Citation Nr: 1303151 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 05-10 808A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Tampa, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of medical treatment provided from February 3, 2004, to February 5, 2004, at Lakeland Regional Medical Center in Lakeland, Florida. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1960 to February 1964. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Medical Center in Tampa, Florida. This case was remanded by the Board in February 2009 for additional development. FINDINGS OF FACT 1. On February 3, 2004, the Veteran was seen in the Emergency Department at Lakeland Regional Medical Center (Lakeland) in Lakeland, Florida, where he received private medical care for complaints of light-headedness, an irregular heartbeat, and tingling in his hands and feet. He was subsequently admitted to the hospital for testing and was discharged home on February 5, 2004. 2. Payment or reimbursement of the cost of the private medical care received at Lakeland was not authorized in advance by VA. 3. The evidence of record demonstrates that a medical professional actively believed that delay in seeking immediate medical attention would have been hazardous to the Veteran's life or health. 4. A medical professional determined that the nearest available appropriate level of care was at a non-VA medical center. 5. The Veteran's medical condition was stable as of February 3, 2004. 6. The VA Medical Center (VAMC) in Tampa Florida did not refuse to accept a transfer of the Veteran at any time from February 3, 2004, to February 5, 2004. 7. Lakeland did not document any attempts to transfer the Veteran to any VA facility. CONCLUSIONS OF LAW 1. The criteria for payment or reimbursement of unauthorized private medical expenses incurred for initial emergency evaluation treatment on February 3, 2004 at Lakeland Regional Medical Center in Lakeland, Florida, have been met. 38 U.S.C.A. §§ 1725, 1728, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.1002 (2012). 2. The criteria for payment or reimbursement of unauthorized private medical expenses incurred for medical treatment beyond the initial emergency evaluation provided from February 3, 2004, to February 5, 2004, at Lakeland Regional Medical Center in Lakeland, Florida, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 17.120, 17.1002 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must assist a claimant at the time that he files a claim for benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As part of that assistance, VA is required to notify claimants of what they must do to substantiate their claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). However, those provisions do not apply where, as here, the claim is for benefits under 38 U.S.C. Chapter 17. 38 C.F.R. §§ 17.123-17.132 (2012); Barger v. Principi, 16 Vet. App. 132 (2002). A Board hearing was held before a Veterans Law Judge (VLJ) in St. Petersburg, Florida in January 2009. The VLJ who took the Veteran's testimony at that hearing has since left the Board. The Veteran was informed of that in a November 2012 letter and given the opportunity to have another Board hearing. He was told in the letter that if he did not respond in 30 days, the Board would assume that he did not want another hearing. The Veteran did not respond to the letter within 30 days. Therefore, the Board assumes that he does not want another hearing and will proceed with adjudication of the Veteran's claim. The facts of this case are not in dispute. In early February 2004 the Veteran began experiencing various symptoms which he has since reported as including tingling and numbness in his extremities, lightheadedness, an irregular heartbeat, and high blood pressure. On February 3, 2004, the Veteran consulted with his daughter, who is a Registered Nurse. She advised him to call VA and request an appointment. The Veteran called the VAMC in Tampa Florida at approximately 1:00 p.m., and reported a chief complaint of hypertension for the previous three days. The Veteran was scheduled for an appointment the next day at 8:00 a.m. The Veteran then consulted his daughter further, who eventually came to his house and examined him personally. She decided that, based on his symptoms and family history, he needed to go to the nearest emergency room, which was located at Lakeland. He arrived at Lakeland at approximately 4:00 p.m. and reported a sudden onset three days before of light-headedness, an irregular heartbeat, and tingling in his hands and feet. The initial diagnostic impression had differential diagnoses of arrhythmia, electrolyte abnormality, transient ischemic attack, and cerebral vascular accident. Following diagnostic testing, the final diagnostic impression was weakness. The Veteran was then admitted for to the hospital at Lakeland for weakness. At approximately 7:20 a.m. on February 4, 2004, the Veteran called the VAMC and cancelled his appointment, stating that he was seen in the emergency room at Lakeland due to needing immediate medical attention. The Veteran was subsequently discharged from Lakeland on February 5, 2004, after diagnostic testing was negative and his symptoms went away. He was advised to follow up with a VA hospital. VA may contract with non-VA facilities to provide medical services for which VA may assume financial responsibility in certain circumstances. 38 U.S.C.A. § 1703(a) (1)-(8) (West 2002); 38 C.F.R. § 17.52 (2012). However, there is no allegation in this case that VA contracted with Lakeland Regional Medical Center for the Veteran's medical treatment. A claim for payment or reimbursement of services not previously authorized may be filed by the Veteran who received the services (or his guardian) or by the hospital, clinic, or community resource which provided the services, or by a person other than the Veteran who paid for the services. 38 C.F.R. § 17.123 (2012). To the extent allowable, payment or reimbursement of the expenses of care, not previously authorized, in a private or public (or Federal) hospital not operated by VA, or of any medical services not previously authorized including transportation (except prosthetic appliances, similar devices, and repairs) may be paid on the basis of a claim timely filed, under the following circumstances: (a) For Veterans with service-connected disabilities. Care or services not previously authorized were rendered to a Veteran in need of such care or services: (1) For an adjudicated service-connected disability; (2) For nonservice-connected disabilities associated with and held to be aggravating an adjudicated service- connected disability; (3) For any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability; (4) For any illness, injury or dental condition in the case of a Veteran who is participating in a rehabilitation program under 38 U.S.C. Chapter 31 and who is medically determined to be in need of hospital care or medical services for any of the reasons enumerated in § 17.48(j); and (b) In a medical emergency. Care and services not previously authorized were rendered in a medical emergency of such nature that delay would have been hazardous to life or health, and (c) When Federal facilities are unavailable. VA or other Federal facilities were not 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 C.F.R. § 17.120 (2012); 38 U.S.C.A. § 1728(a) (1)-(3) (West 2002). All three statutory requirements must be met before reimbursement can be authorized. Zimick v. West, 11 Vet. App. 45 (1998); Malone v. Gober, 10 Vet. App. 539 (1997). In this case, the Veteran does not currently have any service-connected disabilities. There is also no other evidence that the Veteran was rated as permanently and totally disabled due to service-connected disorders, or was participating in a rehabilitation program at the time of his care in February 2004. Accordingly, criterion (a) is not satisfied, and there is no basis to establish entitlement to reimbursement under 38 U.S.C.A. § 1728. 38 C.F.R. § 17.120 (2012). However, 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. To be eligible for reimbursement under that authority, all of the following conditions must be satisfied: (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 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 (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). 38 C.F.R. § 17.1002 (2012). VA recently amended its regulations concerning reimbursement for emergency hospital care and medical services provided to eligible veterans for service-connected and nonservice-connected conditions at non-VA facilities. The purpose of those amendments was to implement provisions from § 402 of the Veterans' Mental Health and Other Care Improvements Act of 2008 (the Act), Public Law No. 110-387, 122 Stat. 4110, which revised 38 U.S.C. §§ 1725 and 1728. The regulatory amendments made the following revisions in accordance with the Act: (1) requiring VA to reimburse the covered costs for emergency care received at non-VA facilities for eligible veterans under §§ 1725 and 1728; (2) extending VA's payment authority for emergency treatment received at a non-VA facility until such time as the Veteran can be transferred safely to a VA facility or other Federal facility and such facility is capable of accepting such transfer, or until such transfer was accepted, so long as the non-VA facility made and documented reasonable attempts to transfer the Veteran to a VA facility or other Federal facility; and (3) making the definition of emergency treatment in § 1725(f)(1) applicable to § 1728, including by replacing the standard for determining the existence of a medical emergency in § 17.120(b) with the prudent layperson standard. The amendments likewise affected 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, 17.1008. The effective date of those amendments was January 20, 2012. 76 Fed. Reg. 79067-79072 (Dec. 21, 2011). Initially, the Board notes that there is no controversy in this case as to whether the requirements of 38 C.F.R. § 17.1002(a), (e), (f), (g), (h), and (i) have been met. 38 C.F.R. § 17.1002 (2012). There is no evidence of record that any of those elements have not been met, and VA did not cite any of those elements as a reason for denying the Veteran's claim. Combined with relevant evidence of record, the Board therefore accepts that the Veteran has met those elements of his claim. The claim before the Board thus revolves around whether 38 C.F.R. § 17.1002(b), (c), and (d) were met and if, during the relevant period, they ceased to be met. Under 38 C.F.R. § 17.1002(b), 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 the regulation indicates that this standard is met if there is an emergency medical condition manifesting itself by acute symptoms of sufficient severity 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) (2012). The regulations do not require that a Veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need only be demonstrated that the initial evaluation and treatment was 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. In this case, the evidence of record demonstrates that the Veteran had been having unusual symptoms for several days. His daughter spoke with him over the phone about his symptoms and then went to his home and noted that he had high blood pressure and an irregular heartbeat. As a result, she advised that he go to the nearest emergency room, and subsequently drove him there herself. The Veteran's daughter is a medical professional. Therefore, the evidence of record demonstrates not only that a prudent layperson would have believed that the Veteran's situation was emergent in nature, but that a medical professional actively believed that delay in seeking immediate medical attention would have been hazardous to the Veteran's life or health. Therefore, the Board finds that the requirements of 38 C.F.R. § 17.1002(b) were met at the time the Veteran sought treatment at the emergency room at Lakeland. 38 C.F.R. § 17.1002(b) (2012). Under 38 C.F.R. § 17.1002(c) a VA or other Federal facility or provider must not have been feasibly available and an attempt to use them before hand would not have been considered reasonable by a prudent layperson. The regulations cite as an example of the conditions being met a situation where 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. 38 C.F.R. § 17.1002(c) (2012). The Veteran was personally driven to Lakeland by his daughter. The evidence of record shows that, at the time of the incident, the Veteran lived approximately 36 miles from the VAMC but only about 6 miles from Lakeland. As Lakeland was significantly closer than the VAMC and the Veteran's daughter is a medical professional, the Board accepts that, in this case, a medical professional determined that the nearest available appropriate level of care was at a non-VA medical center. Therefore, the Board finds that the requirements of 38 C.F.R. § 17.1002(c) were met at the time the Veteran sought emergency room treatment at Lakeland. 38 C.F.R. § 17.1002(c) (2012). As a result, the Board concludes that the Veteran has met the requirements for reimbursement of the costs of the initial emergency evaluation and treatment. Under 38 C.F.R. § 17.1002(d), VA will pay for expenses incurred beyond the initial emergency evaluation and treatment, if the medical emergency was of such a nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility. 38 C.F.R. § 17.1002(d) (2012). In addition, the regulatory changes created by the Veterans' Mental Health and Other Care Improvements Act of 2008 are such that once the emergent nature of a Veteran's initial treatment has been conceded, the emergency treatment will be considered to continue even if the Veteran was stable or otherwise was capable of being safely transferred to a VA facility if no VA facility or other Federal facility agreed to accept such transfer and the non-VA facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the Veteran to a VA facility or other Federal facility. Thus, as the Veteran's treatment on admission on February 3, 2004, has been found to be emergent in nature, that emergency treatment will be found to have continued while his condition remained unstable. The emergency treatment will also be found to have continued even after the Veteran's condition stabilized if a VA facility refused to accept a transfer of the Veteran and Lakeland documented reasonable attempts to transfer the Veteran to the VA facility. Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4110. Thus, the remaining questions are (1) when the Veteran's condition stabilized, (2) whether a VA facility refused to accept a transfer of the Veteran, and (3) whether Lakeland documented proper attempts to transfer the Veteran to a VA facility. In this case, the evidence of record does not favor the Veteran on any of those three questions. First, the medical evidence of record clearly demonstrates that the Veteran's condition stabilized. The February 3, 2004, emergency room triage report did not note any abnormalities on physical examination and he appeared in no apparent distress. A subsequent complete physical examination also found no abnormalities. There is no evidence of record that the Veteran's medical condition was ever unstable at any point during his treatment at Lakeland from February 3, 2004, to February 5, 2004. On the basis of that evidence, an April 2009 note from a VA physician concluded that the Veteran's condition was such that he could have been transferred. There is no medical evidence of record which contradicts that opinion. Second, there is no evidence of record that a VA facility refused to accept a transfer of the Veteran. There is no documentation in the record that VA ever refused to accept a transfer of the Veteran. The Veteran claims that evidence of refusal is demonstrated by VA's decision to give him an appointment the following day when he called on February 3, 2004. However, that appointment does not prove any such thing for two reasons. First, the telephone triage report does not include any indication that VA was aware the Veteran was having an emergency medical situation which required immediate treatment. No such urgency is documented in the report and the only positive complaint listed was hypertension. Therefore, VA's decision to schedule the Veteran for an appointment the following morning cannot be equated to a refusal to accept the Veteran for emergency medical treatment. Second, VA actively gave the Veteran an appointment for February 4, 2004, at 8:00 a.m. That appointment demonstrates that a VA facility was not only available to accept the Veteran 16 hours after he arrived at Lakeland, but actively prepared for and expecting him. Therefore, it certainly cannot be found that VA refused transfer of the Veteran at any time after February 4, 2004, at 8:00 a.m. Furthermore, there is no evidence that VA refused transfer of the Veteran prior to that date. Third, there is no evidence of record that Lakeland made any attempts to transfer the Veteran to a VA facility. Not only are no such attempts documented, the February 3, 2004, emergency room triage report specifically noted that the Veteran had medical care with VA and a named VA physician, but indicated that VA and the VA physician were not to be called. The only evidence of record of any contact with VA during the Veteran's period of treatment at Lakeland are two telephone reports dated on February 4, 2004. The first was from the Veteran himself, who called to inform VA that he was cancelling his appointment as he was being seen in the emergency room of Lakeland due to needing immediate medical attention. A few hours later, his daughter also called VA to notify them that the Veteran had been admitted to Lakeland. Neither of those contacts were made by Lakeland itself. There is no evidence of record that either the Veteran or his daughter made any request to have the Veteran transferred to the VAMC during their phone calls. The actions of the Veteran and his daughter in notifying VA of the Veteran's medical status were not analogous to an attempt by Lakeland to transfer the Veteran to a VA facility. 38 C.F.R. § 17.1002(d) (2012). Accordingly, applying the doctrine of reasonable doubt, the Board finds that all the requirements of 38 C.F.R. § 17.1002 have been satisfied with respect to the Veteran's initial emergency evaluation treatment at Lakeland on February 3, 2004. However, the requirements of 38 C.F.R. § 17.1002(d) are not satisfied with respect to the Veteran's treatment beyond the initial emergency evaluation at Lakeland from February 3, 2004, to February 5, 2004. Therefore, the Veteran is eligible to receive reimbursement for the expense of the initial emergency evaluation and treatment in question under the provisions of 38 U.S.C.A. § 1725. However, he is not eligible to receive reimbursement for any treatment beyond the initial emergency evaluation, to include his admission to Lakeland following emergency room evaluation until February 5, 2004. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Payment or reimbursement for the cost of initial emergency evaluation treatment on February 3, 2004 at Lakeland Regional Medical Center in Lakeland, Florida is granted. Payment or reimbursement for the cost of medical treatment beyond the initial emergency evaluation provided from February 3, 2004, to February 5, 2004, at Lakeland Regional Medical Center in Lakeland, Florida is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs