Citation Nr: 0812510 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-03 292A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to reimbursement for unauthorized medical expenses incurred at a private hospital between November 2, 2006 and November 5, 2006, at the Fawcett Memorial Hospital. WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had unverified active service from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Bay Pines, Florida. In October 2007, the veteran was afforded a hearing before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDINGS OF FACT 1. Between November 2, 2006 and November 5, 2006, the veteran received emergency room and other medical services for a nonservice-connected disability, at the Fawcett Memorial Hospital, a non-VA medical facility for which he incurred medical expenses. 2. The emergency services provided between November 2, 2006 and November 5, 2006, 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; VA or other Federal facilities were not feasibly available and an attempt to use them beforehand would not have been reasonable. CONCLUSION OF LAW The criteria for payment or reimbursement of emergency services for a nonservice-connected disability at Fawcett Memorial Hospital, a non-VA facility, between November 2, 2006 and November 5, 2006, 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 for a nonservice-connected disability at Fawcett Memorial Hospital, a non-VA medical facility, between November 2, 2006 and November 5, 2006. He essentially contends that his medical expenses should be paid by VA because he attempted to schedule VA treatment, but he was given an unreasonable time frame in which to report. He states that the facility in issue, Fawcett Memorial Hospital, "is right down the street." He further asserts, in essence, that he has congestive heart failure, and that prior to the treatment at issue he experienced severe swelling, and other symptoms, such that a reasonably prudent person would expect that delay in seeking immediate medical attention would be hazardous to life or health. Service connection is not in effect for any disabilities. The veteran does not argue, and the record does not show, that prior authorization was received from the VAMC to seek emergency services at FMH on November 2, 2006, nor was an application for authorization made to VA within 72 hours of this treatment. 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 between November 2, 2006 and November 5, 2006. 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 no 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 VAMC denied the claim in November 2006, based on the determination that the veteran was not an active VA health-care participant, specifically, that the veteran had not received care under the program in the 24-month period preceding the furnishing of emergency treatment. See also February 2007 statement of the case. However, the claims file includes documents which indicate that the veteran received qualifying care in May 2005. In addition, a "report of contact," containing entries dated between November 2006 and May 2007, includes an entry dated February 21, 2007, which notes, "With further research, found that veteran had been receiving medicine from VA 5/31/05 which qualifies him medically." This notation further indicates that a VA physician had determined that "NE/VAF" (non-emergent/VA facilities) available." In February 2007, after additional evidence had been reviewed, the veteran's claim was again denied. The February 2007 notification indicates that the claim was denied at this time because VA facilities were reasonably available to provide the care, and because a prudent layperson would not have reasonably viewed the visit as an emergency or thought that a delay in seeking immediate attention would have been hazardous to life or health. There does not appear to be an issue as to whether the first 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. The claims file contains treatment reports from the Fawcett Memorial Hospital (FMH) covering treatment provided between November 2, 2006 and November 5, 2006. These records show the following: on November 2, 2006, the veteran presented at the emergency room with increased abdominal girth occurring over the past two weeks, as well as testicular swelling, and some shortness of breath. He also reported some leg swelling. His history was noted to include hypertension. He denied chest pain, palpitations, abdominal pain, nausea, vomiting, or diarrhea. On examination, he was awake, alert and in no acute distress. The abdomen was soft, nontender, and obese. There was some edema in the scrotum. There was 2-3+ pitting edema in below the knees, bilaterally. A computerized tomography (CT) scan of the abdomen revealed a small right pleural effusion, and sludge in the gallbladder. An EKG (electrocardiogram) revealed a sinus tachycardia at a rate of 103. The impression noted apparent S3 (third heart sound) on his cardiac sounds, consistent with possible cardiomyopathy and cardiac dysfunction. Important, it was noted that he could have heart failure, nephritic syndrome, or liver failure. He was admitted for further treatment. FMH reports detailing subsequent treatment during the time period in issue note the following: an echocardiogram revealed cardiomyopathy and an ejection fraction of 10 percent to 15 percent, 2+ mitral insufficiency, 2+ tricuspid insufficiency, and moderate pulmonary hypertension. The veteran underwent cardiac catheterization, which revealed cardiomyopathy with severely reduced left ventricular ejection fraction, but no significant coronary artery disease. The discharge diagnoses were nonischemic cardiomyopathy, ascites, leg edema, hypertension, and obesity. With regard to the issue of whether VA or other Federal facilities were feasibly available and an attempt to use them beforehand would not be reasonable, the veteran has testified that he attempted to schedule VA care, but he was told that he could only receive treatment if he arrived within the next 45 minutes. He states that he lives in Port Charlotte, and that it was unreasonable to expect him to arrive at Bay Pines in such a short time period, particularly given the distance involved, and traffic. Neither the November 2006 nor the February 2007 denial of this claim contain any findings of fact on this issue. The only VA evidence of relevance is a note, dated October 30, 2006, 13:09 (1:09 p.m.), which states that the veteran had phoned and reported lower abdominal pain that was tender to touch, of one week's duration. The note indicates, "Veteran offered appt (appointment) for KUB at FM for eval, but, stated he could not go." There is also a notation of "1 hr. 39 min = 87.93 miles" on a hearing worksheet, but this notation is not accompanied by any additional information. In summary, the veteran's testimony, that he was offered treatment on 45 minutes notice, and that he could not reasonably present himself within such a short time, is credible and is not contradicted by the evidence of record. The record does not contain any findings of fact on this issue, other than to note a summary conclusion that VA facilities were available. Given the foregoing, the Board finds that, affording the veteran the benefit of the doubt, the evidence is at least in equipoise on this issue. Accordingly, the Board finds that a VA facility was not feasibly available. The Board further 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 abdominal swelling, and that he was noted to have pitting edema in his lower extremities. Upon his initial treatment, it was noted that he could have heart failure, nephritic syndrome, or liver failure. He was admitted for further treatment which lasted four more days. During his stay he underwent cardiac catheterization, which revealed cardiomyopathy with severely reduced left ventricular ejection fraction. The discharge diagnoses were nonischemic cardiomyopathy, ascites, leg edema, hypertension, and obesity. Under the circumstances, it which the private hospital itself indicates that the veteran could be having heart failure, the Board finds that the veteran reasonably determined that his symptoms presented such a hazard to life as to require immediate medical attention. In summary, the evidence is insufficient to show that VA facilities were reasonably available to provide the care. 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. Accordingly, the Board finds that payment or reimbursement by VA for medical services for a nonservice-connected disability, between November 2, 2006 and November 5, 2006, at the Fawcett Memorial Hospital, a non-VA facility, under 38 U.S.C.A. §§ 1725 and 1728 and 38 C.F.R. §§ 17.120, 17.1002 is warranted. 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, the veteran was afforded VCAA notice in February 2007, and 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 between November 2, 2006 and November 5, 2006, at the Fawcett Memorial Hospital, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs