Citation Nr: 1200190 Decision Date: 01/04/12 Archive Date: 01/13/12 DOCKET NO. 10-02 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Bay Pines, Florida THE ISSUE Entitlement to payment or reimbursement for the cost of unauthorized medical services rendered at Gulf Coast Medical Center from April 6, 2009 to April 7, 2009. REPRESENTATION Appellant represented by: Florida Department of Veterans Services ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Department of Veterans Affairs (VA) Medical Center (MC) located in Bay Pines, Florida, which approved payment for unauthorized inpatient services provided by Gulf Coast Medical Center from April 4 to April 5, 2009, and denied payment for services rendered from April 6 to April 7, 2009. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran has no service-connected disabilities. 3. The Veteran's condition had stabilized as of April 5, 2009 to the point where he could have been transferred to a VA facility for further care. CONCLUSION OF LAW The criteria for reimbursement of unauthorized non-VA medical expenses incurred from April 6, 2009 to April 7, 2009 are not met. 38 U.S.C.A. §§ 503, 1703, 1725, 1728, 1750, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 17.52, 17.53, 17.54, 17.120, 17.121, 17.1000-1008 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, to be entitled to payment of or reimbursement for private medical expenses not previously authorized, a claimant must satisfy the conditions outlined by 38 U.S.C.A. § 1728 or 38 U.S.C.A. § 1725 and the implementing regulations. Under 38 U.S.C.A. § 1728 and implementing regulations, reimbursement of unauthorized medical expenses 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; and (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 an adjudicated 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 participating in a vocational rehabilitation program as defined in 38 U.S.C.A. § 3101(9), and (ii) is medically determined to have been in need of such care or services; and (3) VA or other Federal facilities were not feasibly available, and an attempt to use them beforehand or to obtain prior VA authorization for the required services 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. All of these statutory requirements must be met before payment may be authorized. See Hayes v. Brown, 6 Vet. App. 66, 68 (1993). In this case, because the Veteran does not have any service-connected disabilities and was not participating in a vocational rehabilitation program, he is not entitled to reimbursement for his unauthorized treatment under 38 U.S.C.A. § 1728(a), 38 C.F.R. § 17.120. To be eligible for payment of or reimbursement for emergency services for non-service connected conditions in non-VA facilities under 38 U.S.C.A. § 1725 and the implementing regulations (38 C.F.R. §§ 17.1000-1008), the veteran must 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 such provider beforehand 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 discharged or 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. 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. 1728 for the emergency treatment provided. 38 C.F.R. § 17.1002. In this case, treatment records from Gulf Coast Medical Center (GCMC) show that the Veteran was admitted on April 4, 2009 for an acute myocardial infarction where he underwent a thrombectomy, angioplasty, and stent placement. Records show that he was comfortable and able to be transferred to the medical progressive care unit on April 5, 2009. His condition was noted as stable on April 6, 2009. In October 2009, A.S.H., MD, CMO of the VA Fee Basis Program, reviewed the Veteran's medical records and opined that the Veteran's condition was emergent from April 4, 2009 to April 5, 2009 but that his condition had stabilized on April 5, 2009 to the point where he could have been transferred to a VA facility for further care. Specifically, he noted that the Veteran's cardiac rhythm strips and blood pressure were completely stable on April 5, 2009. Based upon a review of the evidence, the Board finds that the Veteran condition had stabilized to the point where he could have been transferred to a VA facility on April 5, 2009. The Board acknowledges the Veteran's argument that he was not able to leave GCMC due to immobilization with tubes, IVs and a heart monitor. However, while he could not have transferred himself, ambulatory care could have affected a successful transfer to VA facilities. It is important for the Veteran to understand that the basis the VA can pay for such services is very limited where the disability has no connection with service, as in this case. In summary, based on the undisputed evidence, the Veteran does not meet the criteria for entitlement to payment or reimbursement of medical expenses not previously authorized that were incurred for treatment at GCMC from April 6 to April 7, 2009, under applicable statutes and regulations. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, with implementing regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326), VA has specific duties to notify and assist claimants in the development of claims. Because the claim in this case is governed by the provisions of Chapter 71 of Title 38 of the United States Code, the VCAA and its implementing regulations are not applicable. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). Notwithstanding the fact that the VCAA is not controlling in these matters, the Board has reviewed the case for purposes of ascertaining that the Veteran has had a fair opportunity to present arguments and evidence in support of his claim for reimbursement of medical expenses. In short, the Board concludes from that review that the requirements for the fair development of the appeal have been met in this case. Every possible avenue of assistance has been explored, and the Veteran has had ample notice of what might be required or helpful to his case. For example, the Veteran was provided a VCAA letter in November 2009 informing him of VA's duties and the November 2009 statement of the case provided him with the governing laws and regulations, as well as the basis for the denial of his claim. The Veteran was provided several opportunities to provide pertinent evidence in support of his claim. In addition, he was offered an opportunity to present testimony before the Board but he failed to appear at his scheduled hearing. Further development and expending of VA's resources is not warranted. The Board's decision to proceed in adjudicating this claim does not therefore prejudice the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Entitlement to payment or reimbursement for the cost of unauthorized medical services rendered at Gulf Coast Medical Center from April 6, 2009 to April 7, 2009 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs