 28, 2014. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. 38 C.F.R. § 3.103(b)(1). Notification for VA purposes is a written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). Under the legacy appeal system, an appeal consists of a timely filed Notice of Disagreement (NOD), and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. In cases where a form was not provided by the Agency of Original Jurisdiction (AOJ) for the purpose of initiating an appeal, a NOD is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 C.F.R. § 20.201(b). Prior to March 24, 2015, a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result will constitute a NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. A claimant or his representative must file a NOD within one year from the date that the RO mailed the notice of a decision. 38 C.F.R. § 20.302(a). If a NOD is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). The statutory language for the NOD filing time limit is mandatory and jurisdictional in nature. Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). In October 1991, VA received a signed VA Form 21-22 indicating appointment of Disabled American Veterans (DAV) as the Veteran’s representative. In the August 2014 VAMC decision, the AOJ denied the Veteran’s claim for reimbursement for costs of non-VA medical care received on May 28, 2014. The Veteran was notified of this decision in an August 7, 2014 letter. While St. Luke’s Allentown Campus was cc’d on this letter, DAV was not copied on the notification letter. In November 2016, the Veteran submitted her appeal noting disagreement with the denial of reimbursement for costs of non-VA medical care received on May 28, 2014. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant’s last known address of record, it will be presumed that VA properly discharged its official duties) (citing Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). This presumption may only be rebutted with “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Boyd, 27 Vet. App. at 72 (quoting Crain v. Principi, 17 Vet. App. 182, 186 (2003)). The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (a) VA used an incorrect address on the mailing in question or (b) the mailing was returned as undeliverable and “there were other possible and plausible addresses available to VA” at the time. Id. at 72. It is presumed that VA officials properly discharged their official duties by sending proper notification to the Veteran of the August 2014 VAMC decision. Review of that notice indicates that it was sent to the Veteran’s current address provided at that time. Additionally, as of this date, there is no indication that the notice was returned as undeliverable. Nevertheless, the Board finds that the presumption of regularity is rebutted in this case. As discussed above, there is no indication that the Veteran’s representative was issued proper notification of the August 2014 VAMC decision. In addition, it is clear from her November 2016 filing that the Veteran intended to disagree with the August 2014 VAMC decision for the specified issue. After review of the pertinent evidence of record, as discussed above, the Board finds that the presumption of regularity is rebutted based on the lack of proper notification of the August 2014 VAMC decision being sent to the Veteran’s representative. Inasmuch as the Veteran’s representative did not receive notice of the decision, and there is nothing to indicate that the representative otherwise had actual notice, the decision did not become final; and the November 2016 filing is found to constitute a timely NOD. 2. Entitlement to reimbursement of treatment and transportation costs for private medical care received on November 29, 2015. 3. Entitlement to reimbursement of cost of treatment and transportation for private medical care received on December 2, 2015. The Veteran is seeking reimbursement for the treatment and transportation costs for non-VA care at St. Luke’s Hospital on November 29, 2015, and December 2, 2015. At the January 2021 hearing, she asserted both that she believed her severe knee pain to be an emergency and that a VA facility was not feasibly available to her at the time, because the nearby VA outpatient clinic was closed in the evening and did not provide emergency services. 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. The admission of a Veteran to a non-VA hospital at the expense of VA generally must be authorized in advance. 38 C.F.R. § 17.54. In relevant part, 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. What constitutes a prior authorization by VA is not expressly defined; however, the oral advice of a doctor or a nurse to go to a non-VA hospital is not the specific type of authorization contemplated by 38 C.F.R. § 17.54. Smith v. Derwinski, 2 Vet. App. 378, 378-79 (1992); but see Cantu v. Principi, 18 Vet. App. 92 (2004) (holding that the requirements under 38 C.F.R. § 17.54 for authorization were met when a VA physician arranged a veteran's transfer and transportation from VA outpatient clinic to private facility). In short, simple belief that the treatment was authorized, without any confirmation or action by VA, is not enough to show prior authorization. VA’s General Counsel, in response to the question regarding “[w]ho has the authority to approve or authorize a request for private hospitalization at VA expense under 38 U.S.C. § 1703(a), and what type of action(s) is necessary to constitute prior authorization under 38 C.F.R. § [17.54]” has indicated that the requirements for obtaining prior authorization for private medical expenses are quite specific. In addition to meeting statutory requirements for reimbursement, any verbal authorizations must be confirmed in writing. See VA O.G.C. Concl. Op. 1-95 at paragraphs 16-17. The Veteran testified at the January 2021 Board hearing that she always had VA authorization every time she went in for private emergency care, and believed she called VA before going to the hospital on the November and December 2015 dates in question. The Veteran has never asserted that she was told her private costs would be reimbursed or covered by VA, but rather testified that usually “they tell you when you have an emergency to go to the emergency room.” Even if the Veteran in fact called VA before going to the private hospital, the advice of a medical provider to go to a non-VA hospital is not the specific type of authorization contemplated in the VA regulation. See Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). Additionally, there is no other evidence of record to otherwise suggest that the Veteran’s treatment at St. Luke’s Hospital was authorized in advance or within 72 hours of receiving treatment. Therefore, application of 38 U.S.C. § 1703(a) for reimbursement of authorized private treatment is unwarranted. When a Veteran receives treatment at a non-VA facility without prior authorization, two statutes allow for payment or reimbursement for the medical expenses incurred for that treatment, 38 U.S.C. §§ 1725 and 1728. At the time of her November and December 2015 non-VA treatment, the Veteran was in receipt of service connection benefits and a total disability rating based on individual unemployability for bipolar disorder. As the Veteran had a total disability permanent in nature from a service-connected disability, she met the basic eligibility criterion for payment or reimbursement for emergency treatment by non-VA providers under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. However, both 38 U.S.C. §§ 1725 and 1728 require that the non-VA care be provided for a medical emergency and that a VA or other Federal facility that VA has an agreement with to furnish health care services for veterans was not feasibly available. For purposes of these statutes, a medical emergency is defined as 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. 38 C.F.R. § 17.120(b). This standard is met if there is 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. In this case, the Veteran went to the non-VA hospital for significant knee pain. Her emergency department chart from November 29, 2015, notes that she reported knee pain, without trauma, and was found to have mild degenerative joint changes, loss of joint space, and prior total knee replacement upon undergoing radiographic imaging of the knee. Her December 2, 2015 emergency department chart indicates that her chief complaint was local pain over the left knee, without acute injury. She reported that she was seen recently in the emergency department for right knee pain, and had followed up with a specialist who drained the knee, then her left knee pain began. The chart indicates that she gave a history that both legs were affected, she had complaints of mild pain, and had noted swelling. On nursing assessment, the Veteran was noted to be comfortable and in no acute distress. The clinician history specifies that the presenting problem was chronic, and that the Veteran gave a history of non-traumatic swelling and chronic pain affecting the left knee. She was diagnosed with knee pain, general. The aforementioned evidence shows that the Veteran had been suffering from knee pain which was chronic. While the severity of her pain may have been greater than usual at the times she sought non-VA emergency treatment, she has not reported any trauma to the knees or other reason why she felt that medical care was needed immediately, and her emergency department charts do not reflect complaints or observations consistent with an alarming degree of pain potentially consistent with a severe acute exacerbation. The Veteran has asserted that the fact that she underwent knee replacement a few months later demonstrates that she was in need, but this does not demonstrate why she thought it necessary to seek immediate care on the dates in question, rather than following up with VA the following day. Rather, considering the chronic nature of her knee pain and lack of any acute trauma which might have required more immediate care, the Board finds that a prudent layperson would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Consequently, according to the controlling regulation, the Veteran is not shown to have been suffering from an emergency medical condition at the time of her treatment at St. Luke’s Hospital on November 29, 2015, or December 2, 2015. See 38 C.F.R. § 17.1002(b). As this is a necessary requirement for awarding payment or reimbursement of the cost of such treatment, the Veteran's appeal must be denied. Additionally, a VA facility is found to have been feasibly available to the Veteran. While the Veteran reported that the nearest VA clinic was approximately 20-25 minutes away while St. Luke’s was 1 mile away, publicly-available maps demonstrate that the Veteran’s residence is an approximately 10-15 minute drive or 5 miles away from the nearest VA clinic and a little over 3 miles away from St. Luke’s Hospital. Although the VA outpatient clinic in question was not available when the Veteran sought care, due to it being closed on Sunday for the November 29, 2015, treatment and it being after the standard hours of operation on Wednesday for the December 2, 2015 treatment, there is no indication as to why the Veteran would not have been able to travel to the VA outpatient clinic or contact them to obtain prior VA authorization for the services required on the following morning. 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 preponderance of the evidence is against the claim of entitlement to payment or reimbursement of unauthorized medical expenses incurred at St. Luke’s Hospital on November 29, 2015, and December 2, 2015. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved in the Veteran’s favor; the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to reimbursement of costs for non-VA medical care received on May 28, 2014 is remanded. Having found that a timely NOD was received appealing the August 2014 denial of a claim for reimbursement for non-VA medical care received on May 28, 2014, a remand is required for the AOJ to issue a Statement of the Case adressing the claim on the merits. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). (Continued on the next page) The matter is REMANDED for the following action: Send the Veteran and her representative a statement of the case that addresses the issue of entitlement to reimbursement of costs for non-VA medical care received on May 28, 2014. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.