Citation Nr: 0812367 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-13 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Gainesville, Florida THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at a private hospital on September 7, 2005. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active military service from September 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Gainesville, Florida. In September 2006, and September 2007, the Board remanded the claim for additional development. In both cases, the Board remanded the claim in order to schedule the veteran for a hearing. Most recently, in February 2008, the veteran was notified that a hearing had been scheduled in March 2008. However, in a statement received in February 2008, the veteran stated that he wished to withdraw his request for a hearing. See 38 C.F.R. § 20.702(e) (2007). Accordingly, the Board will proceed without further delay. FINDINGS OF FACT 1. On September 7, 2005, the veteran was transported by ambulance and received emergency room medical services for a nonservice-connected disability at the Satilla Regional Medical Center, a non-VA medical facility for which he incurred medical expenses. 2. The emergency services provided on September 7, 2005, were of such a nature that a reasonably prudent person would expect that delay in seeking immediate medical attention would be hazardous to life or health. CONCLUSION OF LAW The criteria for payment or reimbursement of emergency services for a nonservice-connected disability at Satilla Regional Medical Center, a non-VA facility, on September 7, 2005, have been met. 38 U.S.C.A. §§ 1725, 1728, 5107(b) (West 2002); 38 C.F.R. §§ 17.120, 17.1002 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks payment or reimbursement for emergency services, including transport by ambulance, for a nonservice- connected disability at a non-VA medical facility on September 7, 2005. He essentially contends that his medical expenses should be paid by VA because he reasonably believed that the medical services at issue were rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health. As of September 7, 2005, service connection was in effect for diabetes mellitus, evaluated as 10 percent disabling. The claims file contains several billing documents reflecting the costs of the veteran's emergency services, including the transport by ambulance incurred on September 7, 2005, as well as a CT (computerized tomography) scan of the head. The veteran does not argue, and the record does not show, that prior authorization was received from the VAMC to seek emergency services at SRMC on September 7, 2005, or was an application for authorization made to VA within 72 hours of the emergency services on September 7, 2005. For these reasons, in the absence of prior authorization or deemed prior authorization for medical services, there is no factual or legal basis for payment or reimbursement by VA under 38 C.F.R. §§ 17.52, 17.53, and 17.54 for medical services for a nonservice-connected disability at a non-VA facility on September 7, 2005. Where pre-authorization has not been approved for medical services, under 38 C.F.R. § 17.120, VA may pay or reimburse the veteran for medical services for a nonservice-connected disability associated with and aggravating a service connected disability. In this case, the medical services rendered to the veteran were not for the purpose of treating a nonservice-connected disability which was aggravating a service-connected disability. Accordingly, the criteria for payment or reimbursement by VA for unauthorized medical expenses under 38 U.S.C.A. § 1728, and 38 § C.F.R. § 17.120, are not met. The veteran has specifically voiced disagreement with the VAMC's determination under the Veterans Millennium Health Care and Benefits Act, 38 U.S.C.A. § 1725, implemented in part at 38 C.F.R. §§ 17.1000 and 17.1002. Pursuant to 38 U.S.C.A. § 1725, VA may reimburse a veteran for the reasonable value of emergency treatment furnished the veteran in a non-Department facility if: (1) a veteran is an active VA health-care participant, that is, a participant in a health-care program under 38 U.S.C.A. § 1705(a) and the veteran received care under the program in the 24-month period preceding the furnishing of emergency treatment; (2) a veteran is personally and financially liable for emergency treatment furnished the veteran in a non-Department facility; (3) a veteran is not entitled to care or services under any other health-plan and has no other contractual or legal recourse against a third party; and (4) a veteran is not eligible for reimbursement for medical services under 38 U.S.C.A. § 1728. For purposes of 38 U.S.C.A. § 1725, the term "emergency treatment" means medical services furnished, in the judgment of the Secretary, (1) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (2) when such services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (3) until such time as the veteran can be transferred safely to a Department facility. Under 38 C.F.R. § 17.1002, implementing 38 U.S.C.A. § 1725, payment or reimbursement by VA for emergency services may be made only if all conditions are met. The pertinent conditions at issue here are: (1) The emergency services were provided in a hospital emergency department 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 (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); and (3) A VA facility was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. Stated simply, the regulation provides authority for VA to pay or reimburse the veteran for emergency services for a nonservice-connected disability at a non-VA facility, only if all conditions under 38 C.F.R. § 17.1002 are met. In other words, if any one condition is not met, VA can not by operation of law pay or reimburse the veteran for the emergency services. In this case, the RO denied the claim based on failure to satisfy the second requirement under 38 U.S.C.A. § 1725, and 38 C.F.R. § 17.1002, pertaining to emergency treatment. It does not appear that there is an issue as to the first and third criteria under 38 U.S.C.A. § 1725, and 38 C.F.R. § 17.1002, and the claims file does not contain any findings pertaining to these criteria. As for the second criteria, i.e., the requirement that the medical services be rendered in a medical "emergency", under the standard of the reasonable prudent layperson, the evidence is as follows: In the veteran's notice of disagreement, received in December 2005, he states the following: he had a stroke in July 2005; he was subsequently told that if he had any medical problems with feeling strange to call 911 and report to the hospital emergency room; on September 7, 2005, he had about five seizures and he thought that he was experiencing another stroke; a neurologist told him that he could have been having "mini-strokes." Records of the Satilla Regional Medical Center (SRMC) show that on September 7, 2005, the veteran was delivered to the emergency room by city ambulance, with a "chief complaint" and "associated symptoms" of dizziness, lightheadedness, tremors, nausea, and two episodes of vomiting. The "initial assessment" notes that his symptoms were dizziness, hyperglycemia, hypertension, nausea and vomiting, stroke/CVA. His history was noted to include DM (diabetes mellitus) and a CVA (cardiovascular accident). The SRMC report indicates that he was placed on oxygen and a heart monitor, that he was provided with IV (intravenous) fluids, and that his glucose was monitored. The "narrative" portion of the report states that the veteran reported dizziness and trembling of his upper torso, nausea, and two episodes of vomiting, and that he had a history of CVA and "right eye," recently. A statement from the veteran's daughter, dated in January 2006, indicates that she is a registered nurse at SRMC, and that she was present in the emergency room on September 7, 2005 when the veteran arrived. She states that the veteran was experiencing severe tremors which prevented him from signing admitting papers, which she had to sign for him. In addition, she states that she witnessed two periods of severe tremors that each lasted about 15 minutes. The Board must find that this statement must be entitled to great probative weight. The Board finds that the veteran's treatment was of such a nature that a reasonably prudent person would expect that delay in seeking immediate medical attention would be hazardous to life or health. The record shows that the veteran sought emergency services because of dizziness, tremors, and nausea, with two episodes of vomiting, and that he had diabetes mellitus, and a recent history of a cardiovascular accident with involvement of the right eye. The evidence indicates that his tremors were severe. Under the circumstances, the Board finds that he reasonably determined that his symptoms presented such a hazard to life as to require immediate medical attention. In summary, the condition that emergency services must be rendered in a medical emergency of such a nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health has been met. There does not appear to be an issue as to whether the first and third criteria have been met for payment or reimbursement by VA for unauthorized emergency services under 38 U.S.C.A. § 1725 and § 38 C.F.R. § 17.1002. Accordingly, the Board finds that payment or reimbursement by VA is warranted for medical services for a nonservice- connected disability, including transport by ambulance, incurred at the SRMC, a non-VA facility, on September 7, 2005, under 38 U.S.C.A. §§ 1725 and 1728, and 38 C.F.R. §§ 17.120, 17.1002. 38 U.S.C.A. § 5107(b). As a final matter, on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law with significant changes in VA's duty to notify and assist. Regulations implementing the VCAA have also been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). There is no indication in the VCAA that Congress intended the act to revise the unique, specific claim provisions of Chapter 17, Title 38 of the United States Code. See 38 C.F.R. §§ 17.123-17.132; see also Barger v. Principi, 16 Vet. App. 132, 138 (2002). In any event, given the favorable determination of the claim, there is no further duty to notify or to assist. In the future, in light of the high cost of private health care treatment (which impacts the ability of the VA to pay for veterans' services when we are asked to pay for such costs); the veteran is asked to make every effort to seek treatment at a VAMC, when possible. ORDER Payment or reimbursement of emergency services incurred on September 7, 2005, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs