Citation Nr: 1009455 Decision Date: 03/12/10 Archive Date: 03/17/10 DOCKET NO. 09-25 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Canandaigua, New York THE ISSUE Entitlement to reimbursement for, or payment of, unauthorized medical expenses for treatment incurred from April 16, 2008, through April 18, 2008, at Crouse Hospital in Syracuse, New York. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from September 1950 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 administrative decision of the Department of Veterans Affairs (VA) Medical Center (MC) in Canandaigua, New York. In October 2009, the Veteran submitted additional evidence in support of his claim, which was received after the issuance of the statement of the case. The Veteran indicated that he wished to waive local jurisdiction review and requested that the evidence be forwarded to the Board. Based upon the Veteran's request, the Board will review the forwarded material in the first instance as a result of receipt of the appropriate waiver. FINDINGS OF FACT 1. The Veteran received unauthorized medical care at Crouse Hospital for chest pain/heart disease from April 16, 2008, to April 18, 2008. 2. The evidence of record reflects that the Veteran had no service-connected disabilities at the time of the unauthorized medical care. 3. Medical care received during this period was rendered 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. 4. A VA facility was not feasibly available at the time the Veteran received treatment at Crouse Hospital from April 16, 2008, through April 18, 2008. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses for treatment for chest pain/heart disease at Crouse Hospital from April 16, 2008, through April 18, 2008, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38 C.F.R. §§ 17.120, 17.1000-1008 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has filed a claim for payment or reimbursement for the cost of unauthorized private medical expenses incurred at Crouse Hospital from April 16, 2008, through April 18, 2008. Generally, the admission of a veteran to a non-VA hospital at VA expense must be authorized in advance. See 38 C.F.R. § 17.54 (2009). A veteran may obtain reimbursement for such unauthorized expenses under either 38 U.S.C.A. § 1725 or 38 U.S.C.A. § 1728. Reimbursement pursuant to 38 U.S.C.A. § 1728 requires, among other things, either that the treatment have been related to a service-connected disability or that the veteran be a participant in a rehabilitation program under 38 U.S.C.A. ch. 31. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120. The evidence does not show, and the Veteran does not contend, that either of these conditions applies. The Board, therefore, will consider the Veteran's claim pursuant to 38 U.S.C.A. § 1725 only. The criteria set forth in 38 U.S.C.A. § 1725 provide general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-VA facility for those veterans who are active VA health-care participants (enrolled in the annual patient enrollment system and recipients of VA hospital, nursing home, or domiciliary care under such system within the last 24-month period) and who are personally liable for such treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002. Section 1725 was enacted as part of the Veterans Millennium Health Care and Benefits Act, Public Law 106-177. The provisions of the Act became effective as of May 29, 2000. 'Emergency treatment' under the statute is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the veteran can be transferred safely to a VA or other Federal facility (the medical emergency lasts only until the veteran becomes stabilized). 38 U.S.C.A. § 1725(f)(1); 38 C.F.R. § 17.1002. An example of when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable is when a veteran is brought to a hospital in an ambulance and the ambulance personnel determines that the nearest available appropriate level of care is at a non-VA medical center. See 38 C.F.R. § 17.1002(c). In order to obtain reimbursement for non-VA emergency services furnished to a veteran for non-service-connected conditions, all of the criteria in § 1725 and its implementing regulations, C.F.R. §§ 17.100-17.1008, 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 transferred to a VA or other Federal facility; (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). See 38 C.F.R. § 17.1002 (2009). Where there is an approximate balance of positive and negative evidence in regard to a material issue, VA must give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). In an August 2008 administrative decision, the Canandaigua VAMC denied entitlement to VA payment of medical services provided at Crouse Hospital from April 16 to April 18, 2008. This decision was based on the VAMC's determination that "VA facilities were feasibly available." As a result of this finding, no portion of the Veteran's hospitalization was approved for reimbursement. Primarily at issue in this case are the third and fourth elements of 38 U.S.C.A. § 1725, as the remainder of the criteria appear to have clearly been met. The Board notes that the second element of 38 U.S.C.A. § 1725 is clearly met, as the circumstances surrounding the Veteran's hospitalization, described in more detail below, are such that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. The third criteria require that 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. It is noted that these conditions are satisfied 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. In the case at hand, the record reflects that the Veteran was taken by paramedics to Crouse Hospital on April 16, 2008. According to hospital records, the Veteran was at home watching television when he began to experience chest pains, as if someone was punching him in the center of the chest. He had severe constant chest pain with no radiation and no shortness of breath. Paramedics were called and the Veteran was placed in the ambulance and driven to Crouse Hospital. The pre-hospital report indicates that the paramedics called Crouse Hospital to advise them of the situation while en route. Upon his arrival, the Veteran was admitted to the hospital, started on Lovenox, and treated as if he had acute coronary syndrome. A myocardial infarction was subsequently ruled out and the Veteran underwent a cardiac catheterization on April 17, 2008. The Veteran was found to have non-obstructive coronary artery disease. He was discharged to home on April 18, 2008, with follow-up directed to the VA Medical Center, Team Red. The Veteran has indicated that he requested that the ambulance take him to the VA hospital and that the ambulance driver refused to take him there telling him that VA had refused him. In his May 2009 substantive appeal, the Veteran, in a statement prepared by his daughter, indicated that the decision to take the him to Crouse Hospital was not made by him. He stated that he was told by the ambulance driver that he had to be transferred to Crouse Hospital because VA had refused to take him. He noted that he was in an ambulance suffering from chest pain and was not in any position to ask for proof of refusal. The Veteran stated that VA refused him for reasons unknown and that he was not going to dispute it at that time. He indicated that VA should accept responsibility as they had refused to accept the ambulance that was transporting him. In an October 2009 statement, prepared by the Veteran's daughter on behalf of the Veteran, it was indicated that the East Area Volunteer Emergency Services (EAVES) team transported the Veteran to the hospital on April 16, 2008. It was noted that according to the EAVES team, there were certain services that could not be provided by the VA hospital in Syracuse, so they had been instructed by VA to take patients that had symptoms of either stroke or acute coronary syndrome and had ST elevations on the EKG to one of two area hospitals, Crouse being one of them. It was noted that as evidenced by the report submitted with the letter, the Veteran had the necessary symptoms and therefore EAVES transported him to Crouse Hospital. This resulted in a $1,798.00 bill which for which VA was denying payment. Based upon the above, the Veteran's health situation could clearly be described as emergent. The Board notes that the VA Chief of Medical Staff denied the Veteran's claim for unreimbursed medical expenses on the basis that VA medical facilities were available as there were no diversions. However, the Board notes that the Veteran has indicated that he initially requested that he be transported to VA but was told that VA had refused his request. The Board further observes that the Veteran's daughter has indicated that if patients were having certain types of symptoms, such as the Veteran was having, then EAVES had been instructed by VA to take the patients to one of two private hospitals, one being Crouse Hospital. The Veteran's statements are bolstered by the pre-hospital report indicating that the ambulance driver had contacted Crouse Hospital to advise them of the veteran's situation while en route. Moreover, the Board notes that based upon the Veteran's health situation, he was not in a position to argue about where he should be taken. It was ultimately the paramedics' decision to bring the Veteran to Crouse Hospital. The Board finds that these circumstances satisfy the third element under 38 U.S.C.A. § 1725 at the time of the Veteran's initial admission to Crouse Hospital on April 16, 2008. The Board further finds that the actions taken by the Crouse Hospital subsequent to admission, including the Veteran being given a dose of Lovenox and loaded on Plavix and subsequently undergoing a cardiac catheterization which revealed nonobstructive coronary artery disease, were part of the initial emergent medical care, or, in the alternative, were of continued medical emergency of such a nature that the Veteran could not have been safely transferred to a VA or other Federal facility. The veteran was subsequently released on April 18, 2008. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that reimbursement for medical treatment received from April 16, 2008, through April 18, 2008, is granted, under the provisions of 38 U.S.C.A. § 1725. See 38 U.S.C.A. § 5107(b). Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that records on file are sufficient to resolve the matter in the Veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken above. ORDER Entitlement to reimbursement for, or payment of, unauthorized medical expenses for treatment incurred from April 16, 2008, through April 18, 2008, at Crouse Hospital is granted. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs