Citation Nr: 0809041 Decision Date: 03/18/08 Archive Date: 04/03/08 DOCKET NO. 05-17 652A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma THE ISSUE Entitlement to payment or reimbursement for unauthorized medical services provided by the appellant from March 18, 2004, to April 18, 2004, pursuant to the Veterans Millennium Health Care and Benefits Act (Millennium Bill Act). REPRESENTATION Appellant represented by: Dana Davis, Attorney at Law ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from February 1969 to May 1970. He died in April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision by a VA Medical Center (VAMC) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The services provided by the appellant from March 18, 2004 to April 18, 2004, were provided in a medical facility held out as providing emergent care. 2. The condition treated by the appellant beginning on March 18, 2004, was for a condition whose symptoms were 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 another 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. After treatment was begun by the appellant on March 18, 2004, until his death, the veteran either was too unstable to move or VA facilities were not available. 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 record does not establish that the veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the treatment rendered. 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 appellant from March 18, 2004, to April 18, 2004, pursuant to the Millennium Bill Act, have been met. 38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 17.120, 17.121, 17.1000, 17.1001, 17.1002 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In the instant case, the appellant's claim is being granted in full. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Factual Background On March 17, 2004, the veteran presented to the VAMC emergency room located in Oklahoma City, Oklahoma, complaining of abdominal pain which had been increasing. The veteran asked a nurse how long his treatment would take and was informed that it would take an hour to an hour and a half to find out what's wrong. The veteran then stated that it was taking too long and that he was going to the appellant facility. On March 17, 2004, the veteran, presented to the emergency room at the appellant facility with complaints of a sharp pain radiating to the back, nausea, vomiting, and back and epigastric pain. The veteran was admitted to the medical facility on March 18, 2004. He remained at the appellant facility from March 18, 2004, until his death on April 18, 2004. The appellant is requesting reimbursement for medical expenses for treating the veteran from March 18, 2004 to April 18, 2004. The appellant has alleged that, as soon as the veteran presented for treatment at the appellant facility, a representative spoke with Shelly from the VAMC in order to discuss pre-authorization. Shelly reportedly responded that the veteran came from the VA Medical Center and that pre- authorization was not required. On March 19, 2004, an appellant facility representative contacted Greta at the VAMC. Greta advised the appellant facility case manager that the VA Center was on divert. On March 22, 2004, the appellant facility representative advised VA that the veteran would need to be on the floor for at least 24 hours before the veteran could be referred to the VAMC. VA reported that the veteran would be placed on a waiting list. The appellant facility representative also informed VA that the request to transfer was for a floor bed and not a critical care bed. On March 23, 2004, the appellant facility representative faxed clinical information pertaining to the veteran to the VAMC and spoke with Mary. Mary reported that VA officials would review the clinical information and would advise the appellant facility whether the veteran would be transferred to the VA Center or if the veteran would be left in the continuing care of the appellant facility through the date of discharge. On March 25, VA requested a clinical update on the veteran which was provided. On April 1, 2004, the appellant facility representative called VA and was informed by Stephanie that the VA center remained on critical care divert. On April 2, 2004, the appellant facility representative was again informed that VA remained on critical care divert status. VA was advised that the veteran's condition would not allow a transfer to the VAMC. On April 14, the appellant facility representative again updated VA with the veteran's clinicals. Records generated by the VAMC demonstrate that between March 18, 2004 and April 18, 2004, a "Unit Divert" for the intensive care unit was in place for 26 days. Furthermore, for the days when the "Unit Divert" was not in place, the records indicate that the veteran was medically unstable to move. The Unit Divert status was off on March 24, March 28, March 30, April 4, April 14, and April 18 of 2004. Of these dates, annotations in the VA records indicate the veteran was unstable to move. Criteria and analysis 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." In this regard, the Veterans Millennium Health Care and Benefits Act 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 (i.e., 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 non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1000-1008. To be eligible for payment or reimbursement for emergency services for non-service connected conditions in non-VA facilities, 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; (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; (d) The claim for payment or 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 (the medical emergency lasts only until the time the veteran becomes stabilized); (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; (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 (i) The veteran is not eligible for reimbursement under 38 U.S.C.A. § 1728 for the emergency treatment provided. See 38 C.F.R. § 17.1002. The appellant seeks payment or reimbursement for emergency services rendered for a nonservice-connected condition in a non-VA facility, under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1002. The VAMC denied the claim finding that the medical treatment and ancillary services provided by the appellant facility from March 18, 2004 to April 18, 2004, were not authorized by VA. It was also determined that the VAMC in Oklahoma City, Oklahoma, was available to provide the necessary treatment. The VAMC noted that the veteran presented at the facility but left due to the wait time, stating he was going to the appellant facility. The Board will assess eligibility under all of the criteria, as the Board points out that the provisions in 38 C.F.R. § 17.1002 are conjunctive, not disjunctive; i.e. all of the aforementioned enumerated criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. First, the emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public. The veteran presented to the appellant facility with symptoms of sharp chest pain radiating to the back along with nausea, vomiting, back pain and epigastric pain. The initial impression was aortic dissection from aortic arch to the renal artery and rule out acute coronary syndrome. An addendum to the emergency room note includes an assessment of thoracic defection with infarction of the right kidney. The veteran was initially treated in the emergency room. So, clearly the appellant facility provides emergency care. Second, the veteran and those receiving the veteran at the appellant facility, i.e., the medical personnel, reasonably felt that the circumstances were emergent. The veteran was hospitalized after his presentation at the appellant facility. A March 2004 hospitalization record includes the annotation that the veteran underwent "emergent" thoracic aneurysm repair on March 18, 2004, the day after he presented to the emergency room. The Board further notes the veteran presented with extreme abdominal pain which was reportedly so intense, he was unable to answer questions about his condition. An emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994). The Board notes that 38 C.F.R. § 17.1002, one of the regulations implementing the Veterans Millennium Health Care and Benefits Act, also defines emergency services. See 38 C.F.R. § 17.1002(b). Under 38 C.F.R. § 17.1002, emergency services exist where 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, and indicates that 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 lay person who possesses an average knowledge of health and medicine would 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. 38 C.F.R. § 17.1002(b). In the current case, the Board finds that, due to the extreme nature of the abdominal pain, a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The fact that the condition was emergent is borne out by the veteran's immediate admission to the appellant facility and the performance of emergency surgery and eventual discharge due to death. The veteran was properly admitted for a medical emergency and the Board finds that a medical emergency existed. Therefore, the claim for payment or reimbursement is for a condition whose symptoms were 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. The third criterion requires that VA facilities were not feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson. The VAMC denied the claim based on the fact that the veteran presented to the Oklahoma City VAMC for treatment on March 17, 2004, but left against medical advice to seek treatment at the appellant facility. VA has alleged that the pertinent VAMC was available to provide the necessary treatment for the veteran. The Board notes, however, that the VAMC has provided information regarding bed availability which indicated that, on March 18, 2004, a unit divert was on for the intensive care unit. Thus, VA's own administrative records seem to indicate that VA facilities were not available to treat the veteran when he presented to the VAMC on March 17, 2004. This finding is reinforced by subsequent administrative records which indicate the unit divert status for the intensive care unit was in place from March 18, 2004 until March 24, 2004. The only evidence of record which indicates that VA facilities were available to treat the veteran on March 17-18 is the annotation included in the statement of the case and supplemental statement of the case. The Board finds, however, that VA's own records dispute the fact that treatment facilities were available. There is no evidence in the claims file which indicates that other VA or Federal facilities were available to treat the veteran at the time he went to the appellant facility. Thus, 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. Thus, the third criterion is met. The claim for payment or reimbursement for the medical care rendered by the appellant facility was 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. There are annotations in the VA administrative records which indicate that, beginning on March 24, 2004, and continuing until the veteran's death on April 18, 2004, the veteran was found to be not stable and could not be transferred. The administrative records are silent as to the veteran's condition from March 18, 2004 to March 24, 2004. However, the records also indicate that the VAMC was on divert status for the intensive care unit from March 18, 2004 to March 24, 2004. Thus even if the veteran's condition were stable from March 18, 2004 to March 24, 2004, and he could have been moved, VA facilities were not available to receive the veteran. The Board finds that the fourth criterion has been met. 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. Associated with the claims files are records of VA medical treatment, the most recent of which (prior to March 17, 2004) is dated in April 2003. The Board finds that the fifth criterion has been met. The veteran is financially liable to the appellant for that treatment as shown by billing documents of record. Thus, the sixth criterion is met. The record does not establish that veteran has coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment that was rendered by the appellant facility. There is no evidence in the claims file indicating that the veteran had any health insurance coverage at all. 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, as the treatment was rendered for a nonservice-connected disability. Thus, the ninth criterion is met. In sum, the appellant meets the criteria for entitlement to payment or reimbursement for medical services provided by the appellant facility from March 18, 2004, to April 18, 2004, pursuant to the Millennium Bill Act. (CONTINUED ON NEXT PAGE) ORDER Payment or reimbursement for medical services provided by the appellant facility from March 18, 2004, to April 18, 2004, pursuant to the Veterans Millennium Health Care and Benefits Act, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs