Citation Nr: 1123532	
Decision Date: 06/21/11    Archive Date: 06/28/11

DOCKET NO.  10-39 099	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Jackson, Mississippi


THE ISSUE

Entitlement to payment or reimbursement of unauthorized medical expenses incurred from November 22 to December 7, 2009.  




ATTORNEY FOR THE BOARD

Tiffany Sykes, Associate Counsel 



INTRODUCTION

The Veteran reportedly served on active duty in the military from October 1960 to April 1965.

This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 decision of the Department of Veterans Affairs Medical Center (VAMC) in Jackson, Mississippi, denying the Veteran's request for payment or reimbursement of unauthorized medical expenses he had incurred during his treatment at a private facility during November and December 2009.

In December 2010, the Veteran submitted an additional bill concerning these medical services in question.  He also submitted a statement intimating that he had contracted a staph infection as a result of contaminated medical supplies distributed at the local VAMC in Jackson (the G.V. Sonny Montgomery VA Hospital).  He also earlier had alleged in his August 2010 substantive appeal (on VA Form 9) that he was unable to have surgery for his congestive heart failure as a result of that staph infection.  Thus, it appears he is alleging entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361.  The regional office (RO) in Jackson, however, as the Agency of Original Jurisdiction (AOJ), has not had an opportunity to consider this additional claim, much less denied it and him responded by appealing this other claim to the Board.  The Board therefore does not have jurisdiction over this other claim, and it consequently is referred to the RO for any appropriate development and consideration.  But the RO first needs to clarify whether he is indeed filing this additional claim and, if he is, ascertain the dates of his treatment at the VAMC during which he purportedly received contaminated medical supplies resulting in a staph infection.



FINDINGS OF FACT

1.  The Veteran has no adjudicated service-connected disabilities.

2.  On November 22, 2009, he had private laboratory testing at the Wesley Medical Center in Hattiesburg.  It was determined that he was suffering from congestive heart failure.  A cardiac catheterization was performed on November 23, 2009, and he was informed that additional surgery was needed for treatment of his coronary artery disease with diminished ventricular function.  

3.  He requested discharge from the Wesley Medical Center and sought treatment, instead, at Forrest General Hospital.  Additional laboratory testing was conducted and he was informed he had a staph infection.  Consequently, his surgery for his congestive heart failure was not performed until April 2010.

4.  His condition, while requiring treatment, was nonemergent such that a delay in obtaining available treatment from VA would have been hazardous to his life or health; nor were the services provided on an emergent basis, as evidenced by the fact that he did not have the surgery until April 2010, so not until over 5 months after receiving the initial diagnoses of congestive heart failure and coronary artery disease.  

5.  VA facilities were feasibly available for the type of treatment he received from November 22, 2009 to December 7, 2009, as illustrated by the numerous statements he has made concerning his prior treatment at VA facilities.


CONCLUSION OF LAW

The criteria are not met for payment or reimbursement of the unauthorized medical expenses incurred from November 22 to December 7, 2009, at Comprehensive RAD Services in Hattiesburg, Mississippi.  38 U.S.C.A. §§ 1703(a), 1725, 1728, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 17.52(a), 17.1000-17.1002 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist are Inapplicable to this Claim

Because this claim is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the laws pertaining to the duties to notify and assist and the implementing regulations are inapplicable to this claim.  See Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004).  The Board nevertheless has reviewed the procedural history of this case to ascertain whether he has had a fair opportunity to present arguments and evidence in support of his claim.  And the Board concludes that deciding this appeal at this time would not be prejudicial to him.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that as the pleading party, the Veteran, not VA, has the burden of proof of showing there is a Veterans Claims Assistance Act (VCAA) notice or assistance error and, moreover, that it is unduly prejudicial - meaning outcome determinative of the claim).  See also 38 C.F.R. § 20.1102 (regarding nonprejudicial, i.e., harmless error).

Normally, upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information or evidence needed to substantiate the claim, including apprising him of whose specific responsibility, his or VA's, it is for obtaining this supporting evidence.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

A letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in April 2010, prior to initially adjudicating his claim in August 2010, so in the preferred sequence.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  The letter duly informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence.

Therefore, he has been provided opportunity to submit evidence and argument in support of his claim and to respond to his notice.  That is say, he has had a meaningful opportunity to participate effectively in the adjudication of his claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

II.  Whether the Veteran is Entitled to Payment or Reimbursement of the Medical Expenses Incurred from November 22 to December 7, 2009

Initially, in adjudicating a claim for payment or reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care at issue.  See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 17.54 (2010).  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 a service member, VA may contract for private hospital care in certain limited circumstances, including cases where a medical emergency exists.

Pursuant to 38 U.S.C.A. § 1703(a) (West 2002), "when [VA] 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: "[h]ospital 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. § 1703(a)(3) (West 2002); 38 C.F.R. § 17.52 (2010).


The admission of a service member to a non-VA hospital at the expense of VA must be authorized in advance.  38 C.F.R. § 17.54 (2010).  See Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also General Counsel Opinion, 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 (2010).

Here, there is no indication or suggestion the Veteran sought and obtained proper authorization for VA payment of the private medical expenses he incurred while at either the Wesley Medical Center or Forrest General Hospital.  Nor do the records indicate that officials at either facility contacted the local VAMC after he presented himself initially on November 22, 2009.  There equally is no indication of prior authorization of payment made to Comprehensive RAD Services for any evaluation or treatment provided there.  Instead, the first time VA was made aware of the treatment at issue was when the VAMC received bills requesting payment, well more than 72 hours after the completion of the treatment.

Accordingly, the Board must conclude that prior authorization was not obtained pursuant to 38 C.F.R. § 17.54 (2010), and that payment is unwarranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. § 1703 (West 2002).

Unauthorized Medical Expenses

When the issue is entitlement to reimbursement for unauthorized medical expenses, as here, there are two potentially applicable statutes, 38 U.S.C.A. § 1725 (the Millennium Act) concerning reimbursement for emergency treatment and 38 U.S.C.A. § 1728 concerning reimbursement of certain medical expenses.  Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability.


The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has stated that one "avenue for potential relief for a Veteran entitled to VA care forced to obtain treatment at a non-VA facility is 38 U.S.C. § 1728, which provides that the Secretary 'may, under such regulations as the Secretary shall prescribe, reimburse 
. . . for the reasonable value of such care or services . . . for which such Veterans have made payment.'"  Malone v. Gober, 10 Vet. App. 539, 541 (1997), quoting 38 U.S.C.A. § 1728(a) (West 2002).

Such reimbursement is available only where (1) such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; (2) such care or services were rendered to a Veteran in need thereof (A) for an adjudicated service-connected disability, (B) for a non-service-connected disability associated with and held to be aggravating a service-connected disability, (C) for any disability of a Veteran who has a total disability permanent in nature from a service- connected disability, or (D) for any illness, injury, or dental condition in the case of a Veteran who (i) is a participant in a vocational rehabilitation program (as defined in section 3101(9) of this title), and (ii) is medically determined to have been in need of care or treatment . . . .; and (3) [VA] or other Federal facilities were not feasibly available, and an attempt to use them beforehand would not have been reasonable, sound, wise, or practical.  38 U.S.C.A. § 1728(a) (West 2002); 38 C.F.R. § 17.120 (2010).  See also Zimick v. West, 11 Vet. App. 45, 49 (1998).

The Court has observed that, given the use by Congress of the conjunctive 'and' in the statute, emphasized in the above quotation, 'all three statutory requirements would have to be met before reimbursement could be authorized.'  Malone, 10 Vet. App. at 542, citing Cotton v. Brown, 7 Vet. App. 325, 327 (1995); Hayes v. Brown, 6 Vet. App. 66 (1993); Zimick v. West, 11 Vet. App. 45, 49 (1998).  That is to say, these criteria are conjunctive, not disjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991).  


The Veterans' Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, 122 Stat. 4123 (2008) amended 38 U.S.C. § 1728(a).  The amendment added § 1728(c), stating that in this section, the term "emergency treatment" has the meaning given such term in section 1725(f)(1) of this title.  The former standard under § 1728(a) was "such care or services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health."  

Under § 1725(f)(1), "emergency treatment" means medical care or services furnished, in the judgment of the Secretary:

(A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; 

(B) when such care or 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 

(C) 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, as further defined by the statute.

Thus, the definition of "emergency treatment" is now the same under 38 U.S.C. § 1728 and § 1725.  Additionally, the amending law did not indicate a specific effective or applicability date for this change, so a discussion of such may be necessary.  38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.  See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003); and VAOPGCPREC 3-2000 (Apr. 10, 2000).

Since the Veteran does not have any adjudicated service-connected disabilities, 38 U.S.C.A. § 1725 (rather than § 1728) is controlling.


Payment or reimbursement for emergency services for nonservice-connected conditions in non-VA facilities that has not been previously authorized may be authorized under 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1000-1008.  Section 1725 was enacted by Congress as part of the Veterans Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1553 (1999).  The provisions of the Act became effective as of May 29, 2000.  To be eligible for reimbursement under this authority the Veteran has to satisfy all of the following criteria:

(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.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 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.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).

38 C.F.R. § 17.1002.  See also 38 U.S.C.A. § 1725.

The Veteran's medical records from the Wesley Medical Center show he presented at the emergency room with complaints of difficulty breathing and feeling weak on November 22, 2009.  Lab tests were conducted and it was determined he had congestive heart failure.  He had cardiac catheterization the following day, so on November 23, 2009.  Thereafter, he sought treatment, instead, at Forrest General Hospital after leaving Wesley Medical Center against medical advice.  This was noted during his consultation on November 24, 2009 by Dr. R.R., and also that the Veteran did not have his medical records.  He continued receiving treatment, including various lab tests and other clinical work up.  And according to the report of a November 28, 2009 infectious disease consultation, 
methicillin-resistant Staphylococcus aureus (MRSA) bacteremia was discovered.

The Veteran's August 2010 VA Form 9 stated that a VA facility had diagnosed him with this staph infection and heart blockages.  However, since he had not received the type of help and care at the VA hospital he needed, he in effect felt he was all but forced to obtain the treatment he needed elsewhere, and at the private facilities noted in particular.

In accordance with the provisions of the § 1725(a), Wesley Medical Center is a facility that provides emergency care to the public.  However, the evidence as a whole is unfavorable to the Veteran's claim since he has to meet all, not just some, of the criteria of this statute - and there are several other requirements (those enumerated).  Since it was learned that he had congestive heart failure, requiring cardiac catheterization, he arguably had the type of exigent situation and circumstances requiring rather immediate medical attention.  But his doctors at the private hospital ultimately did not perform his heart surgery until April 2010, so not until more than 5 months after he had first sought treatment at the Wesley Medical Center.  So even they did not deem that surgery of such an emergent nature that he could not wait that long for it.  Moreover, their delay in providing that surgery tends to go against the notion that his VA doctors, who reportedly already had diagnosed the staph infection and heart blockages due to his coronary artery disease, did not exercise the degree of due diligence in providing him the type of care and treatment he needed on an emergent basis.

Indeed, even had he been admitted for hospitalization on an emergent basis at any point from November 22 to December 7, he could have received a transfer to a VAMC for any necessary additional treatment or care.  However, he chose instead to use the services of his own medical doctor.  His doctor did not admit him and scheduled his surgery for more than 5 months later, regardless of any other medical issues, such as a staph infection.  The Veteran was certainly free to make this election of private treatment in lieu of VA treatment, or even in lieu of the treatment he had received at the private facility he initially consulted, but he cannot then expect VA to make payment or reimburse him for the medical expenses he resultantly incurs because he made that choice of his own free will.

Regarding feasible availability of VA care, the Veteran stated in his August 2010 VA Form 9 that he chose to leave the Wesley Medical Center to receive treatment from his own doctor at Forrest General Hospital, against medical advice.  So even if his initial treatment at Wesley Medical Center could be considered emergent, his subsequent decision to seek treatment from his private physician at another private facility - Forrest General Hospital, as opposed to at a VA facility, is counter intuitive to concluding a VA facility was not feasibly available.  Rather, this chain of events tends to suggest that he simply did not prefer to be treated at the VAMC, as opposed to by his private doctor, not that the local VAMC was not capable of providing the type of care he needed or even would not have within the time frame necessary.

The Board also realizes the Veteran is financially liable to Comprehensive RAD Services for his treatment.  But, again, he has to satisfy all of the requirements for payment or reimbursement under 38 U.S.C.A. § 1725 (the Millennium Act), and he clearly does not.  


Because the Veteran fails to meet the criteria required under 38 U.S.C.A. § 1725 and 38 C.F.R. § 17.1002, reimbursement or payment for any amount in question is prohibited.  While the Board empathizes with him, it is bound by the law, and its decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be inequitable.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No [in]equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).


ORDER

The claim for payment or reimbursement of the unauthorized medical expenses incurred from November 22 to December 7, 2009 is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs