Citation Nr: 1123333	
Decision Date: 06/20/11    Archive Date: 06/28/11

DOCKET NO.  04-15 455	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Overton Brooks Medical Center in 
Shreveport, Louisiana


THE ISSUE

Entitlement to payment or reimbursement for medical services provided by Lincoln General Hospital from February 18, 2007, to February 23, 2007.  

(The issues of entitlement to service connection for a heart disorder, to include hypertension, including as secondary to service-connected type II diabetes mellitus (DM); for peripheral vascular disease (PVD) as secondary to service-connected DM; for diabetic retinopathy as secondary to service-connected DM;  for a skin disorder as secondary to service-connected DM; for a lung disorder as secondary to service-connected DM; as well as entitlement to an initial rating in excess of 20 percent for DM and entitlement to an initial rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD), depressive disorder are the subject of a separate Board decision).


REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from August 1969 to August 1971.  He served in Vietnam.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Overton Brooks Medical Center in Shreveport, Louisiana. 


FINDINGS OF FACT

1.  The Veteran received medical treatment at Lincoln General Hospital from February 18, 2007, to February 23, 2007, for a medical emergency.

2.  VA payment or reimbursement of the costs of the private medical care provided at Lincoln General Hospital from February 18, 2007, to February 23, 2007, was not authorized prior to the Veteran's undergoing that treatment and an application was not made to VA within 72 hours after the hour of admission for authorization.

3.  The Veteran has been awarded compensation for septal infarct and the claim was pending effective prior to the date of the services rendered at Lincoln General Hospital from February 18, 2007, to February 23, 2007.

4.  When the Veteran was seen at Lincoln General Hospital from February 18, 2007, to February 23, 2007; no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable.

CONCLUSION OF LAW

Payment or reimbursement for medical expenses incurred at Lincoln General Hospital from February 18, 2007 to February 23, 2007, is warranted. 38 U.S.C.A. § 1728 (West 2002 & Supp. 2010); 38 C.F.R. § 17.120 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  The Veteran's claim is being granted.  As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.

The Veteran was hospitalized at Lincoln General Hospital from February 18, 2007, to February 23, 2007, after having a syncopal episode, falling, and striking his head.  Cardiovascular testing and evaluation were performed during the hospitalization.  The discharge diagnoses were: syncopal episode, long history of cardiovascular risks, hypertension, diabetes, hypercholesterolemia, remote tobacco abuse, positive family history for cardiovascular disease, and sudden onset documented atrial fibrillation with some fairly well controlled ventricular heart rate, however, coincides with the above syncopal episode which both resolved spontaneously.  The clinical records further reflect that there were findings on his electrocardiogram of a prior septal infarct.  

The Veteran is service-connected for PTSD, DM, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction.  In a separate Board decision, service connection has also been granted for a septal infarct and the claim was pending prior to the February 18, 2007, to February 23, 2007, hospitalization dates.  

While the AOJ considered the Veteran's claim under the Millennium Bill, it must first be determined whether the Veteran is eligible for reimbursement under 38 U.S.C.A. § 1728.  See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002(i).  There is no prejudice in the Board making this determination, as the claim is being granted.

Initially, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical services.  See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54.  This is a factual, not a medical, determination.  See Similes v. Brown, 5 Vet. App. 555 (1994).

The law provides that, in connection with its statutory obligation to provide medical services to Veterans, VA may contract for private care in certain limited circumstances, including cases where a medical emergency exists.

Pursuant to 38 U.S.C.A. § 1703(a), "When Department [of Veterans Affairs] facilities are not capable of furnishing . . . the care or services required, the Secretary, as authorized in [38 U.S.C.A. § 1710 or 1712], may contract with non-Department facilities in order to furnish" certain care, including: "Hospital care or medical services for the treatment of medical emergencies which pose a serious threat to the life or health of a Veteran receiving medical services in a Department facility . . . until such time following the furnishing of care in the non-Department facility as the Veteran can be safely transferred to a Department facility."  38 U.S.C.A § 1703(a)(3); 38 C.F.R. § 17.52.

Non-VA treatment at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also VAOPGCCONCL 1-95, at 9 (Mar. 31, 1995) ("Authorization in advance is essential to any determination as to whether the Department is or is not going to furnish the contract care.").  In the case of an emergency that existed at the time of admission, an authorization may be deemed a prior authorization if an application is made to VA within 72 hours after the hour of admission.  38 C.F.R. § 17.54.

Under the provisions of 38 C.F.R. § 17.52(a), VA may contract with non-VA facilities for care in accordance with the provisions of this section when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required.  When demand is only for infrequent use, individual authorizations may be used.  Normally, however, such care in public or private facilities will only be authorized, whether under a contract or an individual authorization, under the specific circumstances delineated in 38 C.F.R. § 17.52(a) which include treatment for a disability of a Veteran with a permanent and total rating.

In this case, the record reflects that there was no advance authorization for payment of the private medical expense incurred at Lincoln General Hospital from February 18, 2007, to February 23, 2007.  After receiving the private treatment, the Veteran did not make an application to VA within 72 hours after the hour of admission for authorization.  Therefore, there was no preauthorization and no record of application made to VA within 72 hours after the hour of admission to the private facility.  38 C.F.R. § 17.54.

Thus, there is no evidence that the Veteran obtained proper authorization for payment of the private medical expenses provided by Lincoln General Hospital from February 18, 2007 to February 23, 2007.  Accordingly, the Board must conclude that prior authorization was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with the private treatment under 38 U.S.C.A. § 1703.

Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728.

Generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that three criteria are met: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice- connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. 
§ 17.47(i) (formerly § 17.48(j)) (2000); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.  See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998).

As noted, the Veteran is service-connected for septal infarct.  The treatment rendered included cardiac testing and treatment.  Thus, criterion (a) is met.

The treatment rendered at Lincoln General Hospital from February 18, 2007, to February 23, 2007, was provided on an emergent basis as the Veteran had a syncopal episode, lost consciousness, fell and struck his head, and did not know if he was having a stroke, heart attack, or other serious medical problem.  The Board is satisfied that his situation was emergent in nature; thus criterion (b) is met.  

Further, no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable.  The private hospital was about 10 minutes away while the VA hospital was over 75 minutes away.  As such, the delay that would have been necessary to seek VA treatment would not have been prudent in this case given the emergency at hand.  Thus, criterion (c) is met.  

Accordingly, the three enumerated criteria have been met for entitlement to payment or reimbursement for unauthorized medical services provided at Lincoln General Hospital from February 18, 2007, to February 23, 2007.  Therefore, since the criteria under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 have been met, the claim for reimbursement is granted.


ORDER

Payment or reimbursement for medical expenses incurred at Lincoln General Hospital from February 18, 2007, to February 23, 2007, is granted.



____________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs