Citation Nr: 1300302	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  09-31 821	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in New Orleans, Louisiana


THE ISSUE

Entitlement to reimbursement or payment of unauthorized medical expenses incurred at Ochsner Medical Center, BR, from January 18-19, 2007.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran served on active duty from October 1958 to July 1961.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision in June 2007 by the South Central VA Health Care Network in Jackson, Mississippi, via the VA Fee Office in Flowood, Mississippi.  A notice of disagreement was received in August 2007, and a statement of the case was issued in March 2008.  While the Veteran's Form 9 Appeal received in August 2009 was not timely, the AOJ is deemed to have waived any deficiencies regarding the timeliness of the substantive appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (by treating the matter as if it were part of the timely filed Substantive Appeal, VA waived any objections it might have had to the timeliness of filing). 

A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal.  


FINDINGS OF FACT

1. The Veteran received private medical care from January 18, 2007 to January 19, 2007.  

2. The Veteran is ineligible for reimbursement under 38 U.S.C.A. § 1728.  

3. A prudent lay person would have reasonably expected that delay in seeking immediate medical attention on January 18, 2007 would have been hazardous to life or health.

4. Given the emergent nature of the Veteran's condition on January 19, 2007, a VA facility was not feasibly available.


CONCLUSION OF LAW

The requirements for entitlement to payment or reimbursement for the cost of unauthorized medical treatment provided at Ochsner Medical Center, BR, from January 18-19, 2007 have been met.  38 U.S.C.A. § 1725 (West 2002 & Supp. 2012); 38 C.F.R. § 17.1002 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Legal Criteria

The Board notes that there is no indication from the record, nor has the Veteran alleged, that he meets any criterion for benefits under 38 U.S.C.A. § 1728 (applicable where a Veteran has a total disability, or, treatment at the private medical facility was for an adjudicated service-connected disability, a non-service-connected disability associated with and held to be aggravating an adjudicated service-connected disability, or for any treatment of a veteran who is participating in a rehabilitation program).  See 38 C.F.R. § 17.120.  Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002.

According to 38 C.F.R. § 17.1002, payment or reimbursement for emergency treatment for nonservice-connected disabilities in non-VA facilities is made only if all of the following criteria are met:

(a)  The emergency services were provided in a hospital emergency department or 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 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 was 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 that VA has an agreement with to furnish health care services for veterans 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 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.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 the 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 veteran's, primarily those who receive emergency treatment for a service-connected disability).

See 38 C.F.R. § 17.1002.  The Board notes that during the pendency of the appeal 38 U.S.C. § 1725 was amended in October 2008 and in February 2010; however, the amendments are either not substantive or not applicable in the instant case.  The Board further notes that 38 C.F.R. § 17.1002 also was amended on two occasions during the pendency of the appeal but neither change represents a substantive change in the applicable regulation.  The first amendment was in December 2011, which became effective as of January 20, 2012, and involved revising the introductory text, removing paragraph (d) that discussed payment for medical care beyond the initial emergency, redesignating paragraphs (e) through (i) as new paragraphs (d) through (h) and revising the wording in paragraph (c) to include "(a) VA or other Federal facility provider that VA has an agreement with to furnish health care service for veterans".  See 76 Fed. Reg. 79,067-79,072 (Dec. 21, 2011).  The second amendment was in April 2012, effective as of May 12, 2012.  The change removed the words "or in part" from paragraph (g) as it existed prior to the change made in December 2011.  See 77 Fed. Reg. 23,615-23, 618 (April 20, 2012).  

Analysis

The Veteran asserts that the treatment he received at Ochsner Medical Center January 18th-19th was rendered in a medical emergency.  VA did not authorize payment or reimbursement for such treatment and denied the Veteran's claim based on the determination that VA facilities were feasibly available to provide the care.  The Veteran is seeking reimbursement or payment of the costs associated with medical services he received at Ochsner Medical Center, BR, from January 18-19, 2007.  

Based on the evidence presented, the Board finds in favor of the claim as the criteria for benefits pursuant to 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002 have been met.  In this regard, it is established that emergency services were provided in a hospital emergency department.  The evidence demonstrates that the Veteran sought treatment for a medical emergency of such nature that delay would have been hazardous to life or health.  The Veteran stated that on January 18th around 11:00 PM he started experiencing chest pain, problems breathing, and he thought he was having a heart attack.  His daughter took him to the emergency room at Oschner Medical Center in Baton Rouge. 

Hospital records show that the Veteran was admitted to the emergency room on January 18th at 11:39 PM (2339) for shortness of breath.  The examiner noted a history of hypertension and that the Veteran had fatigue and bradycardia.  Intravenous therapy was given.  An electrocardiogram (EKG) and a chest x-ray were done on January 19th.  The chest x-ray was normal.  The EKG showed left ventricular hypertrophy with repolarization abnormality.  The Veteran's condition stabilized by January 19th and the examiner indicated that the Veteran felt better, did not have shortness of breath or chest pain.  It was noted that the condition may have been secondary to his medication.  The Veteran was advised to follow-up with a cardiologist.  The clinical impression was fatigue and cough.  The Board finds that based upon the evidence, the emergent nature of the Veteran's condition seemed evident.  The Veteran's contention that he believed he was having a heart attack is credible and consistent with his medical history of heart problems. 

Turning to the feasible availability of VA care, the Veteran explained that he tried calling the nearest VA clinic in Baton Rouge but it was closed and the recording advised to call 911 for emergency situations.  The Board notes that the Veteran resides in Zachary, Louisiana, and the VA clinic in Baton Rouge is open week days from 7:30 AM to 4:00 PM.  Given the Veteran's chest pains and history of hypertension, as a "prudent layperson," the Veteran could have reasonably expected that a delay in seeking treatment would have been hazardous to his health or life.  Accordingly, given the emergent nature of the circumstances and the presumed necessity for emergency care, it is clear that a VA medical facility was not feasibly available.  

Further, the evidence does not show that the Veteran received care at Ochsner Medical Center, BR, beyond the initial emergency as he was admitted on January 18th, was kept overnight, and was discharged the next day after the necessary testing was done and his condition stabilized.  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 as evidenced by a report of contact dated in June 2007 that shows the Veteran was treated by VA on December 1, 2006.  The Veteran is financially liable to the provider of emergency treatment and does not have coverage under a health-plan contract for payment or reimbursement.  The emergency treatment he received was not for a work-related incident and he is not eligible for reimbursement under 38 U.S.C.A. 1728 because the emergency treatment was not for a service-connected disability.  

Accordingly, the record demonstrates that from January 18-19, 2007, the Veteran sought treatment for a condition which he reasonably believed posed an imminent risk to his life and/or health and there was no medical facility feasibly available.  Therefore, the Board finds that the Veteran meets the criteria for reimbursement or payment by the Department of Veterans Affairs for the cost of unauthorized medical treatment provided at Ochsner Medical Center, BR, from January 18-19, 2007.  The benefit sought on appeal is granted.


ORDER

Entitlement to reimbursement or payment of unauthorized medical expenses incurred at Ochsner Medical Center, BR, from January 18-19, 2007, is granted




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs