Citation Nr: 1116640 Decision Date: 04/28/11 Archive Date: 06/14/11 Citation Nr: 1116640 Decision Date: 04/28/11 Archive Date: 05/05/11 DOCKET NO. 08-18 655 ) DATE APR 28 2011 ) ) On appeal from the Department of Veterans Affairs Medical Center in Charleston, South Carolina THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of medical treatment received between July 1, 2006 and July 31, 2006 at Memorial Health University Medical Center. REPRESENTATION Appellant represented by: Rick Hoel, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active service from August 1962 to August 1965; he died in November 2006. The appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of December 2006 issued by the Department of Veterans Affairs Medical Center (VAMC) in Charleston, South Carolina. The appellant requested to appear for a personal hearing before a Veterans Law Judge sitting at the RO. A hearing was scheduled and the appellant did not report to the hearing. The Board issued a decision in September 2010 denying the claim. VACATUR VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2010). Here, the appellant requested to appear for a personal hearing before a Veterans Law Judge sitting at the RO in to present testimony in support of her claim. At the time of the Board's September 2010 decision, it appeared that the appellant failed to report to her scheduled hearing; however, after the decision was issued, the appellant explained that she did not report to the scheduled hearing because she never received notice of the time and place of the hearing. There is nothing in the claims file to suggest that the appellant ever received the notice and there is no reason to doubt the appellant's credibility in this regard. As such, the appellant's was not provided due process under the law and the Board's decision of September 2010 must be vacated. Accordingly, in order to prevent prejudice to the appellant, the September 2010 decision of the Board must be vacated in its entirety, and a new decision will be entered as if the September 2010 decision by the Board had never been issued. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks payment or reimbursement of unauthorized, non-VA medical expenses incurred by the Veteran between July 1, 2006 and July 31, 2006 for care claimed as emergent medical treatment at Memorial Health University Medical Center. The appellant requested to appear for a personal hearing before a Veterans Law Judge sitting at the RO. A hearing was subsequently scheduled, but neither the appellant nor her representative received notice of the scheduled hearing. As they had no knowledge of the scheduled hearing, the appellant failed to report. The appellant explained that she would have appeared for the hearing but for a failure of the RO to adequately notify her of the time and place of the hearing. As such, another hearing should be scheduled to provide the appellant an opportunity to present testimony in support of her claim on appeal. Pursuant to 38 C.F.R. § 20.700(a), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. The appellant is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if she so chooses. 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700. As such, the case is remanded for the appellant to be scheduled for a personal hearing at the RO before a Veterans Law Judge. Before scheduling the hearing, the RO should notify the appellant of her option to participate in a video conference hearing in lieu of a personal hearing. In addition, it is noted that the original file sent to the Board cannot be located, and has been rebuilt, to the extent possible. Attempts should be made to locate the original file and the appellant and her representative should be asked to provide copies if pertinent records in their possession that could substantiate her claim. Accordingly, the case is REMANDED for the following action: 1. Attempt to locate the duplicate combined health record, and document such efforts in the file. If such is not found, attempt to obtain copies of all records that are available in the medical center's paper and electronic records pertaining to this appeal. If necessary, request private medical records pertaining to the claim, provided that the appellant provides any necessary authorization forms. 2. Contact the appellant and her representative and request that they provide copies of any pertinent documents in their possession pertaining to the claim, that were either provided by them to VA or that VA sent to them, given that the appellant's file has been rebuilt. 3. Notify the appellant of her option to appear for a video conference hearing in lieu of an in-person hearing before a Veterans Law Judge at the RO. Then, appropriately schedule the appellant for the hearing before a Veterans Law Judge, either at the RO or via video-conference per the appellant's request. The RO should notify the appellant, at the correct address of record, and her representative of the date, time and place of the hearing. After the hearing is conducted, or in the event the appellant withdraws her hearing request or fails to report for the hearing, the claims file should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ S. S. TOTH 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) (2010). Citation Nr: 1034521 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 08-18 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Charleston, South Carolina THE ISSUE Entitlement to payment or reimbursement for unauthorized medical expenses incurred as a result of medical treatment received between July 1, 2006 and July 31, 2006 at Memorial Health University Medical Center. REPRESENTATION Appellant represented by: Rick Hoel, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active service from August 1962 to August 1965; he died in November 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an administrative decision of December 2006 issued by the Department of Veterans Affairs (VA), VA Medical Center, in Charleston, South Carolina. The appellant was scheduled to appear for a personal hearing before a Veterans Law Judge sitting at the RO. The appellant failed to report to the hearing and has not provided good cause for such failure to report. As such, the appellant's request for a personal hearing before a Veterans Law Judge is therefore deemed withdrawn. FINDINGS OF FACT 1. The Veteran's sole service-connected disability is that of flat feet, rated as 10 percent disabling prior to his death. 2. Between July 1 2006 and July 31, 2006, the Veteran received radiation therapy for metastatic melanoma brain tumors at Memorial Health University Medical Center, a non-VA hospital. 3. The medical care sought between July 1, 2006 and July 31, 2006, was not for an emergent 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. The evidence of record does not show that VA facilities were not feasibly available for radiation therapy between July 1, 2006 and July 31, 2006. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized, non-VA medical expenses incurred between July 1, 2006 and July 31, 2006 are not met. 38 U.S.C.A. §1725 (West 2002); 38 C.F.R. §§ 17.120, 17.121, 17.1000-17.1002 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). That notwithstanding, the VAMC sent a letter to the appellant in February 2008 explaining to her the basis for the finding that the medical expenses incurred between July 1 and July 31, 2006, were not covered by VA. The appellant has been afforded the opportunity to present information and evidence in support of the claim. As indicated, she was afforded an opportunity to appear for a personal hearing, but failed to appear. These actions satisfy any duties to notify and assist owed the appellant in the development of her claim. The appellant maintains that reimbursement for unauthorized medical expenses is warranted for medical expenses incurred as a result of emergency medical treatment during the period from July 1 through July 31, 2006 at Memorial Health University Medical Center. The Veteran died in November 2006 of metastatic melanoma of the brain. During the Veteran's lifetime, service connection had been established for flat feet with a 10 percent rating assigned at the time of his death. According to the appellant, the following chain of events took place: in November 2004, the Veteran underwent surgery to remove melanoma. Some lymph nodes were also removed and contained no cancer cells. In March 2005, the Veteran began utilizing the VA health care system. He went for regular dermatology checks within the VA system in Oakwood and Atlanta Georgia in July, August and November 2005, as well as in March 2006. On May 17, 2006, the Veteran became completely disoriented and was transported by ambulance to the nearest emergency facility. The appellant told the paramedics to take the Veteran to a VA facility, but the paramedics said that the situation was too emergent and there was no VA hospital in Savannah. The Veteran was therefore transported to a private facility on May 17, 2006. The following day, the family contacted VA in Atlanta to report the situation and inquire as to where to send the Veteran for VA care. According to the appellant, the family was told that the expenses for the Veteran to be treated at a private hospital would be covered by VA because there was no VA hospital in Savannah. The appellant's family was also assured that the ER visit would also be covered because there was no VA ER in Savannah. On May 19, 2006, the Veteran was diagnosed with three metastatic melanoma brain tumors and radiation was started. The doctors told the family that radiation had to start immediately because of the poor prognosis; without immediate radiation treatment, the Veteran would be dead within two weeks. On May 22, 2006, the appellant once again contacted the VA in Atlanta. The appellant maintains this was the next possible day to contact the VA because it was the first business day following the news regarding the Veteran's poor prognosis and need for immediate radiation. The appellant was unable to reach the Veteran's VA physician and left a message on his voice mail. The appellant noted that the family had moved to their current location on May 1 and were still within the allotted 30-day window of notification after relocation. The appellant's family waited for instructions from VA as to where to transport the Veteran for treatment. On May 26, 2006, the VA doctor returned the appellant's call and informed the appellant that due to their move, they were out of the Atlanta VA system, and had to contact the Charleston VA system. The VA doctor advised the family to take the Veteran to the VA Urgent Care clinic in Charleston. It is apparent that the Veteran was subsequently discharged from Memorial, as the appellant noted that she and the Veteran drove to the Charleston clinic. According to the appellant, it took over three hours to drive to the Charleston clinic and at the time of arrival, the Veteran was too weak to walk into the clinic without the assistance of a wheelchair. The doctor at the Charleston clinic told the family that the Veteran was too weak to travel back and forth to the Charleston clinic for treatment. He advised the family to return to the private hospital in Savannah for treatment. Per the doctor's instructions, the Veteran returned to the private facility for radiation treatment. According to the appellant, the Veteran subsequently began receiving radiation treatments in Savannah in June 2006. It is unclear whether these treatments were received at a VA facility or at a private facility. The record reflects that the Veteran was thereafter admitted to Memorial Health University Medical Center for additional radiation treatment during the month of July 2006. The Veteran was treated between July 1 to July 31, 2006. The expenses incurred as a result of treatment received during this admission were not reimbursed by VA. On November 22, 2006, the date of the Veteran's death, he received emergency transportation and treatment through private facilities. According to the record, the unauthorized expenses incurred as a result of this transportation and treatment on November 22, 2006, as well as the expenses incurred from May 17 to May 19, 2006 were reimbursed by VA. The expenses incurred as a result of the radiation treatment received in July 2006 were not reimbursed, and the appellant maintains that (1) VA personnel assured her that such expenses would be covered; and, (2) that such expenses were 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. Payment or reimbursement for emergency services for non service- connected conditions in non-VA facilities may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000- 1008. 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. To be eligible for reimbursement under this authority the appellant 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 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; (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 veterans, primarily those who receive emergency treatment for a service-connected disability). See 38 C.F.R. § 17.1002 (2009). These criteria are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The provisions of 38 U.S.C.A. § 1725 reflect a legislative change in that statute, effective October 10, 2008. Specifically, the change of interest is that the word "shall" in the first sentence, replaced the word "may." This made the payment or reimbursement by VA of treatment non-discretionary, if the Veteran satisfied the requirements for such payment. That is, under the version of § 1725 in effect prior to October 10, 2008, payment of such medical expenses was not mandatory even if all conditions for the payment were met. Under both versions, the conditions set out in the remainder of the statute must be met in order for VA to make payment or reimbursement. Under both the former and revised versions of § 1725, the definition of the term "emergency treatment" was and is defined as 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. 38 U.S.C.A. § 1725(f)(1)(B). A revision was made to § 1725 as to how long emergency treatment continued, once the definition of "emergency treatment" was met. Under the former version, treatment is considered emergent until the Veteran is transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer. Under the revised version, "emergency treatment" is continued until such time as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) such time as a Department facility or other Federal facility accepts such transfer if--(I) at the time the Veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and (II) the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. The regulations do not require that a Veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement. Rather, it need be demonstrated only that the initial evaluation and treatment was 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, that is, placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. 38 C.F.R. § 17.1002(b); see also, Swinney v. Shinseki, 23 Vet. App. 257, 267 (2009). In the present case, the Veteran is not seeking prospective relief by way of the payment of monthly disability compensation payments, but rather is seeking reimbursement for a debt or financial obligation previously incurred in July 2006. Thus, the regulatory change should not be applied retroactively, and will apply the definition of "emergency treatment" in effect prior to October 10, 2008. In the present case, the appellant was reimbursed for the emergent care costs associated with the treatment received in May 2006, up until the time that the Veteran's condition stabilized. Although not entirely clear from the record before the Board, it appears that the Veteran was discharged from the hospital at some point between May 22 and May 26, 2006, according to the narrative provided by the appellant. The mere fact that the Veteran was discharged from the hospital and drove by car, and not ambulance, to another facility to seek treatment is evidence that any prior emergent condition had stabilized to a point where payment for unauthorized medical expenses would not be warranted. According to the record, payment was received for expenses incurred between May 17 and May 19, 2006. Next, according to the appellant, the Veteran received additional outpatient treatment in June 2006, prior to his admission on July 1, 2006. There is absolutely no indication, however, that his admission to Memorial Health University Medical Center on July 1, 2006 was for an emergent condition within the meaning of the statute. In other words, the record does not reflect, nor has the appellant asserted, that the Veteran's admission on July 1, 2006 was due to a condition of such an emergent nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. Certainly the Veteran's admission on May 17, 2006 met this criteria; however the admission on July 1, 2006 does not. The record merely shows that the Veteran received radiation therapy between July 1, 2006 and July 31, 2006. Moreover, the claim was also denied because it was determined that VA facilities were feasibly available. In addition, the evidence does not show that emergency services were provided in the hospital emergency department at any point in July 2006. Thus the appellant's claim fails because at least two of the criteria of 38 U.S.C.A. § 1725 are not met. First, the condition for which the Veteran was admitted to the private hospital on July 1, 2006 was not shown to be emergent within the meaning of the statute, and secondly, VA facilities were feasibly available. Also, the evidence does not show that emergency treatment was provided in the hospital emergency department. In addition, there is no showing that emergency treatment was required for his service-connected condition or that the condition was associated with or aggravating his service-connected disorder of the feet and therefore application of 38 U.S.C.A. § 1728 is not warranted. Furthermore, although the appellant asserts that she was told by a VA physician in May 2006 that he should receive his care at the private facility, there is no indication that the treatments provided at a private facility in July 2006 were pre-authorized by VA as contemplated by 38 C.F.R. § 17.54 (admission to a non-VA hospital at VA expense must be authorized in advance or in an emergency situation an application must generally be made within 72 hours of admission). Instead, the record shows that VA facilities were feasibly available to provide care. As such, the criteria for reimbursement or payment of unauthorized medical expenses for radiation treatment incurred between July 1 and July 31, 2006 at Memorial Health University Medical Center is not warranted. The Board is mindful of the fact that a lack of radiation therapy between July 1 and July 31, 2006 could have reasonably be expected to lead to an accelerated death; however, the type of emergency contemplated by the statute is one that would reasonably be expected to lead to immediate death if not treated immediately. The evidence in this case does not reflect that the Veteran's condition on July 1, 2006 was of such an emergent nature that a delay in seeking immediate medical attention would have been hazardous to life or health. There is no medical evidence in the file to support such a finding. It is unfortunate that the appellant was misinformed about the laws governing reimbursement or payment of unauthorized medical expenses. To some extent, the appellant appears to be raising an argument couched in equity. While sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. ORDER Payment or reimbursement for unauthorized medical expenses incurred as a result of medical treatment received between July 1, 2006 and July 31, 2006 at Memorial Health University Medical Center is denied. _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs