Citation Nr: 0007841 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-32 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center, Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at the Palms of Pasadena Hospital from November 10 to November 12, 1996. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from July 1965 to August 1968. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a February 1997 decision by the Department of Veterans Affairs (VA) Medical Center (VAMC) located in Bay Pines, Florida. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection is in effect for a right knee injury, rated as 50 percent disabling; lumbosacral strain, rated as 40 percent disabling; and for left knee degenerative joint disease, rated as 20 percent disabling. The combined rating is 80 percent disabling. The veteran is also in receipt of a total rating for compensation purposes based upon individual unemployability, effective from March 1994. 3. On November 10, 1996, the veteran was hospitalized at Palms of Pasadena Hospital (Palms Hospital) with diagnoses of alcohol abuse, rule out alcoholic hepatitis, and dehydration. On November 12, 1996, the veteran signed himself out of Palms Hospital against medical advice. 4. The treatment rendered from November 10, 1996, to November 12, 1996, at Palms Hospital was not for a medical emergency of such nature that delay would have been hazardous to the veteran's life or health and a VA medical facility was feasibly available. CONCLUSION OF LAW The criteria for entitlement to payment or reimbursement for the cost of unauthorized medical treatment rendered at Palms of Pasadena Hospital from November 10, 1996, through November 12, 1996, have not been met. 38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. § 17.120 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As shown as part of a Statement of Representative in Appeals Case, dated in April 1999, it is asserted that the veteran desires reimbursement and/or payment of hospital costs incurred beginning November 10, 1996, due to emergent treatment and on the basis that he is rated 100 percent permanently and totally disabled due to service-connected disability. It is specifically alleged that the veteran became ill, and that while traveling to the Bay Pines VA Medical Center (VAMC) his condition worsened, and that, as a result, his wife drove him to the emergency room at Palms of Pasadena Hospital As an initial matter, the Board finds that the veteran's claim is well grounded pursuant to U.S.C.A. § 5107(a) (West 1991) in that his claim is plausible. A claimant for VA benefits must present a well-grounded claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Once a claim is well grounded, VA has a statutory duty to assist a veteran in the development of facts pertinent to any given claim. The Board is satisfied that the duty to assist has been fulfilled, as there is no indication that there are other records available that would be pertinent to the veteran's appeal. In order to be entitled to payment or reimbursement for medical (or dental) expenses incurred without prior authorization from the VA, all of the following must be shown: (a) That the treatment was 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; and (b) That a medical emergency existed of such nature that delay would have been hazardous to life or health; and (c) That 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. 38 U.S.C.A. § 1728 (West 1991); 38 C.F.R. § 17.120 (1999). Failure to meet any one of the criteria listed above precludes payment by VA of the cost of unauthorized medical expenses. Parker v. Brown, 7 Vet. App. 116, 119 (1994). Service connection is in effect for a right knee injury, rated as 50 percent disabling; lumbosacral strain, rated as 40 percent disabling; and for left knee degenerative joint disease, rated as 20 percent disabling. The combined rating is 80 percent disabling. The veteran is also in receipt of a total rating for compensation purposes based upon individual unemployability, effective from March 1994. It is undisputed in this case that the veteran had a total disability evaluation in effect at the time the expenses at issue were incurred. The Board assumes solely for the sake of argument (but without so conceding) that this is a "total disability permanent in nature resulting from a service- connected disability" as contemplated by the provisions of 38 U.S.C.A. § 1728 (West 1991) and 38 C.F.R. § 17.120 (1999). Thus, entitlement to payment or reimbursement of the November 1996 expenses is warranted if such treatment was necessitated by a medical emergency during a time in which VA medical facilities were not "feasibly available." 38 U.S.C.A. § 1728(a)(1)(3) (West 1991); 38 C.F.R. § 17.120(b), (c) (1999). Thus, the Board must next determine whether the treatment rendered at Palms of Pasadena Hospital from November 10, 1999, to November 12, 1999, was for an emergency. The statute and regulations specify that a "medical emergency" must be of such a nature that delay in obtaining treatment would have been hazardous to life and health. The urgent nature of the veteran's medical condition and the length of any delay required to obtain the same medical services at a VA facility are factors which must be considered in a determination of whether a VA facility was feasibly available when the veteran was treated at the non-VA facility. See Cotton v. Brown, 7 Vet. App. 325 (1995) (citing Hennessey v. Brown, 7 Vet. App. 143, 147 (1994)). Furthermore, a VA facility may be considered as not feasibly available when the urgency of the applicant's medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use non-VA facilities. 38 C.F.R. § 17.53 (1999). The evidence shows that the veteran arrived at the emergency room of Palms of Pasadena Hospital on November 10, 1996, complaining of diarrhea and shaking. A history of "ETOH abuse" was noted. On examination, the veteran's chief complaint was vomiting, and he gave a history of drinking alcohol for 4 consecutive days, ending the preceding day. The examination showed a temperature of 99.7. His blood pressure was 140'90 and pulse rate was 116. He was noted to be alert and oriented, with neither asterixis nor palmar erythema being present. His lungs were reported as being clear. The veteran also indicated that he was experiencing severe stomach pain and that he thought he may be having a heart attack. Provisional diagnoses were reported as alcohol withdrawal, esophagitis, and hypokalemia. The veteran was admitted to the hospital. The admitting diagnosis was alcohol abuse, rule out alcoholic hepatitis, and dehydration. There was a history of alcoholism, increased blood pressure, arrhythmias, and multiple surgeries on both knees. An examination of the systems, to include the cardiovascular system, showed no abnormality. A discharge summary from Palms of Pasadena Hospital, shows a discharge date of November "11", 1996. The discharge diagnoses were alcohol abuse, rule out alcoholic hepatitis, and dehydration. It was reported that chest x-rays were normal. Before a hematology specialist could see the veteran, the veteran left the hospital "AMA" [against medical advice]. A progress note dated on November 11, 1996, shows a diagnosis of alcoholic hepatitis. Another progress note, dated November 12, 1996, shows that the veteran wanted to go home and denied any complaints. The note also shows that the veteran signed out against medical advice. The veteran was informed by letter dated in November 1996 that his claim for payment for private hospital care during his hospitalization beginning November 10, 1996, was not authorized since prompt medical justification was not received. A report of contact indicates that Palms of Pasadena Hospital had been contacted and the veteran was willing to be transferred. The VAMC telephoned the veteran's physician on November 13th and 14th, 1996. The physician did not return the calls. A notation dated on November 15th, 1996 shows that as no call had been received from the physician as requested authorization be terminated due to no "CMO" [chief medical officer] contact. VA Form 10-583(R), dated in December 1996 and February, submitted by Palms of Pasadena Hospital, are to the effect that while en route to a VA hospital the veteran, due to his experiencing chest pains, nausea, and diarrhea, instead traveled to the nearest hospital, Palms Hospital, because he could not travel the distance to the VA facility. In February 1997 a VA physican denied the veteran's claim. At that time it was determined that the hospitalization was non-emergent and, a VA facility was available. It was noted that the nearest VA facility, Bay Pines, was 12 miles one way. The veteran was notified by letters in February and July 1997 that his claims for payment for unauthorized medical services, during an episode of care from November 10, 1996, to November 12, 1996, had been disapproved. The letters indicated that the claims were denied because VA facilities were feasibly available to provide the care and the treatment rendered was non-emergent. In September 1997 the veteran stated that his condition, in essence, constituted an emergency, and that it was a holiday (Veteran's Day). He added that that there was no way that he could have made it to Bay Pines. In April 1998, as noted above, a hearing was held at the VA Medical Center. The veteran testified that after becoming ill in November 1996 he and his wife left their home to travel by automobile to the Bay Pines VA hospital. He claimed that while on the way his condition got worse, including chest pains, vomiting, and shaking, and his wife took him directly to Palms Hospital. He added that he began to feel some relief about 2 to 3 hours after arriving at Palms Hospital. The veteran further testified that he left the hospital against medical advice because he did not agree with the medical treatment he was receiving, such as the usage of certain medications. He also noted that he was afforded emergency treatment at Palm Hospital in May 1997 and that VA did pay for this period of hospitalization. On further questioning, the veteran testified that he had become sick, experiencing sharp chest pains and trouble breathing, about one day prior to the day he was ultimately hospitalized in November 1996 when he was drinking alcohol. The veteran's wife testified that after the veteran began to experience both vomiting and diarrhea, as well as chest pains, she and the veteran proceeded by automobile to the Bay Pines VA medical facility. She added that while on the way to the hospital her husband became sicker, actually vomiting inside the car, which was one of the reasons that prompted her to go to the Palms Hospital rather than the VA facility. She stated that she helped him inside with the aid of a wheelchair. To summarize, authorization for payment was terminated by the VA due to the failure of the veteran's physician to contact the VAMC. Therefore the issue before the Board is entitlement to payment or reimbursement for the cost of unauthorized medical expenses incurred at the Palms Hospital from November 10 to November 11, 1996. In this regard, the veteran's statements and the hearing testimony describing the veteran's symptoms are competent evidence. However, a layperson is not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet.App. 482 (1992). As such, all three of the criteria set forth in 38 C.F.R. § 17.120 (1999) must be satisfied in order for the veteran to prevail. The evidence shows that the veteran was admitted and discharged from the hospital with diagnoses of alcohol abuse, rule out alcoholic hepatitis, and dehydration. Examinations showed no evidence of a cardiovascular disorder. VA medical personnel, after reviewing the circumstances surrounding the veteran's November 1996 period of hospitalization at Palm of Pasadena Hospital, have determined that the treatment was non-emergent and that a VA facility was feasibly available. As the evidence does not contradict this decision, the Board concurs with this determination. Accordingly, payment or reimbursement of the unauthorized expenses associated with hospitalization at Palms Hospital from November 10 November12, 1996, is not warranted. ORDER Entitlement to payment or reimbursement for the cost of unauthorized medical treatment rendered at Palms of Pasadena Hospital rendered from November 10, 1996, to November 12, 1996, is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals