Citation Nr: 0814669 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-21 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Leeds, Massachusetts THE ISSUE 1. Entitlement to reimbursement for transportation expenses incurred on March 18, April 23, April 29, October 26, December 3, and December 25, 2005. 2. Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on October 28, 2005 from West Central Family & Counseling. 3. Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on November 10, 2005 from Hudson Home Health Care. 4. Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred from November 24, 2005 to December 3, 2005 at Cooley Dickinson Hospital. 5. Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on December 3, 2005 to December 20, 2005 at Baystate Medical Center. 6. Entitlement to reimbursement for the cost of unauthorized private medical expenses incurred on December 20, 2005, December 28, 2005, and January 1, 2006 at North Adams Commons Nursing Home. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. A. Mishalanie, Counsel INTRODUCTION The veteran reportedly served on active duty in the military from January 1969 to April 1970. He died in January 2006. The appellant is his sister. She was his guardian while he was alive and is now pursuing this appeal on behalf of his estate. This appeal to the Board of Veterans' Appeals (Board) arose from December 2005, January 2006, and April 2007 decisions of the Department of Veterans Affairs (VA) Medical Center (MC) in Leeds, Massachusetts (Northampton VAMC). In September 2007, the appellant testified at a hearing before the undersigned at the Regional Office (RO) in White River Junction, Vermont. A transcript of the proceeding is of record. At the hearing, she submitted additional medical evidence and waived initial consideration of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. §§ 20.800, 20.1304(c) (2007). FINDINGS OF FACT 1. The veteran had a total disability permanent in nature resulting from a service-connected disability. 2. VA did not provide authorization for special mode of transportation on March 18, April 23, April 29, October 26, December 3, and December 25, 2005; and such mode of transportation was not undertaken in connection with a medical emergency. 3. The services rendered on October 28, 2005, were not in connection with a medical emergency of such a nature that delay would have been hazardous to the life or health of the veteran. 4. The services rendered on November 10, 2005, were not in connection with a medical emergency of such a nature that delay would have been hazardous to the life or health of the veteran. 5. The services rendered from November 24, 2005 to December 3, 2005 at Cooley Dickinson Hospital were not in connection with a medical emergency of such a nature that delay would have been hazardous to the life or health of the veteran. 6. The services rendered from December 3, 2005 to December 20, 2005 at Baystate Medical Center were not in connection with a medical emergency of such a nature that delay would have been hazardous to the life or health of the veteran. 7. The services rendered on December 21 and 28, 2005, and January 1, 2006 at North Adams Commons Nursing Home were not in connection with a medical emergency of such a nature that delay would have been hazardous to the life or health of the veteran. CONCLUSIONS OF LAW 1. The criteria for entitlement to special mode transportation have not been met. 38 U.S.C.A. § 111 (West 2002); 38 C.F.R. § 17.143 (2007). 2. Payment or reimbursement for the cost of medical services provided on October 28, 2005 from West Central Family & Counseling is not warranted. 38 U.S.C.A. §§ 1701, 1703, 1725, 1728 (West 2002 & Supp. 2007); 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008 (2007). 3. Payment or reimbursement for the cost of medical services provided on November 10, 2005 from Hudson Home Health Care is not warranted. 38 U.S.C.A. §§ 111, 1701, 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.143, 17.1000-1008. 4. Payment or reimbursement for the cost of medical services provided from November 24, 2005 to December 3, 2005 at Cooley Dickinson Hospital is not warranted. 38 U.S.C.A. §§ 1701, 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000- 1008. 5. Payment or reimbursement for the cost of medical services provided from December 3, 2005 to December 20, 2005 at Baystate Medical Center is not warranted. 38 U.S.C.A. §§ 1701, 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008. 6. Payment or reimbursement for the cost of medical services provided on December 20, 2005, December 28, 2005, and January 1, 2006, at North Adams Commons Nursing Home is not warranted. 38 U.S.C.A. §§ 1701, 1703, 1725, 1728; 38 C.F.R. §§ 17.52, 17.54, 17.120, 17.1000-1008. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Pursuant to the VCAA, upon receipt of complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). The RO sent a VCAA notice letter to the appellant in April 2007. The letter provided her with notice of the evidence necessary to support her claims that was not on record at the time the letter was issued, the evidence VA would assist her in obtaining, and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The letter also specifically requested that she submit any evidence in her possession pertaining to her claims. Thus, the content of the letter provided satisfactory VCAA notice in accordance with § 5103(a) and § 3.159(b)(1) as specified in Pelegrini II. Content-complying VCAA notice, to the extent possible, must be provided prior to an initial unfavorable decision by the RO. Pelegrini II, 18 Vet. App. at 120; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case the April 2007 notice was provided after to the initial denials and on the same day that a statement of the case (SOC) was issued. There has been no readjudication of the claims since the notice; however, the appellant was provided an opportunity to testify and provide additional evidence at a hearing before the Board in September 2007. As mentioned, she had the opportunity to, and in fact did, submit additional evidence. She did not indicate she had any additional information or evidence to submit or that needed to obtained. She therefore, had a meaningful opportunity to participate in the adjudication of the claims after receiving the required notice. The timing deficiency was thus not prejudicial and did not affect the essential fairness of the adjudication. Overton v. Nicholson, 20 Vet. App. 427, 442- 443 (2006). In developing her claims, the VAMC obtained records of authorized non-VA medical care and treatment records from Baystate Medical Center were submitted. There is no reported evidence that has not been obtained. No further development is required to comply with the provisions of the VCAA or the implementing regulations. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claims. Analysis As an initial matter, the Board notes that there is some question as to whether the appellant has standing to bring these claims or continue the appeal on behalf of the veteran's estate. In a recent conclusory, and hence non- precedential, opinion VA's General Counsel discussed under what circumstances a claim for reimbursement for medical expenses survives the death of the veteran. VAOPGCCONCL 1- 2007 (Oct. 29, 2007). VA's General Counsel opined that unless the appellant belongs to one of the categories of statutorily-authorized claimants, the appeal must be dismissed. The plain language of 38 U.S.C.A. § 1728 authorizes payment to the hospital or other health facility furnishing the care or services; or to the person or organization making such expenditure on behalf of such veteran. Therefore, if the claimant or the appellant is the care provider or a person other than the veteran who paid for the services, consideration of the appeal should proceed. VA's General Counsel opined that the veteran's estate did not have legal standing to pursue a pending claim or appeal, and no substitutions or new claims should be permitted. With regard to guardian status, VA's General Counsel explained that because a person loses guardian status when the veteran dies, he or she would no long have standing under the plain language of statute or regulation (38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120-17.132). Accordingly, neither the plain language of the statute or its implementing regulations permit a claim for reimbursement by a deceased- veteran's estate. VAOPGCCONCL 1-2007, 3, citing Strawser et al. v. Atkins et al., 290 F.3d 720, 732 (4th Cir. 2002). In a September 2006 letter, the appellant stated that she had enclosed a full listing of the medical and dental bills she had to pay for the veteran. It is unclear whether she paid these bills out-of-pocket or whether she paid them from the estate of the veteran. If she paid these bills from the estate, according to the VA General Counsel's non- precedential opinion, she would not have legal standing to bring these claims or pursue the appeal. If she paid these bills out-of-pocket, she would have standing as a third party payor. Assuming arguendo that the appellant has legal standing to bring the claims for reimbursement, the claims must be denied because the evidence does not indicate the medical expenses were authorized by VA or rendered in a medical emergency. Hence the outcome is the same whether or not she has standing. There is no contention or evidence that the expenses for which reimbursement is sought were authorized by VA. A determination must be made as to whether the unauthorized expenses were incurred under circumstances that would permit reimbursement. Hennessey v. Brown, 7 Vet. App. 143 (1994). Unauthorized expenditures may be paid or reimbursed in accordance with 38 U.S.C.A. §§ 1725 or 1728. Under Section 1728, payment may be made for care rendered for an adjudicated service- connected disability, a nonservice-connected disability aggravating a service-connected disability, for any disability of a veteran who has a total disability permanent in nature resulting from a service-connected disability, or, in certain circumstances, any illness, injury, or dental condition in the case of a veteran who is a participant in a vocation rehabilitation program. 38 U.S.C.A. §1728(a)(2); 38 C.F.R. § 17.120(a). Payment may be made if the care and service not previously authorized were rendered in a medical emergency of such a nature that delay would have been hazardous to life or health; and when VA or other Federal facilities were not feasibly available, and an attempt to use them before them beforehand or obtain prior VA authorization for the service required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 U.S.C.A. § 1728(a); 38 C.F.R. § 17.120(b), (c). Alternatively, payment or reimbursement for emergency treatment in non-VA facilities may be authorized under Section 1725 and 38 C.F.R. §§ 17.1000- 1008. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act. To be eligible for reimbursement under this authority 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 nature that a prudent layperson would have reasonably expected that delay in seeking 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 beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could 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 not 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 (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.A. 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 the 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.A. 1728 for the emergency treatment provided (38 U.S.C.A. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of veteran's, primarily those who receive emergency treatment for a service-connected disability). Id. The veteran was service connected for paranoid schizophrenia at 100 percent. His disability was considered permanent in nature. He died in January 2006. As mentioned, prior to his death, the appellant was his guardian and she is now pursuing this appeal on behalf of his estate. On March 18 and April 23, 2005, the veteran was transferred from Baystate Medical Center to St. Luke's Rest Home by ambulance services provided by Ambulance Medical Response of Massachusetts, Inc. (AMR). On April 29, 2005, he was transferred from Baystate Medical Center to St. Luke's Rest Home by ambulance services provided by Baystate Health Services. On October 26, 2005, he was transferred from Baystate Medical Center to Country Estates Nursing Home by ambulance services provided by Baystate Health Services. On December 3, 2005, he was transferred from Cooley Dickenson Hospital to Baystate Medical Center by ambulance services provided by AMR. On December 25, 2005, he was transferred from North Adams Regional Hospital to North Adams Commons Nursing Home by ambulance services provided by North Adams Ambulance. Payment or reimbursement of expenses related to a special mode of travel by VA is not authorized unless travel by such mode is medically required and is authorized before the travel begins, or travel by such mode is in connection with a medical emergency of such a nature that the delay to obtain authorization would be hazardous to the person's life or health. 38 U.S.C.A. § 111(b)(3); C.F.R. § 17.143(c)(2)(iii). In this case, the transportation was not authorized in advance. The transportation to St. Luke's Rest Home, Country Estates Nursing Home, and North Adams Commons Nursing Home was to the veteran's place of residence and was not in connection with a medical emergency. Furthermore, the bill from North Adams Ambulance Service states that charges were incurred at the non-emergency base rate. The transportation from Cooley Dickson Hospital to Baystate Medical Center was in connection with an elective heart valve surgery. At the September 2007 hearing, the appellant admitted that this surgery was elective and not considered a medical emergency. Therefore, payment or reimbursement is not authorized for services rendered by the above-mentioned ambulance services. Services rendered on October 28, 2005 from West Central Family & Counseling were not authorized by VA. According to the invoice, these services were for a diagnostic consultation. Medical expenses incurred on November 10, 2005 from Hudson Care were also not authorized by VA. These expenses were for certain equipment - a drive deluxe rollator and a walker seat. Because these services were not rendered in a medical emergency, reimbursement is not warranted. Emergency non-VA care was authorized at Cooley Dickinson Hospital from November 21, 2005 to November 23, 2005. The tentative diagnoses were hyponatraemia (low sodium) and hypokalaemia (low potassium). According to the VAMC's records, the veteran was stable for transfer on November 23, 2005. According to notes of a conversation with his case manager, cardiologists recommended a valvular replacement at Baystate Medical Center after a workup at Cooley Dickinson Hospital. It was explained to the case manager that the veteran and his sister (the appellant) should be made aware that the heart surgery would need to be under private insurance if not done at a VA facility. The notes of conversation with Dr. Kupferschmid indicate that the heart valve surgery was elective and not an emergency. The doctor said the veteran wanted to go to Baystate Medical Center and was using his private insurance for this component of his care. At the September 2007 hearing, the appellant explained that that the veteran remained at Cooley Dickinson Hospital for an extensive workup for aortic stenosis. Apparently it was determined that he needed to have several teeth extracted before undergoing heart surgery. The veteran was transferred to Baystate Medical Center on December 3, 2005. Treatment records indicate he was transferred for complete tooth extraction and possible repair of his atrioventricular (AV) valve. He underwent oral surgery n December 10, 2005 by Dr. Fraziero and all remaining of his 15 teeth were removed. The veteran was then evaluated by Dr. Hiser who did not recommend that he undergo heart valve surgery at that time. At the September 2007 hearing, the appellant testified that Medicare did not cover the costs of the dental surgery. The appellate submitted bills from CDPA and Northampton Radiologic Association for expenses incurred while the veteran was at Cooley Dickinson Hospital. VA denied expenses incurred from November 24, 2005 to December 3, 2005. She also submitted bills from CT Valley Oral Surgery Associates, Baystate Medical Education & Research Foundation, Springfield Anesthesia Service, Inc., and Dr. Fraziero, for expenses incurred while the veteran was at Baystate Medical Center from December 3, 2005 to December 20, 2005. These expenses were not authorized by VA and were not rendered in a medical emergency. As mentioned, the evidence indicates that these services were provided in preparation for an elective surgery. VAMC records indicate the veteran was transferred to North Adams Regional Hospital on December 21, 2005 for treatment of pneumonia. Treatment was authorized at North Adams Regional Hospital from December 21, 2005 to December 25, 2005. As mentioned, on December 25, 2005, the veteran was transferred by ambulance from North Adams Regional Hospital to North Adams Commons Nursing Home. The appellant submitted an invoice from North Adams Internists for nursing home visits on December 20, 2005, December 28, 2005, and January 1, 2006. These expenses were not authorized by VA and the evidence does not show that they were rendered in a medical emergency. The appellant is a registered nurse and has some medical expertise that would permit her to give competent testimony as to whether the claimed expenses were incurred for treatment of a medical emergency. Her testimony demonstrates that the care was beneficial and was designed to permit further treatment, but does not show that the care was provided for a medical emergency. Because the evidence does not show that the claimed expenses were incurred for medical emergencies, the claims for reimbursement of certain medical expenses incurred from March 18, 2005 to January 1, 2006 must be denied. The preponderance of the evidence is against the claims-meaning there is no reasonable doubt to resolve in the appellant's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. (CONTINUED ON NEXT PAGE) ORDER The claim for reimbursement for the travel expenses incurred on March 18, April 23, April 29, October 26, December 3, and December 25, 2005, is denied. The claim for reimbursement for the cost of unauthorized private medical expenses incurred on October 28, 2005 from West Central Family & Counseling is denied. The claim for reimbursement for the cost of unauthorized private medical expenses incurred on November 10, 2005 from Hudson Home Health Care is denied. The claim for reimbursement for the cost of unauthorized private medical expenses incurred from November 24, 2005 to December 3, 2005 at Cooley Dickinson Hospital is denied. The claim for reimbursement for the cost of unauthorized private medical expenses incurred from December 3, 2005 to December 20, 2005 at Baystate Medical Center is denied. The claim for reimbursement for the cost of unauthorized private medical expenses incurred on December 20, 2005, December 28, 2005, and January 1, 2006 at North Adams Commons Nursing Home is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs