Citation Nr: 21008569 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-35 494A DATE: February 17, 2021 ORDER Entitlement to payment or reimbursement for medical expenses incurred due to non-VA medical care at Denver Health Hospital (DHH) on December 3, 2009 is denied. FINDING OF FACT The non-VA medical care provided was not of such a nature that delay would have been hazardous to the Veteran’s life or health. CONCLUSION OF LAW The criteria for payment or reimbursement for unauthorized medical expenses incurred for treatment at DHH on December 3, 2009 are not 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 The Veteran served on active duty from June 1968 to June 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 administrative decision of the Department of Veterans Affairs Medical Center (VAMC). In his October 2014 substantive appeal, the Veteran requested a Board hearing. He subsequently withdrew such request in a July 2018 correspondence. 38 C.F.R. § 20.704 (e). In August 2018, the Board remanded the case for additional development and it now returns for appellate review. Entitlement to payment or reimbursement for medical expenses incurred due to non-VA medical care at Denver Health Hospital (DHH) on December 3, 2009. 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. § 17.5. 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. 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. At the outset, the Board acknowledges the Veteran’s and the representative’s contentions. The Veteran contends that VA had previously approved him for a tibia study in November 2008 and all follow up was with DHH. See October 2014 substantive appeal. In an October 2016 Appellate Brief, the Veteran’s representative stated that, on November 25, 2008, the Veteran was sent by VA to DHH in order to have surgery that included the installation of hardware in his knee. The Veteran’s representative stated that this date of service was not on appeal as VA paid for the November 2008 surgery. However, approximately 3 months later, part of the hardware that was installed began working its way out of the Veteran’s knee. The Veteran reported that he was told to wait approximately one year to allow for enough healing to take place in order to remove the hardware. The Veteran’s representative further explained that, in October 2009, the Veteran went to the Denver VAMC and met with VA physicians who both directed the Veteran back to DHH to have the hardware removed. Of record is a December 2, 2008 VA treatment note indicating that the Veteran was enrolled in a Tibia Study at DHH and all of his followup care should be with DHH. On December 3, 2009, the Veteran had the hardware removed by DHH. In essence, the Veteran avers that he had prior authorization for participation in the Tibia Study and his surgery in November 2008 and VA paid for the surgery; thus, any follow up treatment (i.e., the December 3, 2009 hardware removal procedure) would have been preauthorized and thus should also be paid/reimbursed by VA. However, the record then shows that given the conflicting December 2, 2008 VA note in the Veteran’s file pertaining to whether he was preauthorized for the 2008 Tibia Study, which subsequently led to the December 2009 surgery, the VAMC sought further clarification in April and May 2020. In this regard, VAMC received an email from the Denver Fee Basis Manager. The email stated, while there was a VA note that the Veteran was enrolled in a Denver Tibia Study, a consultation never took place and there was no approval from the VA stating the Tibia Study services would be covered. Therefore, it was concluded that the Veteran’s services were not authorized prior to the care being sought by the local VA facility and the care was deemed not clinically emergent. As such, the denial based upon the absence of prior authorization and receipt of non-emergent services was upheld. Based on the foregoing, the Board finds that while it appears that the Veteran believed that VA approved participation in the Tibia Study and that the December 3, 2009 would be covered by VA, VA found that a consultation did not occur and VA approval was not provided. Additionally, as noted, the December 2, 2008 VA note has been reviewed. However, the note and the Veteran’s and the representative’s assertions are not the specific type of authorization contemplated in the VA regulation. Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). The evidence of record does not show that the Veteran’s treatment on December 3, 2009 was authorized in advance. 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. In part, under 38 U.S.C. § 1728, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, there must be a showing that three criteria are met: (a) the care and services rendered were either: (1) for an adjudicated service-connected disability, (2) for a nonservice-connected-disability associated with and held to be aggravating an adjudicated service-connected disability, (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47 (i) (formerly § 17.48(j) (2000)); and (b) the treatment was for a medical emergency of such 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 (c) VA or other Federal facilities were not feasibly available and an attempt to use them beforehand or obtain prior authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C. § 1728; 38 C.F.R. § 17.120. The evidence does not show, and the Veteran does not contend that his condition on December 3, 2009, was due to a service-connected disability, or that it was due to a nonservice-connected disability associated with and held to be aggravating a service-connected disability. At the time of this treatment, the Veteran was service connected for posttraumatic stress disorder and atopic dermatitis. Further, the treatment at issue was not for any injury or illness contracted in the course of a rehabilitative program. Consequently, the Veteran is not eligible for payment or reimbursement under 38 U.S.C. § 1728. See 38 C.F.R. § 17.120. VA payment or reimbursement for private emergency medical treatment may also be considered under 38 U.S.C. § 1725. There are three primary requirements for payment or reimbursement under this statute. The Veteran must be treated at an emergency department or similar facility held out as providing emergency treatment to the public. The treatment received must be 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 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 serious dysfunction of any bodily organ or part. Additionally, a VA or federal facility must not be feasibly available to provide the treatment. 38 C.F.R. § 17.1002 (a-c). All of these criteria must be met for VA to grant payment or reimbursement for private emergency treatment under 38 U.S.C. § 1725. The Veteran does not meet the criteria for reimbursement under 38 U.S.C. § 1725 because the preponderance of the evidence indicates that services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and a prudent layperson in the Veteran’s position would not have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. 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). In this case, on December 3, 2009, the Veteran presented for surgery due to a previous left tibial shaft fracture surgery. At the last followup, he reported that he was weightbearing as tolerated; however, he was having pain around his ankle and his knee. At that time, he elected to undergo removal of some hardware from his knee. After undergoing surgery on December 3, 2009, he was discharged on the same day with instructions to followup with the clinic in 10 to 14 days. The above summarized evidence shows that there is no indication from the record that the Veteran’s symptoms were severe in nature or had worsened at the time he reported to the DHH. In this regard, it was noted that the Veteran was having pain around his ankle and his knee. Moreover, it appears that the Veteran reported that the hardware that was installed in his knee in November 2008 gave him problems approximately 3 months after his surgery. In such a situation, the Board finds that an individual with an average knowledge of health and medicine would not have reasonably expected that an absence of immediate medical attention would result in placing one’s health in serious jeopardy, serious impairment to bodily functions or serious dysfunction of any bodily organ or part. Consequently, the Board finds that the Veteran is not shown to have been suffering from an emergency medical condition so as to pose a serious threat to his life and health at the time of his treatment on December 3, 2009. As noted, the Board has considered the lay statements sent by the Veteran to VA, in which he has asserted that his December 3, 2009 surgery was due to a November 2008 Tibia Study that he believed was preauthorized by VA. This does not, however, provide a basis for relief. As previously indicated, the advice of a medical provider is not the specific type of authorization contemplated in the VA regulation. Smith, supra. Additionally, while the Veteran asserts having received information from a VA employee, this also would not provide an exception to VA regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (noting that the United States Supreme Court has recognized that persons dealing with the United States Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance). Further, “[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits.” McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (citing OPM v. Richmond, 496 U.S. 414 (1990)). The Board therefore finds that the requirements for reimbursement under 38 U.S.C. §§ 1703, 1725 have not been met. As all provisions must be met to establish entitlement to reimbursement, the Board need not further discuss the remaining criteria needed for payment or reimbursement of medical expenses. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran’s claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, Associate 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.