Citation Nr: 1301940 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-32 408A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Miami, Florida THE ISSUE Entitlement to payment or reimbursement for medical services provided by Jackson South Community Hospital from May 31, 2008 to June 7, 2008. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to February 2000. This case is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Medical Center in Miami, Florida. FINDINGS OF FACT 1. The Veteran has been receiving a total rating based on individual unemployability (TDIU) since February 2004; he has been receiving a permanent and total rating for his service-connected disabilities; and, in pertinent part, is service-connected for a seizure disorder. 2. The Veteran received medical treatment at Jackson South Community Hospital from May 28, 2008 to June 7, 2008, for a medical emergency. 3. VA payment or reimbursement of the costs of the private medical care provided at Jackson South Community Hospital from May 28, 2008 to June 7, 2008, was not authorized prior to the Veteran's undergoing that treatment and an application was not made to VA within 72 hours after the hour of admission for authorization. 4. VA has already paid for the portion of the Veteran's treatment at Jackson South Community Hospital from May 28, 2008 to May 30, 2008 5. When the Veteran was admitted to Jackson South Community Hospital on May 28, 2008, no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable. 6. For the entire duration of the Veteran's medical treatment at Jackson South Community Hospital from May 28, 2008 to June 7, 2008, to include the period from May 31, 2008 to June 7, 2008, the Veteran's condition had not stabilized. CONCLUSION OF LAW Payment or reimbursement for medical expenses incurred at Jackson South Community Hospital from May 31, 2008 to June 7, 2008, is warranted. 38 U.S.C.A. § 1728 (West 2002 & Supp. 2012); 38 C.F.R. § 17.120 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. The Veteran has been receiving a TDIU since February 2004 and is in receipt of a permanent and total rating for his service-connected disabilities. In pertinent part, the Veteran is service-connected for a seizure disorder. The Veteran was hospitalized at Jackson South Community Hospital from May 28, 2008 to June 7, 2008, after suffering a seizure. According to the medical records contained in the record, to include two letters from R.S.P., M.D., F.C.C.P., the Veteran's treating physician for the care provided at Jackson South Community Hospital, dated respectively in July 2009 and September 2009, the Veteran was admitted after suffering a grand mal seizure. He was in shock and had a major saddle pulmonary embolus due to immobility of the right leg following recent surgery for right Achilles tendon rupture. He was hypotensive and in shock, requiring full support. It was felt by the intensive care services that the Veteran required a stay in the intensive care unit (ICU) and received care and therapy for shock, and then placed on heparin therapy. During the hospital course, the Veteran was later transferred to the telemetry unit. The physician stated that the Veteran was not stable enough to be transferred to a regular medical floor. The Veteran remained in the telemetry unit until his discharge and required subsequent care. During the course of the hospitalization, the Veteran remained unstable according to Dr. P., who explained that the Veteran had the effects of heparin therapy which included the medication Coumadin. He indicated that Coumadin and heparin were both used simultaneously in the presence of Dilantin. This combination required appropriate management or there was potential significant harm. He stated that the Veteran required close monitoring and did in fact have a negative reaction. He then took a long time to metabolize and therapeutically achieve the anticoagulant effects of the Coumadin. It was noted that the Veteran could have been significantly compromised if active bleeding had occurred. Coumadin was noted to one of the top 10 dangerous drugs in its use with Dilantin. Dr. P. also noted that the Veteran rapidly metabolized his seizure medication and it was thought that the administration of Coumadin with its interaction with the seizure medication made it difficult to get the Veteran fully anticoagulated. The Veteran was apparently given Coumadin at increasing dosages and cautiously monitored for Coumadin and seizure medication interaction. The physician felt that this close monitoring of the drug combination and follow-up care was necessary to prevent mortality. Dr. P. reported that he is the medical director of the ICU at the treating hospital. The Veteran's underlying clinical records have also been reviewed. While the AOJ considered the Veteran's claim under the Millennium Bill, it must first be determined whether the Veteran is eligible for reimbursement under 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725; 38 C.F.R. § 17.1002(i). There is no prejudice in the Board making this determination, as the claim is being granted. Initially, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical services. See 38 U.S.C.A. § 1703(a); see also 38 C.F.R. § 17.54. 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 Veterans, VA may contract for private care in certain limited circumstances, including cases where a medical emergency exists. Pursuant to 38 U.S.C.A. § 1703(a), "When Department [of Veterans Affairs] 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: Hospital 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.A § 1703(a)(3); 38 C.F.R. § 17.52. Non-VA treatment at the expense of VA must be authorized in advance. 38 C.F.R. § 17.54; see Malone v. Gober, 10 Vet. App. 539, 541 (1997); see also 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. Under the provisions of 38 C.F.R. § 17.52(a), VA may contract with non-VA facilities for care in accordance with the provisions of this section when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required. When demand is only for infrequent use, individual authorizations may be used. Normally, however, such care in public or private facilities will only be authorized, whether under a contract or an individual authorization, under the specific circumstances delineated in 38 C.F.R. § 17.52(a) which include treatment for a disability of a Veteran with a permanent and total rating. In this case, the record reflects that there was no advance authorization for payment of the private medical expense incurred at Jackson South Community Hospital from May 28, 2008 (the date of the initial admission) to June 7, 2008. After receiving the private treatment, the Veteran did not make an application to VA within 72 hours after the hour of admission for authorization. Therefore, there was no preauthorization and no record of application made to VA within 72 hours after the hour of admission to the private facility. 38 C.F.R. § 17.54. VA in fact has paid for the hospitalization period from May 28, 2008 to May 30, 2008. Thus, there is no evidence that the Veteran obtained proper authorization for payment of the private medical expenses provided by Jackson South Community Hospital. Accordingly, the Board must conclude that prior authorization was not obtained pursuant to 38 C.F.R. § 17.54, and that payment is not warranted for expenses incurred in conjunction with the private treatment under 38 U.S.C.A. § 1703. Alternatively, reimbursement for unauthorized medical expenses may be made pursuant to 38 U.S.C.A. § 1728. Generally, in order to be entitled to payment or reimbursement of medical expenses incurred at a non-VA facility, a claimant must satisfy three conditions. There must be a showing that three criteria are met: (a) The care and services rendered were either: (1) for an adjudicated service-connected disability, or (2) for a nonservice- connected disability associated with and held to be aggravating an adjudicated service-connected disability, or (3) for any disability of a Veteran who has a total disability, permanent in nature, resulting from a service-connected disability, or (4) for any injury, illness, or dental condition in the case of a Veteran who is participating in a rehabilitation program and who is medically determined to be in need of hospital care or medical services for reasons set forth in 38 C.F.R. § 17.47(i) (formerly § 17.48(j)) (2000); and (b) The services were rendered in a medical emergency of such nature that delay would have been hazardous to life or health; and (c) No VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v. West, 11 Vet. App. 45, 49 (1998). As noted, the Veteran is service-connected for a seizure disorder and was admitted following a grand mal seizure. Thus, criterion (a) is met. The treatment rendered at Jackson South Community Hospital, was provided on an emergent basis. VA has already basically conceded this was the case as the first days of treatment have been paid for. Moreover, the record establishes that the Veteran's medical situation was emergent in nature. Also, and significantly, the Board finds that the emergency continued throughout the entire hospitalization period. Dr. P. provided extensive rationale for why the Veteran remained in a precarious medical state with the persistent threat of death during the hospitalization. His opinion is uncontradicted in the record. Thus criterion (b) is met. Further, no VA or other Federal facilities were feasibly available and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable. Again, as noted, VA has paid for the first days of treatment, conceding that VA services were unavailable to the Veteran through May 30, 2008. However, VA has maintained that the Veteran could then have been transferred when he became stable on May 30, 2008, and the AOJ has denied payment for the period of May 31, 2008 through June 7, 2008. The Board finds that this was not the case. Based on Dr. P.'s letter, it is clear that the Veteran was not stable and it would have been potentially life-threatening and to interrupt his care and therefore unsafe to transfer the Veteran during the course of his hospital treatment at Jackson South Community Hospital. His opinion is uncontroverted in the record and probative on that point. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, criterion (c) is met. Accordingly, the three enumerated criteria have been met for entitlement to payment or reimbursement for unauthorized medical services provided Jackson South Community Hospital from May 31, 2008 to June 7, 2008. Therefore, since the criteria under 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120 have been met, the claim for reimbursement is granted. ORDER Payment or reimbursement for medical expenses incurred at Jackson South Community Hospital from May 31, 2008 to June 7, 2008, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs