Citation Nr: 1427948 Decision Date: 06/19/14 Archive Date: 06/26/14 DOCKET NO. 14-05 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to payment of or reimbursement for unauthorized medical expenses incurred at a non-VA medical facility on July 9, 2013. (The issue of entitlement to an initial disability evaluation in excess of 10 percent for a low back disability is addressed in a separate remand.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2013 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida. The record in this case consists of the physical claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). REMAND Payment of or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2013) and 38 C.F.R. §§ 17.1000-100 2 (2013). Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. 106-117, Title I, Subtitle B, § 111, 113 Stat. 1556 (1999) (hereinafter "Millennium Health Care Act" or "Millennium Act"). To be eligible for reimbursement under this authority the appellant has to satisfy a number of criteria, including the following: The appellant 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 appellant has coverage under a health-plan contract but payment is barred because of a failure by the appellant 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); In January 2014 the Veteran provided a written chronology in support of his case. (The chronology is erroneously dated in January 2013.) As he reports, in July 2013 he and his family traveled, apparently from their home in Tipp City, Ohio, to St. Augustine, Florida, to visit Flagler College. They stopped on July 6 in Macon, Georgia and stayed there for three days. On July 9 they drove to St. Augustine. He reported that he "felt fine" until they arrived at the hotel, but when he started to get out of the car "the pain was unbearable." He added that his wife and children helped him to their room, but that after 25 to 30 minutes he could no longer tolerate the pain. He was unable to get up, so his wife called 911, and he was picked up by ambulance. He was taken by stretcher to the ambulance, and was in great pain, and was started on an IV and given a shot of morphine, "as soon as I got in the ambulance." He reportedly was then taken to the nearest hospital even though he informed the ambulance personnel that he was a Veteran and wished to be taken to a VA hospital. He reported that when first seen at Flagler Hospital he was given a shot of Dilaudid and an X-ray was taken. The same physician reportedly also gave him another shot of Dilaudid about an hour later, told him he had a back sprain, and released him. The veteran reported that despite the morphine and two shots of Dilaudid he was "still in extreme pain." When he returned to the hotel he was very sick, he believed due to the medication, and vomited. He remained in bed for four days taking Vicodin. He and his family then drove back to Macon, Georgia, where he had family. They arrived there at approximately five in the afternoon. When they arrived his pain had still not subsided, so his wife called the VA hospital in Dublin, Georgia. The Veteran added that, "at this time the pain was once again unbearable." An individual at VA advised them to go to an emergency room. They went to the Coliseum Hospital Emergency Room in Macon, Georgia, where urinalysis, blood work, and an ultrasound were performed, with the ultrasound revealing three kidney stones, including one stuck in the urinary tract. He added that he was given a prescription for pain medication, and that they stayed in Macon, "for a couple more days before we were able to drive home." He added that the day following their arrival in Dayton he went to the VA hospital there, where he had a CT scan and blood work done. After a week he reportedly passed "at least 2" of the kidney stones. The above account, as told by the Veteran in the January 2014 written statement, does not appear contradicted by emergency room and hospitalization records. A VA reviewing physician nonetheless concluded that because the Veteran was not found to be in severe pain at the time he was seen at Flagler Hospital, his condition was not then emergent, and he should have instead gone to the VA hospital in Gainesville, Florida. In the Board's opinion, the evidence satisfactorily establishes an emergent condition when the Veteran was first picked up by the ambulance on July 9. The present appeal only addresses unreimbursed medical expenses for care received at Flagler Hospital. However, records were received from both the emergency care at Flagler Hospital July 9, 2013, and that received at Coliseum Northside Hospital July 12, 2013. The Flagler Hospital record fails to specify any insurance. However, the Coliseum Northside record lists Tricare for Life as the Veteran's insurance. The Veteran has not asserted, and his narrative does not suggest that he suddenly obtained Tricare for Life in the interval between his Flagler Hospital emergent care and his care at Coliseum Northside three days later. The appealed decision declining reimbursement did so based on a finding that the care was non-emergent. No determination was made as to availability of other coverage for the emergency care received at Flagler Hospital. Remand is in order to ascertain circumstances and availability of the Veteran's healthcare coverage at the time of the Flagler Hospital emergency room visit on July 9, 2013. Accordingly, the case is REMANDED to the VAMC for the following actions: 1. The VAMC should ask the Veteran to provide information concerning the status of any health insurance he had on July 9, 2013, including in particular any Medicare and any Tricare for Life, as indicated in hospital records for the Veteran's subsequent treatment at Coliseum Northside Hospital on July 12, 2013. The Veteran should be asked to provide any documentation he may have, including with regard to coverage or non-coverage for services at Flagler Hospital on July 9, 2013. The Veteran should be informed that if he is contending that he did not have healthcare coverage on July 9, 2013, then he should explain, at minimum, how he had coverage for care received on July 12, 2013, but not coverage for care received on July 9, 2013. 2. The VAMC should undertake any other development it determines to be warranted. 3. Then, the VAMC should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the VAMC should furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Shane A. Durkin 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) (2013).