Citation Nr: 0632437 Decision Date: 10/18/06 Archive Date: 10/25/06 DOCKET NO. 04-12 259A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tomah, Wisconsin THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized private medical expenses incurred on October 8, 2002, December 12, 2002, January 9, 2003, January 26, 2003 and March 31, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1969 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from February 2003, March 2003, April 2003 and May 2003 determinations by Department of Veterans Affairs (VA) Medical Center (MC) in Tomah, Wisconsin. The veteran had a video hearing before the Board in July 2006 at the Regional Office (RO) in Milwaukee, Wisconsin and the transcript is of record. FINDINGS OF FACT 1. The veteran is 100 percent service-connected for neurosis, dysthmic disorder. 2. The veteran was treated at Riverview Hospital on October 8, 2002, January 9, 2003, January 26, 2003, and March 31, 2003 for non-service connected symptomatology, but later associated with the veteran's service-connected psychiatric disability. 3. The veteran was also treated at St. Joseph's Hospital on December 12, 2002 for non-service connected symptomatology, but later associated with the veteran's service-connected psychiatric disability. 4. None of the five private treatments were rendered in a "medical emergency" of such nature that delay would have been hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses arising from emergency care provided at non- VA facilities on October 8, 2002, December 12, 2002, January 9, 2003, January 26, 2003 and March 31, 2003, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is 100 percent service connected for neurosis, dysthymic disorder and 0 percent service connected for a spontaneous collapsed lung. The private emergency room treatments in this case are all associated with similar symptoms of upper and lower extremity numbness, weakness and pain. Some of the ER visits also were accompanied with complaints of heart palpitations, chest pain and severe headaches. In all cases, as will be explained more thoroughly below, no measurable abnormality was found and the veteran was sent home the same day in stable condition. The veteran, at the time of these hospital visits, was regularly being treated at nearby VA medical facilities for his psychiatric condition as well as atrial flutter and symptoms of extremity peripheral neuropathy. The veteran's reported symptoms were consistently labeled as "chronic" and associated with the veteran's psychiatric condition. Initially, the Board notes that the veteran alleges that all ER visits were "authorized" by the VA and therefore should be reimbursed. The Board disagrees. VA outpatient reports verify phone calls received from the veteran on October 2002 and March 2003 whereas he was instructed to go to the nearest emergency room. The veteran alleges that these phone calls gave him prior authorization to seek private treatment. It is VA hospital protocol, where a veteran calls a VA hospital and says he is having symptoms that he considers emergent, for the person answering the phone to tell the veteran to go to the nearest ER. This protocol, however, is not considered "authorization" as defined under 38 C.F.R. § 17.54. In Smith v. Derwinski, 2 Vet. App. 378 (1992), a veteran had called a VA clinic and spoke to one of his treating physicians regarding his heart condition, namely congestive heart failure. The VA physician told the veteran that he could not see him and recommended he go to a private facility, which he named. The Court found that the advice of a doctor was not "the specific type of authorization contemplated by the regulation." Id. at 379. Similarly, here, the VAMC operator merely advised the veteran to go to the nearest emergency room if the veteran felt his symptoms were a true emergency. This advice was not the specific type of authorization required by 38 C.F.R. § 17.54. Cf. Smith, 2 Vet. App. at 379. In the absence of prior authorization, which is the case here, the veteran may still be reimbursed if eligibility is established. Generally, to establish eligibility for payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (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. § 17.48(j); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). Failure to satisfy any of the three criteria listed above precludes VA from paying unauthorized medical expenses incurred at a private facility. Zimick, 11 Vet. App. at 49; see also Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); H.R. Rep. No. 93-368, at 9 (July 10, 1973) ("[The proposed provision a]uthorizes reimbursement of certain veterans who have service-connected disabilities, under limited circumstances, for reasonable value of hospital care or medical services . . . from sources other than the VA. Eligible veterans are those receiving treatment for a service-connected disability. . . . Services must be rendered in a medical emergency and VA or other Federal facilities must not be feasibly available."). The Board notes that the Veterans Millennium Health Care and Benefits Act, which became effective in May 2000, also provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non- Department facility to those veterans who are active Department health-care participants (enrolled in the annual patient enrollment system and recipients of Department hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. In this case, § 1728 is applicable in light of the fact that the veteran is 100 percent service-connected for a psychiatric disability, permanent in nature. See 38 U.S.C.A. § 1728(a). The VAMC in Tomah, applying § 1728, denied the veteran's request for reimbursement for the various private treatments on the ground that the veteran's complaints were non-emergent and therefore could have been handled by a VA facility. The medical records indicate that at the time of the various hospital visits, the veteran was seeking regular care at various VA medical facilities, including at Tomah. The veteran had consistent complaints of extremity weakness, pain and numbness as well as intermittent complaints of shortness of breath and racing pulse. Extensive work-up had been conducted on these various complaints, but with no found source or measurable abnormality. Rather, the symptoms were associated with the veteran's neurosis and overall psychiatric condition. In denying the veteran's claims, the VAMC specifically concluded that his "chronic" complaints are a by-product of his psychiatric condition and non- emergent. The symptoms, moreover, "could be managed in clinic on appointment basis." In short, the VAMC found no emergency room visit necessary for any of the veteran's complaints. The veteran, during his hearing and in written statement, argues that in all instances he reacted to his symptoms by first and foremost calling the VA urgent care center. He testified that the urgent care center specifically told him to dial 911 and proceed to the nearest hospital. He also reports that the VA outpatient clinic recently diagnosed him with "atrial flutter" thus making him concerned with any abnormal heart rate. Finally, in response to the VAMC's denial, the veteran states that he attempted to first seek treatment at a VA facility and his complaints were largely ignored. The Board notes that the veteran changed addresses, within close proximity, in between the various private treatments on appeal. In general, however, the veteran's home was within 7- 8 miles of Riverview Hospital and 30 miles of St. Joseph's Hospital where he received treatment on various occasions. The nearest VA medical center, on the other hand, was about 45 miles away from his home. In a true emergency, a VA medical center would not be a feasible option. The pertinent inquiry, then, is whether the veteran's various emergency room treatments were true "medical emergencies." The Board concludes they were not. Under § 1728, a "medical emergency" must be of such a nature that delay in obtaining treatment would have been hazardous to life and health. See 38 U.S.C.A. § 1728(b); Zimick, 11 Vet. App. at 49. The Court has held that "medical emergency" is a medical question best answered by a physician. See Cotton v. Brown, 7 Vet. App. 325, 327 (1995). Again, all five of the veteran's hospital trips consist of similar complaints of numbness, weakness or pain in extremities as well as some complaints of headache, racing pulse or chest pains. All private treatment records show the veteran walked in to emergency care with no fever, no measurable pain or weakness in the extremities, and generally no confirmed ascertainable symptomatology. Diagnoses from the various treatments include "stress reaction," "likely migraine," "strep throat with peripheral neuropathy...not emergent," and "asymptomatic (probable sinus tachy due to catecholamine surge...non emergent." In reviewing the claims, VA Dr. FWB concluded as follows: Vet's [contentions] not supported by emergency room records. Problems appear to be chronic and inter- related. Could be managed in clinic on appointment basis. Similarly, in disapproving payment for a January 9, 2003 emergency room visit, VA nurse KMF noted as follows: Veteran went to ER (again) with [complaints of] shoulder pain, right arm and leg weakness. These are chronic complaints and veteran has had extensive neurological workups for this recurrent problem (both VA and private). This was not emergent and veteran could have been seen at a VA facility. Private treatment records support Dr. FWB's and KMF's conclusions. Notes from Riverview Hospital documenting the veteran's January 26, 2003 treatment, for example, show the veteran entered complaining of pain in his right shoulder, weakness to right arm and legs, and pain in left temporal region with similar pains off and on for months. The private records indicate he is "chronically disabled with neurosis." Aside from "likely migraine," the veteran was not clinically diagnosed with any measurable abnormality. The Board notes that KMF originally recommended approving payment for the veteran's first hospital visit, in October 2002. At that time, the veteran entered the hospital complaining of pounding heart beat, light headedness and shortness of breath. Dr. FWB, however, disagreed, again indicating the veteran's lengthy medical history of "chronic complaints" of the same symptoms, since associated with his psychiatric condition. As stated in more detail above, the Board notes that the veteran did call the VA urgent care center in October 2002 and March 2003 prior to seeking private treatment. The veteran was advised to proceed to the nearest emergency room if, in fact, he believed his symptoms were a true emergency. The private treatment records from those subsequent ER visits do not confirm an emergent situation. Rather, the veteran was consistently noted as being "alert" and "in no acute distress." Not only was there no actual emergency, but the veteran testified that the symptoms he was experiencing when he sought ER treatment were no worse or different than the ones he had previously consulted with VA on. His testimony indicates that he primarily sought private ER treatment because he felt VA was ignoring his symptoms or not properly evaluating them by fulfilling consult requests. In other words, the veteran wanted a second opinion. He is certainly free to seek one, but not at VA's expense. The fact that the VA urgent care center advised the veteran to proceed to the nearest hospital under the false premise that he was in acute distress is not persuasive in light of the conflicting private treatment records and the veteran's own testimony. This is further explained above. In contrast, the Board finds the VA medical records and the opinions of Dr. FWB and KMF compelling. They are consistent with the evidence as a whole and no doctor has conflicted with their conclusions. Indeed, none of the doctors that actually treated the veteran on the five occasions indicate that the treatment was a medical emergency. In most cases, the veteran was sent home with no abnormality found, and in all cases the incidents were considered non-emergent. In short, the veteran's symptoms on the five occasions were non-emergent and could have been treated at a nearby VA facility. The Board has considered the veteran's viewpoint that his symptoms were life-threatening, but ultimately the veteran is not competent to render such a medical opinion because he does not have the requisite medical knowledge or training. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994); See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The medical evidence as a whole simply does not support a finding that any of his five private treatments were medical emergencies. Where a veteran is not entitled to reimbursement under 38 U.S.C.A. § 1728, as is the case here, consideration must also be made as to whether the provisions of § 1725 does warrant reimbursement. See 38 U.S.C.A. § 1725(i). The Board concludes it does not. Similar to § 1728, 38 U.S.C.A. § 1725 states that the failure of any criteria listed in the statute precludes VA from paying unauthorized medical expenses incurred at a private facility. See 38 U.S.C.A. § 1725(b); 38 C.F.R. § 17.1002(g). Section 1725 requires, in part, that, "the claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such a nature that a prudent lay person would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health...." 38 U.S.C.A. § 1725(b)-(c). For reasons already discussed, that element is lacking and reimbursement under § 1725 is also not warranted. While the Board is sympathetic toward the veteran, it is bound by the law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Additionally, "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). It is not clear whether VA's duty to notify is applicable to claims such as the one decided herein. Cf. Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the United States Court of Appeals for Veterans Claims held that the VCAA, with its expanded duties, is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA). Similarly, the statute at issue in this matter is not found in Chapter 51 (rather, in Chapter 17). However, in Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), although not explicitly stated, the CAVC appeared to assume the VCAA is applicable to a chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. The provisions of Chapter 17 of the 38 U.S.C. and 38 C.F.R, moreover, contain their own notice requirements. Regulations at 38 C.F.R. § 17.120-33 discuss the adjudication of claims for reimbursement of unauthorized medical expenses. According to 38 C.F.R. § 17.124, the veteran has the duty to submit documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and "other evidence or statements that are deemed necessary and requested for adjudication of the claim." When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132. The veteran was sent a letter in October 2003 advising him of the information necessary to substantiate his claim as well as notifying him of all relevant procedure and appellate rights. The MC has explained to the veteran the bases for denial of the claim, and afforded him the opportunity to present information and evidence in support of the claim. There is no indication that any additional notice or development would aid the veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002). Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim, as indicated above. ORDER Reimbursement for private medical treatment on October 8, 2002, December 12, 2002, January 9, 2003, January 26, 2003 and March 31, 2003 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs