Citation Nr: 0519111 Decision Date: 07/14/05 Archive Date: 07/20/05 DOCKET NO. 04-20 235A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Boise, Idaho THE ISSUE Entitlement to payment or reimbursement for medical services provided by the St. Luke's Regional Medical Center, beginning on January 6, 2004, pursuant to the "Millennium Bill Act." WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from December 1970 to February 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Boise, Idaho, Department of Veterans Affairs (VA), Medical Center. In October 2004, the veteran testified via video conference from the Boise, Idaho Regional Office (RO) before the undersigned, sitting in Washington, D.C. FINDINGS OF FACT 1. The emergency services provided by St. Luke's Regional Medical Center, beginning on January 6, 2004, were provided in a facility held out as providing emergency care to the public. 2. The claim for payment or reimbursement for the initial evaluation and treatment 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. 3. VA or other Federal facility/provider was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson. 4. The veteran was unable to be transferred from St. Luke's Regional Medical Center, prior to midday on July 8, 2004. 5. At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment. 6. The veteran is financially liable to the provider of emergency treatment for that treatment. 7. The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. 8. The condition for which the emergency treatment was furnished was not caused by an accident or work related injury. 9. The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. CONCLUSION OF LAW The criteria for payment or reimbursement for medical services provided by the St. Luke's Regional Medical Center, beginning on January 6, 2004 through January 8, 2004, pursuant to the "Millennium Bill Act," have been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In the instant case, the veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Background Medical records from St. Luke's Regional Medical Center show that the veteran presented on January 6, 2004, with the onset of sharp constant substernal chest pain which he described as pressure, tightness, and heaviness, that was initially sharp and over both shoulders that did not seem to localize in his substernal region. This started at 5:00 P.M. The veteran reported that he was at home and had not had similar pain in the past. He stated that his pain was improving now in the emergency department. Upon admission, the veteran was placed on oxygen therapy and his pain went from 10/10 to 3/10. The veteran reported that it hurt to breathe. Because of the symptoms, the veteran related that he had taken aspirin at home prior to his arrival at the Medical Center. The veteran also related that he had had shortness of breath, but it had resolved. The veteran stated that he had a history of Type II diabetes mellitus, hypertension, and high cholesterol. He related that he did not have coronary artery disease and had never seen a cardiologist. The veteran was given initial cardiac testing which was normal and his pain resolved to 1/10. The veteran was given a computerized tomography which revealed a localized dissection in the medial aspect of the ascending aorta beginning slightly above the aortic valve and extending to within approximately 2 centimeters of the innominate artery. The aortic arch and descending aorta appeared entirely free of any dissection or aneurysm formation. Echocardiography (ECG) was somewhat difficult seemed to confirm the presence of a localized type A dissection involving the ascending aorta, but not extending as far as the innominate artery. There was no evidence of aortic valvular insufficiency. The left ventricular wall motion appeared satisfactory. There did not appear to be significant mitral valvular regurgitation. The initial impression was apparent limited type A aortic dissection involving the ascending aorta. The final diagnosis was chest pain, etiology undetermined with diagnostic findings which suggested a small, ulcerated plaque, anterior ascending aorta proximal to the innominate artery without significant dissection and without evidence of perforation; ECG showing possible pericarditis. In a July 2004 letter, a letter from St. Luke's Regional Medical Center was received. The letter stated that the veteran could have been moved from St. Luke's Regional Medical Center on January 8, 2004. Prior to that time, his condition included the potential life threatening danger of hemorrhage from a dissecting aorta. He could not be safely moved until it was determined that the dissenting aorta was very localized and did not endanger his life. It was noted that the veteran was admitted with a diagnosis of chest pain and aortic dissection. His primary diagnosis was thoracic aorta dissection. The radiological study demonstrated localized dissection in the medial aspect of the ascending aorta beginning above the aortic valve and extending almost to the innominate artery. Electrocardiogram (EKG) changes showed that the veteran had Q-waves in leads 2, 3, and atriovenous fistula (AVF), which were not present previously. The consulting cardiologist stated that the veteran appeared to be in need of urgent surgery for repair of his ascending aorta. Surgical intervention of the dissenting aorta was decided. However, a dissection could not be visualized when a left heart catherization, left ventricle (LV) cineangiography, and selective coronary ateriography were preformed on January 7, 2004. By noon on January 8, 2004, it was determined that the veteran had a very localized dissection and could be transferred to VA, however, the veteran decided that he would go home and be followed on an outpatient basis. At his personal hearing and in correspondence of record, the veteran stated that on January 6, 2004, he was experiencing chest pain and thought that he might be having a heart attack. He took aspirin and laid down, but the pain did not go away, but became worse. He tried calling for assistance on his cellular phone, but due to winter storms, he was unable to make contact for help. He felt that his only choice was to drive himself to medical assistance. However, due to icy road conditions, it took longer than expected. By the time he reached St. Luke's Regional Medical Center, he felt as if he might pass out from the pain, so he pulled over and did not continue to the nearest VA facility. He went to the emergency room and was admitted. He reported that his blood pressure was crashing at that point and it was determined that he was having cardiac problems. He related that he felt that if he had continued to drive further, to VA, he would have died in the car. He also related that he did not have any medical insurance which is confirmed in the record. Analysis Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000- 1003. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106- 177, and is referred to as the "Millennium Bill Act." The Board notes that the provisions of the Millennium Bill Act became effective as of May 29, 2000. To be eligible for reimbursement under this authority, the veteran has to satisfy all of the following conditions: (a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public; (b) The claim for payment or reimbursement for the initial evaluation and treatment 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 (this standard would be met if there were 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); (c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson (as an example, these conditions would be met by evidence establishing that a veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center); d) The claim for payment if reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the veteran could not have been safely discharged or transferred to a VA or other Federal facility;(e) At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment; (f) The veteran is financially liable to the provider of emergency treatment for that treatment; (g) The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the veteran has coverage under a health-plan contract but payment is barred because of a failure by the veteran or provider to comply with the provisions of that health-plan contract, e.g., failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment); (h) If the condition for which the emergency treatment was furnished was caused by an accident or work related injury, the claimant has exhausted without success all claims and remedies reasonably available to the veteran or provider against a third party for payment of such treatment, and the veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the veteran's liability to the provider; and; (i) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 (U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 (2004). The Veterans Millennium Health Care and Benefits Act was enacted on November 30, 1999, and took effect 180 days after the date of enactment, i.e., on May 29, 2000. See Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556. A VA interim final rule implementing the new statute provides that its effective date is May 29, 2000, and that VA would make retroactive payments or reimbursements for qualifying emergency care furnished on or after that date. See 66 Fed. Reg. 36,467 (2001). In this case, the service rendered occurred after the effective date of the "Millennium Bill Act." The veteran's claim was denied on the basis that VA care was available to the veteran (criterion (c) under the "Millennium Bill Act.") The Board will consider all of the criteria. In this case, the veteran was treated on an emergent basis. He felt that he was having a heart attack, was admitted to St. Luke's Regional Medical Center emergency room, and was diagnosed as having cardiac disability. First, the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. As noted, the veteran was admitted to St. Luke's Regional Medical Center emergency room and was given emergency treatment. Thus, the first criterion is met. Second, the veteran reasonably felt that he was having a heart attack, given his symptoms. Although he was not actually having a heart attack, he was having cardiac problems. Therefore, the claim for payment or reimbursement for the initial evaluation and treatment 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. Thus, the second criterion is met. Although it was determined that a VA medical facility was available to the veteran, the Board finds that this was not the case. The Board finds that a VA or other Federal facility/provider was not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson. The Board's statements are credible and supported by the documentary record. He was having severe chest pain, rated 10/10, when he arrived at the private facility. He felt that he was having a heart attack. He was in fact having cardiac problems which required emergent care. The road conditions had delayed his trip. It would not have been prudent for the veteran to have traveled any further in that medical state, regardless of how close the VA facility was located. Thus, the third criterion is met. The record shows that the veteran was unable to be transferred prior to midday on July 8, 2004. Thus, the veteran could have been safely transferred at that time. At the time the emergency treatment was furnished, the veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment. The veteran was in receipt of VA pension benefits and under VA medical care. Thus, the fifth criterion is met. The veteran is financially liable to the provider of emergency treatment for that treatment. Thus, the sixth criterion is met. The veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment. Thus, the seventh criterion is met. The condition for which the emergency treatment was furnished was not caused by an accident or work related injury. Thus, the eighth criterion is met. The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. Thus, the ninth criterion is met. In sum, the veteran meets the criteria for entitlement to payment or reimbursement for medical services provided by the St. Luke's Regional Medical Center, beginning on January 6, 2004 through January 8, 2004, pursuant to the "Millennium Bill Act." ORDER Payment or reimbursement for medical services provided by the St. Luke's Regional Medical Center, beginning on January 6, 2004 through January 8, 2004, pursuant to the "Millennium Bill Act," is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs