Citation Nr: 1237992 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 10-18 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Tennessee Valley Healthcare System, in Murfreesboro, Tennessee THE ISSUE Entitlement to reimbursement for, or payment of, unauthorized medical expenses for an episode of low back care on November 26, 2008, from Chattanooga Emergency Medicine and Memorial North Park Health System. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from administrative decisions of the Department of Veterans Affairs (VA) Tennessee Valley Healthcare System (VAMC) located in Murfreesboro, Tennessee, that denied the Veteran's claim for reimbursement for, or payment of, unauthorized medical expenses for an episode of low back care on November 26, 2008 at Chattanooga Emergency Medicine and Memorial North Park Health System. The appeal is REMANDED to the Department of Veterans Affairs VAMC in Murfreesboro, Tennessee. VA will notify the appellant if further action is required. REMAND The Veteran seeks reimbursement for, or payment of, unauthorized medical expenses for an episode of low back care on November 26, 2008, from Chattanooga Emergency Medicine and Memorial North Park Health System. Based on a review of the record, the Board finds that additional development is needed prior to adjudication of this matter. In adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the claimant received in a private facility. See 38 U.S.C.A. § 1703(a) (West 2002); see also 38 C.F.R. § 17.54 (2012). This is a factual not a medical determination. See Similes v. Brown, 6 Vet. App. 555 (1994). Otherwise, payment or reimbursement for emergency services for nonservice-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, Pub. L. No. 106-117, 113 Stat. 1553 (1999). To be eligible for reimbursement under this authority the Veteran 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). 38 C.F.R. § 17.1002 (2012). On November 26, 2008, the Veteran received emergency room treatment from Chattanooga Emergency Medicine and Memorial North Park Health System. The medical reimbursement claim process was initiated shortly thereafter, in December 2008, by these private medical providers. In this case, the Veteran appears to argue that she is entitled to reimbursement or payment either on the basis of prior authorization or on the basis that it was for treatment of a medical emergency for which a VA medical facility was not feasibly available. In her February 2009 notice of disagreement, the Veteran reports that on November 26, 2008, she was advised by VA medical personnel to seek emergency medical treatment for her low back pain, because a VA doctor was unavailable to treat her or prescribe her additional pain medication until her future scheduled appointment. The Veteran stated that she had previously sought VA treatment, but her treating VA nurse failed to order all the medications that she needed. She was advised that her medications could not be changed until she saw a doctor; however, a VA doctor was not currently available for an appointment. She was then advised to seek emergency care for her current low back symptoms. A November 26, 2008, emergency room triage record from Memorial Health Care System shows that the Veteran presented at 3:36PM with complaints of back pain from an injury she incurred at 12:30PM while moving furniture. She reported a history of intermittent mild back pain for the past two to three days that increased with severity with range of motion. The Veteran further reported that she had been moving and lifting boxes on the day before and she had take muscle relaxers which provided some pain relief, but her current pain felt "different." She had taken a muscle relaxer at 1:30PM that day, without relief of her pain. She described her current pain at a level of 10 out of a zero to 10 scale. On the emergency room nursing assessment, it was noted that the Veteran was able to ambulate from the lobby to the treatment room. The Veteran was assessed with an acute lumbar strain and she was treated with pain medications, including morphine. She was advised to seek follow-up treatment from her VA medical provider. (Notably, the Veteran reported that she was unable to receive any scheduled VA treatment until January 2009). VA opinions dated in January 2009 and May 2010 indicate that, after a review of the Veteran's private medical records, the Veteran received non-emergent private care in preference of available VA or federal medical facilities. It was noted that her lumbar back pain had been present for two to three days, and the pain was chronic in nature. In the January 2009 administrative decisions and May 2010 statement of the case, the VA Tennessee Valley Healthcare System denied the Veteran's claim for reimbursement, because the private care and services were not rendered in a medical emergency of such nature that delay would have been hazardous to life or health. The decision also noted that VA facilities were feasibly available to provide the care. Having reviewed the record, the Board finds that additional development is needed prior to the adjudication of the Veteran's claim. In particular, the Board finds that the outstanding records of the VA treatment for low back pain and the report of contact or telephone conversation on November 26, 2008 between the Veteran and the VA medical personnel would be beneficial in the deciding this matter. Here, it does not appear that her VA medical records have been officially requested. Those outstanding VA treatment records may contain some documentation of such a phone call conversation or even prior authorization for emergency treatment outside of VA's healthcare system on November 26, 2008. But having said that, payments from the Federal Treasury must be authorized by statute, so government employees may not make obligations that were beyond the scope authorized by statute. See Zimick v. West, 11 Vet. App. 45, 50-52 (1998). (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. 1341(a)). Nevertheless, VA needs to try and obtain any such documentary records before deciding this appeal, as part of the duty to assist the Veteran with this claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive, if not actual, notice of this evidence because it is generated within VA's healthcare system). See also 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2), (c)(3). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to assist in the search for her VA treatment records by specifying the dates, locations, and providers of low back treatment at VA facilities. After allowing an appropriate time for response, contact the VA Tennessee Valley Healthcare System, as well as all facilities she identifies, to obtain all of her available treatment records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 2. Also ask the Veteran to assist in obtaining any additional records by clarifying the relevant dates of treatment, names of the treating physicians, phone numbers and addresses, or by herself providing these treatment records if, for example, she has them in her personal possession. If she provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2012). 3. Thereafter, the VAMC should readjudicate the Veteran's claim in light of all additional evidence obtained. If the claim continues to be denied, send her a supplemental statement of the case (SSOC) and give her time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).