Citation Nr: 1103646 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 08-00 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Murfreesboro, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a hospitalization at the Skyridge Medical Center on March 7, 2007. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from June 1972 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2007, August 2007, and September 2007 decisions by the Department of Veterans Affairs (VA) Medical Center (VAMC), in Murfreesboro, Tennessee, that denied the above claim. The Board notes that the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board hearing) in his January 2008 Substantive Appeal (VA Form 9). However, he failed to report for the hearing scheduled in August 2010. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2010). The appeal is REMANDED to the VAMC in Murfreesboro, Tennessee. VA will notify the appellant if further action is required. REMAND The Veteran was hospitalized at the Skyridge Medical Center on March 7, 2007. He arrived at the hospital in a privately owned vehicle. Skyridge Medical Center records dated on March 7, 2007 indicate he was hospitalized for headaches that had been occurring for eight days, after being struck in the head. He was diagnosed with "acute" non-specific headaches, prescribed medication, and discharged the same day. Three separate entities furnished treatment for the Veteran on March 7, 2007 - Skyridge Medical Center, Physician Services of Cleveland, and Vista Radiology. The total hospital bill for services provided is $3,732.00. The Veteran is not service-connected for any disabilities by VA. He requests reimbursement of these unauthorized medical expenses. See December 2007 Statement of the Case (SOC); Skyridge Medical Center treatment records dated on March 7, 2007; August 2007 Notice of Disagreement (NOD). Preliminarily, the record does not contain any indication that VA authorized payment for his hospitalization at the Skyridge Medical Center on March 7, 2007. In addition, the Veteran has not established service connection for any disability. Therefore, application of 38 U.S.C.A. § 1703(a) for "authorized" private treatment is unwarranted. Moreover, since the Veteran is not service-connected for any disability, he is also ineligible for payment or reimbursement of "unauthorized" medical expenses incurred at a non-VA facility under 38 U.S.C.A. § 1728(a). There is also no evidence or allegation he is participating in a vocational rehabilitation program under 38 U.S.C. Chapter 31, which in certain instances might have qualified him under 38 U.S.C.A. § 1728. Consequently, the only conceivable route to entitlement to unreimbursed medical expenses in this case stems from 38 U.S.C.A. § 1725, for treatment of a nonservice-connected disorder, pursuant to the Veterans Millennium Health Care and Benefits Act. The Board acknowledges that effective October 10, 2008, the provisions of 38 U.S.C.A. § 1725 and § 1728 were amended. See Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). This bill makes various changes to Veteran's mental health care and also addresses other health care related matters. Although the changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of "emergency treatment" beyond the point of stabilization, none of these changes have any substantive impact on the facts of the instant case. That is, stabilization is not at issue here since the Veteran was hospitalized for under one day. Therefore, there is no prejudice to the Veteran in considering the earlier version of 38 U.S.C.A. § 1725, which is otherwise unchanged. Under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act, payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veteran's without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000- 17.1008 (2010). Specifically, to be eligible for reimbursement under these provisions for a nonservice-connected disorder, 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 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 transferred to a VA or other Federal facility (in other words, 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 (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. (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(a)-(i) (2010). These criteria under 38 C.F.R. §§ 17.1002 are conjunctive, not disjunctive; thus, all 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]. The Veteran has already met several of these criteria. That is, it has been already determined by the VAMC that the claims for reimbursement were timely filed, the Veteran is financially liable to the private provider of treatment, the Veteran is without health insurance, 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, and the services in question were provided in a hospital emergency department. See 38 C.F.R. § 17.1002(a)-(i) (2010). The remaining issues in the present case are the following: (1) whether the March 7, 2007 hospitalization at the Skyridge Medical Center was 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; and (2) whether 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. In any event, a remand is required for the medical expenses claim at issue on several grounds. First, a remand is required to secure outstanding VA treatment records. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. § 3.159(c)(2), (c)(3) (2010). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). In his August 2007 NOD, the Veteran stated that a short time prior to his March 7, 2007 hospitalization he was treated at the VA Clinic in Chattanooga, Tennessee for headaches, swelling, and a stiff neck. He was treated and prescribed medication by Dr. Vivaca Fox. The next day he says somebody at the VAMC in Murfreesboro, Tennessee told him to visit the nearest emergency room for his symptoms because the VAMC in Murfreesboro was "backed up." These VA records have not been obtained and associated with the other evidence in the medical expenses claims file, more commonly known as the duplicate Consolidated Health Record (CHR) file or Medical Administrative Services (MAS) folder. These outstanding VA treatment records, if they exist, may shed light on whether the March 7, 2007 treatment was rendered in a medical emergency and whether a VA facility was feasibly available. A remand is necessary to attempt to secure these VA records. Second, in the December 2007 SOC, the VAMC indicated that there was an additional October 24, 2007 NOD filed by the Veteran. This particular NOD has not been associated with the MAS / CHR folder. A remand is required for that purpose. Third, after securing any additional VA evidence, a medical opinion is required from an appropriate VA physician concerning whether the March 7, 2007 hospitalization at the Skyridge Medical Center was 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. The physician must be provided with a copy of the MAS / CHR folder, including any additional VA treatment records secured on remand, so that he or she can properly address this question. The previous May 2008 VA physician opinion provided no reasons or bases for the VA physician's determination. In this respect, the Board's decisions must be based on evidence in the record and "must be justified by a clear statement of reasons or bases and not by the equivalent of 'because I say so.'" Hood v. Brown, 4 Vet. App. 301, 303 (1993). Here, a denial of this claim per the VAMC would be based merely on the equivalent of "because the Chief of Staff said so" without any rationale for the opinion. This time, a clear rationale for the opinion must be provided by the appropriate VA physician. Fourth, after securing any additional VA evidence, an opinion is required from an appropriate VA administrator concerning whether on March 7, 2007 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 VA administrator must be provided with a copy of the MAS / CHR folder, including any additional VA treatment records secured on remand, so that he or she can properly address this question. The previous June 2007 VA administrator opinion provided no reasons or bases for the conclusions reached. This time, a clear rationale for the opinion must be provided by the appropriate VA administrator. Accordingly, the unauthorized medical expenses claim is REMANDED to the VAMC in Murfreesboro, Tennessee, for the following development and consideration: 1. Obtain the records of any medical treatment for the Veteran's headaches from the VA Clinic in Chattanooga, Tennessee dated in February 2007 and March 2007. The Veteran says he was treated by a Dr. Vivaca Fox at that VA clinic a short time prior to his March 7, 2007 hospitalization. Also obtain any VA administrative, phone, or other records dated March 7, 2007 from the VAMC in Murfreesboro, Tennessee addressing whether VA personnel told the Veteran to visit the nearest emergency room for his headache symptoms because the VAMC in Murfreesboro was "backed up." See August 2007 NOD; January 2008 VA Form 9. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. Secure the additional October 24, 2007 NOD filed by the Veteran that is noted in the December 2007 SOC and associate it with the MAS / CHR folder. At present, this document is not in the claims file. 3. Then, after securing the above records, request a medical opinion from an appropriate VA physician concerning the following: Was the medical situation on March 7, 2007 of such nature that a prudent layperson reasonably would have expected that delay in seeking immediate medical attention would have been hazardous to life or health? The physician must be provided with a copy of the MAS / CHR file, including any additional VA treatment records secured on remand, so that he or she can properly address this question. A clear rationale for the opinion must be provided by the VA physician. 4. Then, after securing the above records, request an opinion from an appropriate VA administrator concerning the following: Were VA facilities feasibly available on March 7, 2007, and would an attempt to use them beforehand have been reasonable by a prudent layperson? In addressing this question, the VA administrator may consider such factors as whether the VA facility had available room, the relative distance involved in obtaining VA and private treatment, the urgency of the Veteran's medical condition, the nature of treatment making it necessary or economically advisable to use non-VA facilities, or if the Veteran was not responsible for going to the non-VA facility. The VA administrator must be provided with a copy of the MAS / CHR file, including any additional VA treatment records secured on remand, so that he or she can properly address this question. A clear rationale for the opinion must be provided by the VA administrator. 5. Then readjudicate the unauthorized medical expenses claim in light of the additional evidence of record. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case. An appropriate period of time should be allowed for response from the Veteran. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).