Citation Nr: 1215656 Decision Date: 05/01/12 Archive Date: 05/10/12 DOCKET NO. 09-38 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee THE ISSUE Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Johnson City Medical Center from September 18, 2008, to September 27, 2008. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from March 1953 to September 1954. The Veteran died in October 2008. The Appellant is his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 determination of the Mountain Home, Tennessee, Department of Veterans Affairs (VA) Medical Center (VAMC) which denied payment or reimbursement of unauthorized medical expenses incurred at Johnson City Medical Center from September 16, 2008, to September 27, 2008. In February 2009, the VAMC granted payment of unauthorized medical expenses incurred at Johnson City Medical Center from September 16, 2008, to September 17, 2008. In March 2010, the Appellant submitted a Motion to Advance on the Docket. In April 2010, the Board granted the Appellant's motion. In May 2010, the Board remanded the Appellant's claim to the VAMC for additional action. In February 2011, the Board again remanded the Appellant's claim to the VAMC for additional action. This development has been accomplished; and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The provisions of 38 C.F.R. § 17.1005 (2011) are more favorable to the Appellant's claim than the amended version of the regulation. 2. The Veteran was admitted to the Johnson County Medical Center for treatment of end-stage liver disease with massive ascites on September 16, 2008, and discharged to his home on September 27, 2008. 3. VA payment of unauthorized medical expenses incurred at Johnson City Medical Center from September 16, 2008, to September 17, 2008, was approved. 4. A VA physician has determined that the Veteran's condition became sufficiently stable for him to have been safely transferred approximately one mile from the Johnson County Medical Center to the VAMC on September 17, 2008, and the VAMC was available for such a transfer on that date. CONCLUSION OF LAW The criteria for payment or reimbursement of unauthorized medical expenses incurred at Johnson City Medical Center from September 18, 2008, to September 27, 2008, have not been met. 38 U.S.C.A. §§ 1725, 1728, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 17.1000, 17.1002, 17.1005 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA has not yet been found to specifically apply to claims of reimbursement or payment of unauthorized medical expenses. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). Moreover, even if VCAA notice requirements were found to be applicable, there has been no indication in this case that the Appellant has been prejudiced by any notice failure, and therefore any failure to notify her is considered to be at most harmless error. See Beverly v. Nicholson, 19 Vet. App. 394, 402-403 (2005). II. Reimbursement or Payment of Unauthorized Medical Expenses The Appellant's eligibility for payment or reimbursement of unauthorized medical expenses is to be adjudicated under the provisions of 38 U.S.C.A. §§ 1725, 1728 (West 2002 & Supp. 2011). Those laws were amended effective as of October 10, 2008. The Appellant's October 2008 claim was received by VA on October 13, 2008. Therefore, the amended version of 38 U.S.C.A. §§ 1725, 1728 are for application. The Secretary of VA shall reimburse veterans for the customary and usual charges of non-VA emergency treatment (including travel and incidental expenses) where such emergency treatment was rendered to such veterans in need thereof for: (1) an adjudicated service-connected disability; (2) a nonservice-connected disability associated with and held to be aggravating a service-connected disability; (3) any disability of a veteran if the veteran has a total disability permanent in nature from a service-connected disability; or (4) any illness, injury, or dental condition of a veteran who is a participant in a vocational rehabilitation program and is medically determined to have been in need of care or treatment to make possible the veteran's entrance into a course of training, or prevent interruption of a course of training, or hasten the return to a course of training which was interrupted because of such illness, injury, or dental condition. The term "emergency treatment" is as defined in 38 U.S.C.A. § 1725 (f)(1) (West 2002 and Suppl. 2011). 38 U.S.C.A. § 1728 (West 2002 and Suppl. 2011); 38 C.F.R. § 17.1002 (2011). In September 2008, the Veteran was not service-connected for any disability and was not a participant in a vocational rehabilitation program. Therefore, the Appellant is not eligible for payment or reimbursement under 38 U.S.C. § 1728 for the emergency treatment provided. VA payment or reimbursement for non-VA emergency services furnished to a veteran for nonservice-connected conditions is available under 38 U.S.C.A. § 1725 (West 2002 & Supp. 2011); 38 C.F.R. § 17.1000, 17.1002 (2011). The statute directs, in pertinent part, that: (a) General authority.--(1) Subject to subsections (c) and (d), the Secretary shall reimburse a veteran described in subsection (b) for the reasonable value of emergency treatment furnished the veteran in a non-Department facility. *** (b) Eligibility.--(1) A veteran referred to in subsection (a)(1) is an individual who is an active Department health-care participant who is personally liable for emergency treatment furnished the veteran in a non-Department facility. (2) A veteran is an active Department health-care participant if- (A) the veteran is enrolled in the health care system established under section 1705(a) of this title; and (B) the veteran received care under this chapter within the 24-month period preceding the furnishing of such emergency treatment. (3) A veteran is personally liable for emergency treatment furnished the veteran in a non-Department facility if the veteran- (A) is financially liable to the provider of emergency treatment for that treatment; (B) has no entitlement to care or services under a health-plan contract (determined, in the case of a health-plan contract as defined in subsection (f)(2)(B) or (f)(2)(C), without regard to any requirement or limitation relating to eligibility for care or services from any department or agency of the United States); (C) has no other contractual or legal recourse against a third party that would, in whole, extinguish such liability to the provider; and (D) is not eligible for reimbursement for medical care or services under section 1728 of this title. *** (f) Definitions.--For purposes of this section: (1) The term "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- (i) 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 provisions of 38 C.F.R. § 17.1002 (2011) clarify that: Payment or reimbursement under 38 U.S.C. § 1725 for emergency services may be made only if all of the following conditions are met: (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 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 the 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). In its May 2010 Remand, the Board conveyed that: The Board accepts Johnson City Medical Center as a facility held out as providing emergency care to the public. Also, because VA has paid the medical expenses incurred in the Johnson City Medical Center emergency room from September 16, 2008, through September 17, 2008, whether or not the Veteran's condition was emergent is not at issue. Furthermore, it is not disputed that the Veteran was enrolled in the VA health care system and had received medical services within the 24-month period prior to the emergency treatment in issue herein. The record shows the Veteran is financially liable for the treatment rendered at Johnson City Medical Center, and there is no evidence to suggest that the condition for which the Veteran received treatment was caused by an accident or work-related injury. The Board notes that the Appellant's claim for reimbursement was filed in a timely manner within 90 days after termination of medical care, see 38 C.F.R. § 17.1004(d). Additionally, although the file shows that the Veteran had coverage under Medicare, VA found that this coverage was under Medicare A only and accordingly approved the Veteran's emergency medical care expenses from September 16, 2008, through September 17, 2008. The remaining issues are at what point the Veteran became stabilized such that he could be discharged or transferred to a VA or other Federal facility, and whether a VA or other Federal facility was feasibly available at that time. Prior to June 20, 2012, the provisions of 38 C.F.R. § 17.1005 directed that (a) Payment or reimbursement for emergency treatment under 38 U.S.C. 1725 shall be the lesser of the amount for which the veteran is personally liable or 70 percent of the amount under the applicable Medicare fee schedule for such treatment. (b) Reimbursement or payment for emergency treatment may be made only for the period from the beginning of the initial evaluation treatment until such time as the veteran could be safely discharged or transferred to a VA facility or other Federal facility. For purposes of payment or reimbursement under 38 U.S.C. 1725, VA deems it safe for the veteran to be transferred once the veteran has become stabilized. On January 20, 2012, the Secretary of VA amended 38 C.F.R. § 17.1005. The amended regulation directs that: a) Payment or reimbursement for emergency treatment under 38 U.S.C. 1725 shall be the lesser of the amount for which the veteran is personally liable or 70 percent of the amount under the applicable Medicare fee schedule for such treatment. (b) Except as provided in paragraph (c) of this section, VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, a veteran who received emergency treatment: (1) Could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) Could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. (c) Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may be approved for continued, non-emergency treatment, only if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans) and the transfer of the veteran was not accepted, and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to VA (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record. (d) If a stabilized veteran who requires continued non-emergency treatment refuses to be transferred to an available VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the veteran up to the point of refusal of transfer by the veteran. The Board will consider the Appellant's claim under the prior version of 38 C.F.R. § 17.1005 as it is less specific and generally more favorable to the Appellant's claim. Cohen v. Brown, 10 Vet. App. 128, 139(1997); Fugere v. Derwinski, 1 Vet. App. 103, 109 (1990). A September 2008 hospital summary from Johnson County Medical Center indicates that the Veteran was admitted for treatment of end-stage liver disease with massive ascites on September 16, 2008. He was discharged to his home on September 27, 2008. A September 22, 2008, VA Transfer Coordinator progress note indicates that a social worker from Johnson County Medical Center called and informed the VAMC that the Veteran had been admitted on September 16, 2008, had been treated for advanced liver disease with abdominal distention; and underwent paracentesis. The social worker stated that she would "discuss transfer with the family." A September 26, 2008, VA Transfer Coordinator progress note states that a social worker from Johnson County Medical Center informed VA that the Veteran was being discharged to his home on September 27, 2008. In her September 2009 Appeal to the Board (VA Form 9), the Appellant advanced that: While [the Veteran] was hospitalized, I had numerous conversations with Johnson City Medical Center personnel (doctors, nurses, social workers, and patient advocates) concerning the possibility of moving [the Veteran] to the VA hospital, but I was always told that the doctors felt that he was too sick to be transferred. I wanted my husband to be transferred to the VA - I knew that his medical records and the doctors and nurses that had care for him for many years were at the VA. The doctors at the Johnson City Medical Center would not transfer him. *** I do not know how I was supposed to transfer him when his doctors at the Johnson City Medical Center told me that he was not well enough to be transferred. A September 2010 written statement from a reviewing VA physician conveys that: 3. Per the documentation submitted with the remand request for opinion, the patient was admitted at 1922 on Tuesday, 16 Sep 08 with the admitting physician noting admission diagnoses of "new onset jaundice, ascites, and renal failure." The orders and notes indicate that the Veteran was on the inpatient wards and was stable enough to be transported to consultations and diagnostic imaging studies elsewhere in the hospital. The laboratory studies indicate significant acute renal insufficiency but not life-threatening elevation of blood potassium or build up of acid in the bloodstream. 4. Johnson City Medical Center is located one mile northwest of the VAMC. Ambulance transfer takes three to five minutes, E.R. to E.R. A patient in the condition implied by the medical documentation available to me indicates that safe and rapid ambulance transportation could have been undertaken on 17 Sep 08. 5. The VAMC Emergency Department was transiently on "diversion" status on 25 September 2008 during the period of concern (18 to 27 September, 2008). At no other times during the period of interest is there documentation the facility was blocked to outside stable patient transfers. During the same period of interest, the VA computerized medical record contains the first record of a telephone inquiry received from Johnson City Medical Center or the family to the Transfer Coordinators regarding advisement of [the Veteran's] hospitalization at JCMC or requests for his transfer prior to 22 Sep 08. 6. In summary, after having reviewed the clinical documentation from Johnson City Medical Center regarding the patient's admission, the Facility diversion status documentation, and the CPRS records, I have concluded that the patient was medically sufficiently stable enough to safely be transported the one mile/3-5 minute ambulance drive to the VAMC on the 17th of September, 2008. The Board has reviewed the probative evidence of record including the Appellant's written statements on appeal. The designated VA clinician determined both that (1) the Veteran "was medically sufficiently stable enough to safely be transported the one mile/3-5 minute ambulance drive to the VAMC on the 17th of September, 2008" and (2) the VAMC was available for such a transfer on that date. The VA physician's conclusions were based upon a thorough review of the relevant clinical and hospital records. The Appellant advances that while she sought transfer of the Veteran to the VAMC, his private treating physicians told her that he "was too sick to be transferred." The Board observes that the Appellant's assertion appears to be at odds with the VA Transfer Coordinator's notation that a social worker was to initially discuss such a transfer with the Veteran's family on September 22, 2008, and would thereafter make such arrangements if the family so desired. Additionally, while the Appellant insists that numerous people told her that the Veteran was too sick to move, no evidence, aside from the Appellant's own statements, has been advanced to show that the Veteran was too sick to be moved safely to VA. The Board is sympathetic toward the Appellant, but it is bound by the law, and this 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 equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no 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). Unauthorized medical expenses incurred after the point in time at which the Veteran could be safely transferred to an available VA facility are not subject to reimbursement or payment. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2011); 38 U.S.C.A. § 1702(d), 17.1005(b) (2011). The reviewing VA clinician determined that the Veteran was stable for transfer to the available VAMC as of September 17, 2006. This opinion has not been contradicted by any other medical evidence. Therefore, the benefit sought on appeal is denied. ORDER Payment or reimbursement of unauthorized medical expenses incurred at Johnson City Medical Center from September 18, 2008, to September 27, 2008, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs